morning your honour's and may it please the court i'm eric here representing dish your honor is this court has repeatedly and recently emphasized the very limited purpose of section ten injunctions under that provision are meant to be rare in order to avoid what this court has referred to as short circuiting the process of the n l r b which has principal responsibility over disputes concerning purportedly unfair labor practices that's wh creative vision makes clear that a section ten j injunction is only available first for harms that are agreed justice quote as measured against other unfair labor practices and second where quote any final order of the n l r b and this language is critical and the final order of the n l r b would be meaningless and the remedial purposes of the act will be frustrated without an injunction that's creative vision it t ninety nine in short these injunctions are available to prevent unusually serious and lasting harms so for instance an injunction may be available and again this is a quote from creative vision when an unfair labor practice tends to decimate and entire workforce that's creative vision a three hundred but here the district court didn't apply those legal standards and if it had the standards could not be satisfied first it failed to perform the comparison the creative vision requires you also have you seen that comparison creative vision even gauge in that kind of comparison of when you were three precedents where where the the harrell case harrell versus ridgewood in the northern district of alabama which followed this court's prior precedents and relied heavily on creative vision and understood itself as having to undertake exactly that kind of comparative analysis and the reason for it is to make sure that the harms truly are as this court repeatedly has said agree just or exception all of the circuit court case  circuit has done this sort of your other cases and here's where we put the seriousness in relationship to those other cases i'm not sure there are any one way or the other since creative vision your honor there's the earlier third circuit case in it does or at least talks about a very similar type of inquiry both in creative vision essentially overruled or earlier section ten cases because you can see they didn't do that right i don't know that i would say that it overruled them your honor but well their approach is we should no longer follow the approach of those two cases which did not you agree those earlier cases didn't engage in this explicit comparison not in the same type of way your honor but creative vision was interpreted in those cases it relied very heavily on them and it said we're lying on the language of those cases how do you figure out whether something is agreed just or exceptional you look and see what else is out there as a basis for comparison and i would emphasize that even if the court reads creative vision differently than than where advocating the fundamental standard and there's no dispute about this this is a language from a pilot for a carriers and it's the language i quoted a discretion here so why wasn't at least within judge o'connor's discretion to say given the there's a fifty percent pay cut and it was the first time the union was ever trying to negotiate a deal why couldn't he concluded that was going to really hurt the union something that couldn't be remedied by board action years down the road but because everything that the court identified as either is harm that absolutely could be leader of the union leaves the company so i want to answer that question in two parts if i can i think the first place to start is to look at other cases leave aside what you think about creative vision but is kind of a benchmark for what's really meant to be what section ten j is meant to deal with so create a vision looks at cases like hers and moran were literally the entire union workforce is being decimated or indeed the union site is being shut down and the reason for that and this is the second part of the answer is that i'm your erosion of support isn't the sort of thing that section ten chair a is meant to deal with creative vision is absolutely explicit about this it says most if not all conduct that's for hit by the n l r a has the potential to and often does cause serious harm to competing unions that said to ninety nine and then you say if it's decimated it would be appropriate so how much you rosen what's the standard well so the standard is that it has to be a harm that cannot be repaired by a board order so what the district court here said is when pay went down went down all right fair enough and there's some indication of that in the record but what the district court didn't find and couldn't find is that when pay went up morale would go back up what we know goodwill but whatever it is the people sort of have their view of the union developed over a number of decades here it was the very first time the union they'd just been represented chosen to be represented it was the first time the union was trying to negotiate a deal  so and their wages get cut in half and twenty percent below what anyone else in the company is making isn't that just logically going to lead to the types of text messages in the record of why we join this union that was a terrible mistake but again your honor the harm has to be irreparable what you would have to have here is a conclusion that if at the end of the board practices following the relief that the a l j indeed temporarily has has awarded here reinstatement back pay the health plan going up that that morale wouldn't record for but i do want to make sure to emphasize recall that the district court principally relied upon not the moral but the financial harms if you trace through