In the

United States Court of Appeals

for the Seventh Circuit

No. 00-1860

PHILIP E. BLOEDORN, Regional Director

of Region 30 of the National Labor Relations

Board, for and on behalf of the

NATIONAL LABOR RELATIONS BOARD,

Plaintiff-Appellant,

v.

FRANCISCO FOODS, INC.,

d/b/a PIGGLY WIGGLY,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 99 C 1402--Rudolph T. Randa, Judge.

ARGUED SEPTEMBER 21, 2000--DECIDED DECEMBER 28, 2001

 Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges. 

 ROVNER, Circuit Judge. Until 1999, the employees of the

Piggly Wiggly grocery store in Ripon, Wisconsin, were represented

by the United Food and Commercial Workers Union, Local No. 73A,

AFL-CIO-CLC (the "Union"). When the owner of the store announced

his intent to sell the franchise to Francisco Foods, Inc.

("FFI"), FFI invited store employees to submit applications to

work for the new owner. Fewer than half of the employees that

joined the FFI workforce had previously worked for the prior

owner, however, so that when the store reopened under FFI’s

ownership, a majority of the store’s employees were not Union

members and consequently FFI was not obliged to recognize and

bargain with the Union.

 The Regional Director (the "Director") of the National Labor

Relations Board (the "NLRB" or the "Board") filed an

administrative complaint charging that FFI had deliberately

refused to hire a number of people who had worked for the store’s

previous owner in order to avoid having to bargain with the

Union, in violation of section 8(a)(1) and (3) of the National

Labor Relations Act (the "Act"), 29 U.S.C. sec. 158(a)(1), (3).

The Director also asserted that FFI’s refusal to recognize and

bargain with the Union, and its failure to adopt and enforce the

terms of the collective bargaining agreement that the Union had

entered into with FFI’s predecessor, constituted unfair labor

practices that were contrary to section 8(a)(1) and (5) of the

Act, 29 U.S.C. sec. 158(a) (1), (5). While the complaint was

pending before an administrative law judge, the Director filed

this action seeking interim injunctive relief pursuant to section

10(j) of the Act, 29 U.S.C. sec. 160(j). Specifically, the
Director asked the district court to enter an order requiring FFI

to offer employment to the employees of the prior owner that FFI

had refused to hire, to recognize and bargain with the Union, and

to restore employee working conditions (including wages and

hours) to their state prior to FFI’s takeover of the store, until

such time as the Director’s complaint was finally resolved by the

Board. The district court denied the Director’s request,

concluding that he was unlikely to prevail on the merits of the

complaint and that he had not established the prospect of

irreparable harm to the Union. R. 23.

 The Director appeals the denial of his request for interim

relief. Because we conclude that the Director has a "better than

negligible" chance of prevailing on the merits of his complaint,

that the unfair labor practices charged in the complaint do pose

a threat of irreparable harm to the Union which outweighs the

harm that interim relief poses to FFI, and that interim

injunctive relief is in the public interest, we reverse the

district court’s judgment.

I.

 We have derived the factual summary that follows from the

record of the evidentiary hearing conducted before the Board’s

administrative law judge ("ALJ") on the Director’s complaint. The

Director submitted the record of that hearing to the district

court in support of his petition for interim relief.

 For more than twenty-five years prior to 1999, the Union

represented all non-supervisory employees of the Piggly Wiggly

store in Ripon. Ripon Supermarkets, Inc. ("RSI") owned the Piggly

Wiggly franchise in the years immediately preceding the events

underlying this action; Ron and Carol Bayer were the principals

of RSI. The final collective bargaining agreement entered into by

RSI and the Union covered the period beginning on February 1,

1996 and ending on January 31, 1999. General Counsel Exhibit ("GC

Ex.") 2. However, in the final days of January 1999, RSI and the

Union agreed to extend the term of this agreement until such time

as they entered into a new contract. GC Ex. 3. The 1996 agreement

contained no successor clause requiring anyone who purchased the

store from RSI to recognize the Union. 

 Pam Francisco had worked at the Ripon Piggly Wiggly for

twenty-five years and had served as the store manager for the

last six and one-half years prior to 1999. When the Bayers

decided to sell the store, Francisco and her husband Tom formed

FFI for the purpose of buying the store. (Francisco is the

president and secretary of FFI.) FFI and RSI entered into a

purchase and sale agreement on March 10, 1999. GC Ex. 11. Because

the final collective bargaining agreement between RSI and the

Union contained no successor clause, FFI would not be required to

recognize the Union if a majority of its employees were not

already members of the bargaining unit--i.e., if they had not

worked for RSI./1

 On March 12, 1999, Ron Bayer informed Grant Withers, the

Union’s business representative, that he was selling the Piggly

Wiggly to Francisco. Bayer asked Withers to keep this information

under his hat for a few days until Bayer had a chance to announce

the sale to store employees. Three days later, on March 15,
Withers telephoned Francisco to follow up on Bayer’s disclosure.

According to Withers’ notes of the conversation, the following

exchange took place:

Withers: Have you and Ron informed the employees yet?

Francisco: Yes, we did.

Withers: Well Pam, the reason I’m calling is I’d like to know if

you would be available for a meeting tomorrow[.]

Francisco: No, I have two appointments already.

Withers: Well Pam, we need to know what your intentions are as far

as recognizing the Union[.]

Francisco: At this time, I don’t think we[’]re going to.

Withers: Really? Are you sure?

Francisco: I may let my new employees decide what to do.

Withers: By your statement, "my new employees," am I to assume you

won’t be keeping the current employees?

Francisco: No, I’m not going to keep the bargaining unit.

Withers: Is this for sure or would you like a few days to think

about it?

Francisco: No, at this point, I’m sure.

Withers: Well that’s unfortunate. I’m sure Ron could tell you, and

you probably recall, how much the turmoil cost Ron in business

when he bought the store [--] sales that he never recovered. That

is unfortunate[.] I’m sure you understand that we’ll have to take

whatever action we need to, to protect these jobs.

Francisco: Sigh.

Withers: Okay, Bye.

GC Ex. 4. In her own testimony, Francisco acknowledged telling

Withers that "I was taking a new direction and there would be a

lot of new faces," but she denied saying anything about whether

she would retain RSI’s employees, recognize the Union, or assume

the collective bargaining agreement. Tr. 72; see also Tr. 633-35.

 According to assistant store manager Michael Ritchay,

Francisco likewise told him on March 15 that "she was going

around to the people that she wanted to hire and . . . it

wouldn’t be a union . . . ." Tr. 432-33. Joann Schrader, manager

of the bakery/deli section of the store, recalled Francisco

remarking that same day, at a meeting of store managers and other

employees, "that not everyone would be hired back." Tr. 340.

 In a letter dated March 16, 1999, one day after and

apparently in reference to Withers’ conversation with Francisco,

FFI’s attorney, James Macy, wrote the following letter to

Withers:
This letter is to notify you that we represent Francisco Foods,

Inc., and are assisting them in regards to the transition and

purchase of the Piggly Wiggly store in Ripon, Wisconsin. As noted

by Ms. Francisco, they anticipate considerable changes in regards

to the operation of this store upon the completion of this asset

purchase. In that regard, the Company does not anticipate

assuming the collective bargaining agreement.

While disappointed in your initial comments to the Company, we do

anticipate a positive and professional transition. We

respectfully request that if you have any further questions in

regards to this transition, you direct them to our attention.

GC Ex. 5.

 Also on March 16, Bayer and Francisco each posted notices at

the store formally advising employees of the forthcoming sale.

Bayer’s notice read as follows:

This posting is to advise you that effective May 15, 1999, the

entire assets of [the] Piggly Wiggly store operated by Ripon

Supermarket Inc. at 111 E. Fond du Lac St., Ripon, Wisconsin

54971 will be sold to another company.

Soon you will receive a letter from the Company describing any

severance benefits you may have available under the collectively

bargained labor agreement.

I would like to take this opportunity to thank you all for your

past efforts on behalf of the Company and, also wish each and

every one the best for you in the future.

If you have any questions please be sure to ask. We would like

this transition to be as smooth as possible.