the district harrell is is a great example and it's one of the few cases that that i would emphasise for your honor so and hair all this is the american red cross case there was an eighty eight percent drop in union attendance this was not  routine i'm not sure i'm following the question but what's clear from harrell is that there was an eighty eight percent drop in union attendance there was a real live current harm where the union there was on the remedy the adverse impact to the union and the employees in the interim period mood you can't get back that loss of faith in the u s so to be clear two things your honor to the extent that what the seventh circuit is saying there is that a particular form of harm categorically can't be fixed or at a particular kind of unfair labor practice categorically qualifies for section tenchi relief this court has squarely rejected that reasoning and it did it in creative vision but i think it's important judge costed a point out that what the district court was principally relying on here at least in the discussion that we're talking about was the loss of numbers right but the court said is seventeen people left but what the court ignored entirely is that one thousand have been hired there are innumerable job applications the whitney smith expert report which is in the record to twenty nine sixty four to seventy two goes through this it shows that wages are competitive and indeed explains that dish is actually only hiring three percent of applicants and so the courts conclusion that that numbers were down tells us nothing numbers went right back of what you looking at is the union being irreparably harmed by what may be an unfair labor practice by we placing those who are present and how are they voting and have the experience of the union with people who do not have that  participation judge south like there is nothing in the record to support that recall that there had been a union decertify something in the record to support of these new people who are not part of the union when they are at least until they were important to they were not part of this back ground in this particular location to location with you so let me address both the people who left and the people who came first of all this there was a prior decertification petition because one call it the outside the employees didn't like this q p c plan and actually that decertification petition failed only by thirteen to eight we have no idea who left it may well be that the people who left were the people who like the union the least and that's why i was emphasizing to judge costa what we have here is just this this assertion about numbers some people left yes sure but some people came back and it's undisputed that they are all part of the bargaining unit and so to the extent that that what the district court was relying on was just this question about numbers the numbers are back i do want to get back to the point i was starting to try to make to judge kos to recall that the order here is principally focused on financial harms that's what the district court starts with in the district court says the drastic cut is exceptional without reference to any other allegations that's in the record twenty six seventy seven that's the district court's order and the regional director no longer frankly really even defends that the regional director says in the first page of their brief this case is not about monetary losses and in direct conflict with what the district co purported to hold is the basis for the injunction says the wage cut standing alone was not sufficient that's the regional directors brief at forty seven the linchpin for the district court's analysis is the financial harm and that financial harm doesn't suffice as a matter of law and the regional director appropriately doesn't defend it and so that's why at page twenty six eighty the district court ends up having to pivot to this sort of extraordinary conclusion that there was a concrete possibility of a union dissolution and there is really no basis whatsoever to conclude that there is no indication that the union was going to dissolve there was not as in el paso disposal a decertification petition that was filed indeed the union could not dissolve because even if there had been a decertification petition it would have been held in abeyance in the meantime and that's why the district court ends up having to focus back on this question about loss of numbers and loss of morale but recall the creative vision and again i want to hasten to emphasize the language i quoted before create a vision says there's always going to be some amount of harm i mean of course there is if someone loses their pay they're going to be less happy with the union and they were before and creative vision acknowledges that three o two in many cases the union is weakened but that's not relief but what is enough i think we've we've has invited for trying to find exactly what it is and i think the answer is that there's no precise formula for what is enough it's a judgment call and so if we're in the world of judgement calls how do you get past the abuse of discretion standard well your honor of course abuse of discretion doesn't mean on the limited discretion i think the best way to think about it is that what you need is and usually serious and lasting damage to the union that is damage that cannot be remedied by a board decision and i think it's not an accident that in all of the cases we've been talking about you see something totally different then what we're talking about here actual overwhelming harm to the union and eighty eight percent drop in union attendance and that's just unlike what we have here which is this sort of vague question about morale and no finding