GC Ex. 13. As Bayer’s reference to severance benefits suggests,

all RSI employees were to be terminated as of May 15. However,

Francisco’s notice invited the employees of RSI to apply for

employment with FFI:

Tom and I are in the process of negotiating the purchase of

Piggly Wiggly. We are both very excited about the prospect of

owning the store.

We anticipate that there will be a number of restructuring and

reorganization changes made here at the store.

Everyone who is presently employed now should please consider

reapplying for employment at our store. By law, anyone

interesting in working for Francisco Foods Inc. must fill out a

new application.

GC Ex. 12.

 In the weeks following the announcement of the forthcoming

sale, Francisco had a number of conversations with store

personnel regarding her intent vis a vis the Union. According to

these individuals, although Francisco allowed for the possibility

that the new employees might opt for Union representation, she
did not plan to recognize the bargaining unit at the outset of

her tenure as store owner: 

 1. As we noted above, Francisco on March 15 had

purportedly told Ritchay--who was offered but did not accept a

job with FFI--that "it wouldn’t be a union . . . ." Tr. 432-33.

According to Ritchay, a couple of days later, Francisco qualified

that remark by saying that "there wouldn’t be a union, but if the

employees wanted a union--the new employees wanted a union they

could vote on it," Tr. 433. Ritchay testified that he

subsequently told Francisco "if [fellow RSI employee] Bob

Schumacher is going to be out there picketing that I wouldn’t be

able to cross the line." Tr. 434. His conversation with Francisco

"kind of went back and forth," Ritchay testified, and then "I

kind of mentioned that you know Bob really wants the Union in

here. She says that’s not going to happen." Tr. 435.

 2. According to RSI utility employee Adam Simonis-- whom

FFI hired--Francisco said to him between one and two weeks after

the sale was announced that "she was going to let the employees

decide whether or not they wanted" a union rather than

recognizing the Union "right away." Tr. 497.

 3. Bakery/deli manager Schrader--whom FFI also hired--

testified that Francisco likewise told her that she did not then

intend to recognize the Union, but "[f]urther down the road if

the employees wanted the union, you know, then she would go from

there." Tr. 341.

 4. RSI employee Cari Wittchow likewise testified that when

Francisco approached her a week or two after the sale was

announced and offered her a job with FFI, Francisco mentioned

that "she didn’t want to acknowledge [the Union] at that time,"

Tr. 490, and that it would be up to FFI employees to decide

whether they wished to be represented by the Union, Tr. 492. 

 5. Evonne Everson gave a written statement to the Union

(dated April 6) stating that on or about March 24, she had asked

Francisco whether FFI would hire all of RSI’s employees.

According to Everson’s statement, Francisco "stated only 50% of

the employees [would be hired,] because she wouldn’t have the

Union. Pam Francisco stated that she couldn’t have the Union

because she couldn’t afford it." GC Ex. 29. Francisco

subsequently hired Everson just days before FFI assumed ownership

of the store. At the hearing before the ALJ, Everson identified

her written statement but claimed it was inaccurate. Tr. 279-81.

"I didn’t write this right," she said. Tr. 303./2

 Although Francisco denied making most of the remarks

attributed to her by store employees, e.g., Tr. 638, 640, 645,

646, 647-48, 649-50, 655-66, she concedes that she told staff

that she "would not recognize the union automatically and [she]

felt that it should be an employee decision." Tr. 646; see also

GC Ex. 33 at 1.

 In mid-April 1999, FFI began to run advertisements in four

local newspapers for numerous positions at the Piggly Wiggly; and

on April 21, 1999, Francisco began to interview candidates for

hire by FFI.
 Francisco made offers to many, but not all, of the RSI

employees who wished to stay on at the store. Thirty-four of

RSI’s employees sought either supervisory or non-supervisory

positions with FFI. Francisco ultimately hired three RSI

employees for supervisory roles and extended offers of employment

to another twenty RSI employees for non-supervisory positions.

 As April gave way to May, however, a number of positions

with FFI remained unfilled, and a number of RSI employees who had

applied for jobs with FFI had not yet been told whether or not

FFI planned to hire them. On May 11, 1999, just five days before

FFI took over the store, the following language began to appear

in FFI’s hiring advertisements in the local papers:

No Experience Necessary

We Will Train You!!

GC Ex. 17. On the same date, Francisco telephoned the local

police and informed them that she expected there to be as many as

200 people picketing in front of the store on May 16--the first

day of store operations under FFI ownership. GC Ex. 26. Francisco

could not recall having telephoned the police, Tr. 189-91, but

when confronted with a police log documenting the fact and

substance of the conversation, she allowed that "[i]f they say I

did," she might have placed the call. Tr. 190.

 Meanwhile, in the weeks immediately preceding FFI’s takeover

of the store, Francisco allegedly had a number of additional

conversations with RSI employees that again touched upon the

prospective status of the Union with FFI. The testimony of these

employees suggests that Francisco was making hiring decisions

with an eye to avoiding an obligation to recognize the Union.

(Again, Francisco denies the substance of these conversations.)

 1. Valerie Clark was an RSI employee who did not apply for

work with FFI. However, her daughter Carrie--also an RSI

employee--did seek employment with FFI. On May 1, 1999, Valerie

Clark asked Francisco about her daughter’s status. She testified

as follows regarding her conversation with Francisco:

Q. Okay. And how did the conversation come about or where did it

take place?

A. I approached her because I was in the store for other reasons

and I saw her in aisle five working and I approached her and I

asked her if she knew yet if Carrie would have a job when she

took over.

Q. Did Ms. Francisco give you an answer?

A. Yeah. She said she did not know yet.

Q. Did she say anything else?

A. She said she had to be very careful and get rid of fifty

percent of the workers and she would make a decision as to Carrie

probably in the next week.

Q. When she talked about fifty percent of the workers did she say

anything else that you recall?
A. She--when she said she had to get rid of fifty percent of the

workers I made some goofy comment. I think I said, "Oh God,

that’s like about everybody." And she said this was not going to

be a unioned [sic] store."

Tr. 393-94.

 2. Four days later, on May 5, Carrie Clark herself asked

Francisco about her prospects.

Well, I asked her if she knew whether or not I was going to be

rehired and she said she didn’t know. She said I wasn’t at the

top of her firing list and if I were to reapply later on down the

line that she would rehire me and she’d write me a good

recommendation. She also said that she wasn’t going to keep a lot

of the students and there was going to be a lot of new faces

because she wanted to keep the union out, but she told me that

information was not supposed to leave the office.

Tr. 362.

 3. Head cashier Tina Warriner had worked at the Piggly

Wiggly for twelve and one-half years. She testified that on or

about May 8, she asked Francisco whether FFI would hire her. As

Warriner recounted the conversation, Francisco commented that

Warriner was "good in the front end" (i.e., good with customers)

and had a strong attendance record, but "[her] downfall was the

schedule." Tr. 252. (In addition to her other duties, Warriner

prepared the initial draft of the weekly employee work schedule

for Francisco’s review and revision.) Francisco then proceeded to

inquire whether Warriner, who was a Union steward, would be

willing to work in a nonunion shop:

Well, when we were talking about if I had a job or not and she

was telling me if--you know, that I did have a lot of good

qualities out there and she would ask me how I could work for--if

I could work for a nonunion store and I told her I had to get all

my priorities in order but I probably could. 

Tr. 253. Francisco did not tell Warriner whether she would be

hired.

 4. Shortly after the sale of the store was announced,

Francisco indicated to RSI meat wrapper Joe Curtis that if he

wanted his job "back," he would have to complete an application.

Tr. 542. Curtis testified twice on consecutive days before the

ALJ. According to Curtis’s initial testimony, Francisco went on

to remark "that she could hire back 50 percent of each--in each

department [but] if she took the union back, and which would have

been--I would have been fired." Tr. 543. FFI’s lawyer asked

Curtis on cross-examination whether it might have been Paul

Maxwell, the meat manager, who made the latter remark to him

rather than Francisco. Curtis, however, was firm: "No, it was

Pam." Tr. 545. Curtis testified that at a later date, Francisco

informed him that she was able to hire him: "She said we can--now

I’m able to work . . . ." Tr. 544. Curtis, incidentally, agreed

that he was not a fan of unions. Id.