that it won't bou is to ensure that the board's final order is not some meaningless declaration that's announced before an empty room how do we do that we do that by affirming the district court's order that rescinded the unlawful unilateral changes of the  wage system but we also need to enter a cease and desist order and joining dish for making further unilateral changes the district court's order with the status of the board proceeding the board proceeding your  honor in a ten day case they do the proceeding does get expedited both parties dishes filed exceptions the general counsels filed exceptions it's currently pending before the board unfortunately i don't have a time frame but it does it does get fast track because there's a standing injunction regarding the injunction on rescissions specifically it was not an abuse of discretion for three reasons first under creative vision the laws  circuit the unilateral replacement of q b c was indeed egregious second this case is night and day with creative vision in terms of how the district court order was written in terms of the facts in the record that there was indeed a likelihood of irreparable harm a few examples of mass resignations loss of support and i will go on shortly to where you basically agreeing then with your friend on the other side that this is not a no you're right he starts he makes a very large recall or he starts with the impetus for everything was q p c and that from there the harms cascaded as a result of that you start with the wage reduction fifty percent is is is a huge reduction right off the bat that's people's livelihoods they have been used to making that amount of money and then one day they're not making that amount of money from their end there is there is a record evidence in front of the district court that employees there was an inextricable link between employees views of the union and q p c they saw them as one in the same indeed there was one employee who testified in front of i don't recall to have the district court or the minister of judge that when the employer had its presentation announcing that key p c was going away the employee testified that he understood that the union was disbanding and therefore which demonstrates that there is this excuse me an extra couple link between the two the third reason why it was an abuse of discretion is that the irreparable harm will indeed result in an ineffective final board order because the union's base of support is gone and the union will likely not survive until the years later when the board does finally when the port does finally issue it for example we lost the union steward the union steward in the end r h unit a union steward generally that's your lifeline between the union and the employees when you lose that as i believe it was el paso dispose at that nucleus of support that's a huge blow to the union's base of support there's also the text messages between the employees showing that they don't even trust the union to help them anymore and importantly the employers managers told the new scheme and told the veteran employees as they were training new employees to not talk to new employees about the union specifically manager thomas he admitted it on direct testimony in front of the district court he said do not talk to the new employees about the union farmers branch manager also testified that he told employees not to talk to the new hires about existing medication where the district court did fail and it was an abuse of discretion was in failing to grant the cease and desist order against future unilateral changes in particular the  decision that issued shortly after the district court's order made it very clear the number of violations of found in particular to unlawfully unilaterally changed terms and conditions of employment for example and if you'd like to references this  is on our o a twenty seven ten as well as page twenty one of our record excerpts for example they failed to meet and bargain with the union at reasonable times they unilaterally rescinded q b c they unilaterally change the health care plan the unilaterally change leave benefits they unilaterally change the disciplinary policy for that there's abundant evidence that's both discussed in the district court's order and in the record of the various harms that dish is unlawful actions created therefore the judge in failing to the judge recognize that needed a unilateral decision of q p c but with all this other evidence of additional unilateral changes and dishes proclivity to float labor law that it was an abus instances i'm going to go to the most important one which is the district court's order acknowledge and this was in the first paragraph of the director's request for a cease and disorder when it said and i quote container seeks an injunction prohibiting alleged unfair labor practices of dish pending the final disposition of these matters that was an hour away twenty six sixty five there are a number of other points where we preserve that remington that the the standard here is that the district court had an opportunity to review this particular request it was not simply just in our petition papers it was in the briefing material and again that the district court essentially admits that it did papers assertion that injunctive relief is needed to prevent future unfair labor pact practices on the part of dish that's located at our zero eight twenty two eighteen as well as twenty two fifty five thing another thing i want to talk about is this the two part just improper increase that is in creative and we agree it is a two part increase however it is not a separate and distinct increase it is creative vision says that it is agreed just miss and if the final order is meaningless and