 Notwithstanding his initial confidence that it was
Francisco, and not Maxwell, who had spoken of a fifty-percent

hiring cap, Curtis was recalled to the stand by FFI on the

following day to say that he had been mistaken. Tr. 581-82.

Curtis testified that FFI’s cross-examination on this point had

started him wondering, and that after extensive reflection, he

had decided that it was actually Maxwell who had mentioned the

fifty-percent quota to him. Tr. 585. Once he came to this

realization, Curtis explained, he had telephoned FFI’s attorney

at home to alert him to the mistake. Tr. 587-88. When asked on

cross-examination how he had obtained the attorney’s home

telephone number, Curtis said that he had looked it up in the

Ripon telephone directory. Id. It turned out, however, that FFI’s

attorney, James Macy, lived in Oshkosh, Tr. 589, and when Curtis

was handed a copy of the local telephone directory and asked to

locate Macy’s number, he spent fifteen minutes trying to do so to

no avail. Tr. 594-96. When asked to spell Macy’s name, Curtis

ventured a guess that was incorrect: M-A-S-A-S-E-Y. Tr. 593.

Curtis eventually conceded that someone may have given him Macy’s

telephone number. Tr. 596./3

 5. Night stocker Robert Schumacher was a longtime RSI

employee to whom Francisco had extended a job offer. As FFI’s

takeover of the store approached, however, Schumacher grew

concerned and frustrated about the fate of other RSI employees to

whom Francisco had not yet extended offers. In early May,

Schumacher summoned Francisco to the produce room of the store

and, in front of RSI employee Pat Ritchay, confronted her with a

series of questions about the impending takeover. According to

Schumacher, when he asked Francisco why FFI did not simply hire

all of RSI’s employees, she told him that "she’d hire us all back

if we would vote out the union." Tr. 412.

 6. On May 1, Francisco interviewed Jamie Harttert, a

college student, for a position with FFI. Harttert was not an

employee of RSI. Harttert told Francisco that she viewed

employment with FFI as "mainly a summer job" and that once her

studies resumed in the autumn, she would only be able to work

every other weekend. Tr. 481. Harttert testified that in

response, Francisco "explained to me that under the union that

people would have to work a certain amount of hours per week and

that I wouldn’t be able to do every other weekend under the

union. But since she was changing it to a nonunion, that she, you

know I could work every other weekend." Tr. 481. Francisco hired

Harttert. According to Harttert, at a meeting for new employees

that took place at least a week before FFI took over the store,

Francisco warned them to expect picketing when they started work.

Tr. 482-83.

 As of May 12, 1999, four days before the change in store

ownership took effect, seven RSI employees who had applied for

jobs with FFI still had not been told whether they would be

hired./4 Two of these people had long affiliations with the

store: Janet Simmons had worked at the Piggly Wiggly for eleven

years,/5 while Tina Warriner had worked there for twelve and onehalf years. The remaining five were employees who had worked at

the store for relatively short periods of time prior to the sale.

 At approximately 4:00 p.m. on that day, Bob Schumacher led a

delegation of eight RSI employees to Francisco’s office to ask

for the return of their job applications. Two of these
individuals, Schumacher and Penny Pipping--along with Pipping’s

husband Alan, who was not present--had received offers of

employment from FFI. The other six individuals-- Tina Warriner,

Robert Birkrem, Carrie Clark, Jamie Kotlowski, Ryan Sasada, and

Janet Simmons--had not yet heard whether they would be offered a

job with FFI. "[I]t [was] a situation where no one really knew

whether they were hired or not or what kind of games [Francisco]

was playing because everybody was being told one by one,"

Schumacher testified. Tr. 414-15. Anticipating that Francisco

would not recognize the Union, Schumacher and Penny Pipping had

decided to decline the offers they had received. At the same

time, a rumor apparently had been circulating among RSI employees

that none of them would be eligible for unemployment if they

still had a job application pending with FFI. Wishing to preserve

that eligibility, the eight members of the group asked Francisco

to return their applications. Penny Pipping asked for her

husband’s application back as well. Francisco agreed to return

all of the applications save that of Alan Pipping, who was not

present, and went home to retrieve them. After unsuccessfully

trying to locate the applications, Francisco returned to the

store and promised the employees that she would bring them with

her on the following day.