create a vision clearly states and this is at page twenty nine that the two are quote considered in the conjunctive and of course that makes sense agree just harm just the first part creates a likelihood that a final board order will be meaningless that they're linked they have to be considered in the conjunct of therefore the of the the notion that you have to make this categorical comparison of the universe of of unfair labor practices or are you all pieces weavers we typically call them is simply not necessary it's the reasonable cause action portion that first part which of course is not at issue on this appeal but the reason because section takes care of that it identifies yes there is reasonable cause to believe that the act has been violated or done there the next is looking exclusively at the harm and what did the harms caused specifically in creative says this what did the harms cause in this case interestingly i noted that dish  mentioned just now the case of hershey dorsey trailers which is a case where it was that the entire workforce believe it was the issue of plant closure interestingly that case also says and i quote that the tenchi analysis quote must be guided by the particular facts in each case and that's the same issue here is we need to compare the harms in this case in particular in dish actually makes an excellent point in it's one of its rebuttal briefs well what happens when there's only one you will see when you have a case where there's only there's a single your p and therefore there's nothing else to compare it to compare the harms in this case creative answers that and it answers that because you look at it in the conjunctive you look at what harms flow from that you all p again here we had the unilateral wage reduction which which led to and i would say arguably it decimation of the unit it was indeed enter each branch of approximately thirty employees sixteen quit that's over half the unit if you look at  aggregate of the farmers branch and the n r h units that sixty employees seventeen quit using that's over a quarter that's a decimation of the barking at that's people gone within the first month ok wasn't there high turnover in any of the facilities whether they were unionized or not there was a high turnover but the high toner in the scheme of the turnover was lower at the the the units but in any event the question here about turnover about market rates these but these particular views that's the business lends to look at and that makes sense for a business standpoint we're looking at it through the end all and all are a lens and it's simply immaterial it's we just needed the increase here is to look at what happened there was a unilateral change what was the result of that half the employees quit that that bookends the increase right there in terms of the harm standard following how we can separate w natural consequences unrelated natural wrong word consequences unrelated to an unfair labor practice if that's what this was versus some other explanation it seems me creative vision is saying in fact you need to compare this situation to others and you want is excessive jim sort of compared to weigh the comparative her which you need to look at is versus the harms in this case and the judge here did that for example they compared they looked at what was the result of the  change there was the resignations there was the text messages we also petitioned for an injunction rescinding their changes to the health care plan the judge was quite explicit said the harms were merely speculative they were not substantial and identifiable that's the comparison of the harms in this case as creative vision says we looked at the judge looked at the harms looked at what the record supported in terms of the harms and he used his discretion which just or courts have wide discretion in this matter use the discretion to determine that it was only just improper to rescind the unilateral change also  terms of the level of harm what one distinction i want to make is the standard is not irreparable harm it is the likelihood of irreparable harm that the definition of irreparable harm is it cannot be repaired it's too late and  the harm standard that districts suggest is simply too high to look for this type of imminent irrevocable unequivocal irreparable harm would moot ten j completely because at that point simply too late neither an injunction nor a final border would be effective the inquiry is the likelihood of irreparable harm which is exactly what we had here it was moving towards a point of irreparable but the point of ten j is to move in and freeze the situation move it to the status quo ante and preserve it before a final border in particular i do want to discuss the fact that it was manifestly egregious that the harms that were caused by the unilateral change the mass resignations that i mentioned earlier in terms of fifty percent of and our rage a quarter of the entire unit there were employees whose who quit and testified they wouldn't even come back even if key p c was restored because they did not trust that the union would be able to stop the employer from making for the latter excuse me further unilateral changes as a reference that's an hour away twenty eight twenty seven there was another employee there was an affidavit that said that he had quit he moved out of state he wasn't coming back in particular that the one that really puts a fi point on this is the union steward at an r h he was the go between between the union and the employee it's and he originally he was he was the real cheerleader for the employees saying hate stick it out stay with it the union will be able to help us the board will be able to help us by october even he succumbed to the apathy and he quit