 Separately on that same day, high school student and RSI

employee Tara Manthei also asked Francisco to return her

application. Manthei testified that she had asked Francisco about

her prospects a week earlier, and that Francisco had told her she

was "not on the top of the firing list." Tr. 532. However,

Manthei’s mother, Susan, had learned from someone who had seen a

draft FFI work schedule that Manthei’s name was not on it; and

she therefore assumed that Francisco was not going to hire her

daughter. Tr. 474, 533-34. Francisco returned the application to

Manthei, who eventually discarded it./6

 The Union held a meeting on the evening of May 12. Union

officials were "flabbergasted" to learn about the withdrawals.

Tr. 38. They proceeded to admonish RSI employees that it was a

mistake for them to withdraw their job applications, because a

pending application with FFI would not, in fact, disqualify them

from receiving unemployment compensation in the event they were

not hired. Officials told the employees who had withdrawn their

applications to resubmit them.

 On the following day, May 13, Francisco arrived at the store

with the applications whose return had been requested. Penny

Piping, Carrie Clark, and Jamie Kotlowski accepted their

applications back and tore them up in front of Francisco. Alan

Pipping, Ryan Sasada, and Janet Simmons each indicated to

Francisco that she should keep his or her application. Tina

Warriner, after receiving her application, returned it to

Francisco’s desk. Neither Robert Birkrem nor Bob Schumacher ever

received his application from Francisco, and neither of them

asked Francisco again for its return. None of these employees

expressly told Francisco that they still wished to be considered

for employment with FFI. Francisco testified that she was under

the impression they were no longer interested: "Well, I assumed

they didn’t want jobs. They were pulling their applications." Tr.

641. None of these individuals subsequently received an offer of

employment from FFI.
 RSI ceased operations and closed several hours early on

Saturday, May 15, and on the following morning, the Piggly Wiggly

reopened under FFI’s management./7 As of May 16, FFI had a

complement of forty-five employees, excluding Francisco. Six of

the forty-five employees were supervisors or managers; the

remaining thirty-nine held non-supervisory positions. Of FFI’s

thirty-nine non-supervisory workers, sixteen had worked for RSI,

whereas the other twenty-three were "new" hires. The six

supervisors included three individuals who had formerly worked

for RSI. Because the former employees of RSI constituted a

minority of FFI’s non-supervisory workforce, FFI neither

recognized the Union nor assumed RSI’s obligations under the

collective bargaining agreement with the Union. The Union

immediately commenced picketing of the Piggly Wiggly.

 The fact that FFI hired most of its non-supervisory

employees from outside of the RSI labor pool give rise to

proceedings before the NLRB. On May 17, 1999, the Union filed a

charge with the Board asserting that FFI had refused to hire a

number of RSI’s employees in order to avoid an obligation to

recognize and bargain with the Union. R. 1 Ex. A. After

investigating the charge, the Director, on August 30, filed the

complaint we described at the outset of this opinion. Id. Ex. B.

An administrative law judge conducted an evidentiary hearing on

that complaint which concluded on October 1, 1999. On November

30, the Director petitioned the district court for interim

injunctive relief. R. 1. The Director’s request was submitted to

the court along with the record of the evidentiary hearing before

the ALJ.

 The district court denied the Director’s petition for two

principal reasons. First, the court concluded that the Director

had not shown that the Union faced irreparable harm in the

absence of interim injunctive relief. Although the Director

argued that the Union’s status among store employees would erode

while awaiting relief from the Board, the court characterized

this as nothing more than speculation. R. 23 at 5. As the court

viewed the record, FFI had not engaged in the kinds of unfair

practices that would convey to employees an intolerance of Union

activity or that would otherwise chill support for the Union. Id.

at 5-6. The court pointed out that Francisco had invited

applications from RSI’s employees; had actively recruited several

of those individuals, including one whom she knew to be an active

Union supporter; had ultimately hired nineteen of the thirty-four

RSI employees who sought employment with FFI; and had indicated

to a number of store employees that unionization would be up to

them. These facts revealed no propensity on the part of FFI to

engage in coercive acts in order to evade an obligation to

bargain with the Union. Id. at 6. At the same time, should the

Board ultimately find in the Director’s favor, the Union would be

reinstated as the employees’ representative, giving it the

opportunity to re-establish support among store employees. Id. at

6-7.

 Second, the court believed that the Director had no better

than a negligible chance of prevailing on the merits of his

complaint. In order to impose a duty on FFI to recognize and

bargain with the Union, the Director would have to show both that

FFI qualified as RSI’s successor and that FFI had made

discriminatory hiring decisions in order to avoid having a union-
dominated workforce. The court thought it likely that the

Director would succeed on the first of these points: FFI, like

RSI, operated a grocery store, sold similar products, and, like

RSI, marketed those products primarily to consumers. Id. at 8-9.

But the court did not think it likely that the Director would

convince the Board that FFI’s hiring decisions were

discriminatory. FFI had conducted an open hiring process and had

invited RSI’s employees to apply for jobs with FFI; Francisco had

recruited a known Union advocate along with several other RSI

employees; and FFI had extended offers to all but eleven of the

thirty-four RSI employees who had submitted applications. Id. at

11. All of the eleven RSI workers to whom FFI did not offer jobs,

the court explained, "had demonstrated legitimate performance or

employability concerns." Id. at 11. Four of them had problems in

their work histories. Id. at 11 n.17. The remaining seven were

among the ten RSI employees who had asked Francisco to return

their applications on May 12. Id. at 11-12. In doing so, those

seven employees had genuinely put their interest in employment

with FFI, and their desirability as prospective hires, into

doubt. Id. at 12. Consequently, even if the Director were able to

prove that anti-union animus played a role in Francisco’s hiring

decisions, the court was convinced that FFI would still be able

to show that it wouldn’t have hired the eleven individuals to

whom it did not extend offers for legitimate, non-discriminatory

reasons. Id. at 12-13.

 Nearly two months after the district court denied the

Director’s petition for interim relief, the ALJ who heard the

Director’s complaint issued an order which concluded, in relevant

part, that FFI had declined to hire certain RSI employees in

order to avoid having to recognize and bargain with the Union.

Francisco Foods, Inc. and United Food & Commercial Workers Union,

Local No. 73A, AFL-CIO, No. 30-CA-14738 (N.L.R.B. Div. of Judges

Mar. 31, 2000) (hereinafter, "ALJ Decision")./8 The ALJ found

that the Director’s witnesses had credibly testified to a variety

of statements by Francisco to the effect that FFI did not plan to

recognize the Union, and that she was making hiring decisions in

such a way as to keep former RSI employees in the minority of

FFI’s workforce so as to avoid a duty to recognize and bargain

with the Union. Id. at 13-14. Consistent with those statements,

the ALJ went on to find, Francisco had purposely delayed action

on the employment applications of a number of RSI workers:

 The employees of the Bayers were treated like puppets on a

string. Francisco didn’t want to recognize the union and

refrained from offering jobs to employees of the Bayers until she

was sure that less than a majority of Respondent’s employees

would be former employees of the predecessor. At the same time

employees are waiting to see if they had a job Francisco is

advertising for employees and advising prospective employees that

no experience is required.

 Based on the entire record it is crystal clear to me and I

believe would be to anyone who saw and heard the witnesses in

this case that to avoid successorship status Respondent did not

hire a number of employees.

Id. at 14 (emphasis in original).

 Against this backdrop, the ALJ did not find it fatal to the
Director’s case that ten RSI workers had asked Francisco to

return their applications on May 12. The ALJ concluded that FFI

was not going to hire seven of these individuals in any event.