so they lost a huge nucleus support and what's worse is no employee stepped in their place and it's not because no employee wanted is because employees were afraid remember that in the district court wasn't entirely sure about the effect of the text message saying the union is gone q p c is gone and terms of what was facetious what were suggest but there were small isolated points what's important is that employees knew that the union was gone and was going it was me that support was quickly draining from it further employees said what does it even matter the union is a third party to this another side is getting to the end of his rope financially  in any event the point is the harms here were cretinous they were exceptional and the facts on the ground at the time when when this order was put in was that the union was at the point of losing all spirit communication workers of america this case involves a situation where economic injury to employees cannot be separated from the injury to the union status as their recognized representative for the purposes of collective bargaining under the national labor relations act the testimony before the district court established that bargaining unit employees wore drifting away from the union because of the wage cut imposed by dish unlawfully as found by the ministry of the law judge and that caused them to second guess their decision to seek a representative for the purpose of collective bargaining and as to looking at the issue of how can you attribute the losses at farmers branch in northwich and hills to the wage cut the employees testified to that at the administrative they further in the district court proceeding testified as to how this had shaken their support for the union i would also like to point out that this case is the converse of an earlier case decided by the court was teamsters from the one nine hundred seventy is where the court in joint strike conduct by a union where the strike was going to pose both economic loss to the employer or forced the employer to acquiesce to the union and permit the union to gain a toehold here the union has in this case more than a toll we are the certified representative and the company is trying to  through this wage cut and that the best evidence that this is the company's intent is found in the text message that was sent out by a manager stating that the union is gone we are cutting wages and half and we want people to quit in mass so there is no doubt as to the motive in this case as to why the company cut the wages they did it to seek to force employees to quit and again if this is the converse of the teamsters case from the one nine hundred seventy s it is a union where yes there are economic damages that theoretically could be remedied at the conclusion of board proceedings but the damage the union standing cannot if everyone leaves and there are no supporters then the union cannot be in effect of collective bargaining representative for whomever remains and there's additional evidence in the record showing that managers were instructing people not to talk about the union so there would be no way to proselytize to the new hires and with that i think you for your your honors i'd like to make no more than than three or four hopefully quick points first of all i think the most critical thing that we've heard this morning is the justification that the regional director just provided it is full of hyperbole things like the union will not survive based on facts that the district court specifically declined to rely upon and the fact that even now here today that kind of backfilling contrary to the district court's own findings is what's going on tells us that something is seriously amiss first that they lost the union steward the district court said that the court would only look at that for notice purposes that said twenty seven forty three declined to rely on that second the statements by or the statement by whalen thomas about employees not discussing the union with new hires the district court specifically declined to rely on that and specifically found that that was a misunderstanding that's a twenty six seventy and twenty six eighty three third a broad assertion multiple people said they would quit and aren't coming back no one person said that if we had a whole bunch of people saying that's it i'm gone union's terrible we're never coming back no matter what we would have a really different case here today the record does not support that next the obey or text message at sixteen forty three to forty five the district court specifically declines to rely on it that's it twenty six eighty three and in fact obey or knew nothing marcus what was what was the economic loss that you were paying higher wages in those particular particular units correct well not just that they were higher that they were so much i understand that what they were high but they were higher because what you had done was to put in place an incentive program which rewarded employees for their actual performance levels that they were yeah we were out we're paying these people look it's completely out of line they're making sixty thousand dollars a year and these other people might get what they got the sixty thousand dollars a year because you of your instead of program was not correct and they didn't windfall the best example of this is a twenty nine forty seven and my friend on the other side said the employees were used to making that money they were used to making it for a limited two year period in there and then the question here is whether a correct but none of that goes to the question of whether well this is a situation that a final board order could not remedy that of order from the board would be meaningless and it wouldn't