One of them, Tara Manthei, had already learned (through her

mother) that she would not be hired. The return of her

application, therefore, was merely a nod to the inevitable. Id.

at 14, 16. Six other employees had still not been told whether

FFI planned to hire them, notwithstanding the fact that FFI’s

takeover of the store was just days away. "Again, puppets on a

string." Id. at 14. Although the applications of these six

employees nominally remained under consideration, the evidence

suggested to the ALJ that Francisco was not going to hire them.

On the day prior to the withdrawals, Francisco had telephoned the

Ripon police to inform them that she expected up to 200 picketers

when the store reopened under FFI ownership on May 16. Because

the Union would have no reason to picket the store if a majority

of FFI’s workforce were former RSI employees-- thus obligating

FFI to recognize the Union--the ALJ construed Francisco’s

telephone call as confirmation that Francisco had no intent to

extend offers to the six individuals who, as of the time they

withdrew their applications, had not yet been told whether or not

FFI would hire them. Id. at 15. Accordingly, the ALJ found it

appropriate to treat these six individuals, along with Manthei,

as victims of discrimination:

To hold it against Birkrem, Clark, Kotlowski, Manthei, Sasada,

Simmons, and Warriner that they withdrew their applications and

[to say that they] weren’t hired for that reason when they had no

chance to be hired in any event would be horribly unfair.

Id. at 15.

 The ALJ also emphasized that six of the ten employees who

had asked for their applications back had effectively reversed

their requests. Id. at 15. Several individuals returned their

applications to Francisco; others never received their

applications back from Francisco and did not ask her again to

return them. Id. 

 Three of the employees who asked for their applications

back, however, had ripped them up in Francisco’s presence. On the

face of things, these three employees had taken themselves out of

the running for positions with FFI. Yet, in the ALJ’s view, FFI

had "forced [these employees] into an untenable position" by

making its hiring decisions in such a way as to avoid having to

recognize the Union. Id. at 16. (The same was true of Tara

Manthei, who had asked for her application back--and kept it--

only after her mother learned that Manthei would not be hired.

Id.)

 Even if these three individuals were removed from analysis,

the ALJ pointed out, the evidence still supported the Director’s

claim that FFI had refused employment to a number of RSI

employees in order to avoid a union-dominated workforce. Had FFI

hired the other seven individuals who had asked for their

applications back, twenty-three of FFI’s thirty-nine nonsupervisory employees would have been former employees of RSI.

"In other words, a clear majority would [have been] employees of

[FFI’s] predecessor." Id. at 16.
 In terms of the kind of business that FFI conducted, the ALJ

had no doubt that the new company qualified as RSI’s successor:

The facts in this case show a "substantial continuity" between

the predecessor and successor employers. Respondent operates a

Piggly Wiggly franchise grocery store at the same location as the

predecessor, utilizing the same equipment and facilities;

attracts the same customers; offers basically the same product

lines; employs supervisors who worked for the predecessor; and

employs employees in the same working classifications and under

the same working conditions as the predecessor.

Id. at 16. 

 In sum, the ALJ concluded that but for its discriminatory

hiring decisions, FFI would have been obliged to recognize and

bargain with the Union. He therefore ordered FFI, inter alia, to

offer jobs to the ten employees who had withdrawn their

applications and, on request, to recognize and bargain with the

Union. Id. at 17-18.

II.

 Section 10(j) of the National Labor Relations Act authorizes

a district court to enter "just and proper" injunctive relief

pending the final disposition of an unfair labor practices claim

by the Board. 29 U.S.C. sec. 160(j). We review the district

court’s decision to grant or deny interim injunctive relief for

abuse of discretion. NLRB v. Electro-Voice, Inc., 83 F.3d 1559,

1566 (7th Cir. 1996), cert. denied, 519 U.S. 1055, 117 S. Ct. 683

(1997).

 The familiar factors that courts reference in weighing the

propriety of preliminary injunctive relief in other contexts--the

lack of an adequate remedy at law, the balance of potential harms

posed by the denial or grant of interim relief, the public

interest, and the petitioner’s likelihood of success on the

merits of its complaint--apply to requests for relief pursuant to

section 10(j) as well. Kinney v. Pioneer Press, 881 F.2d 485, 490

& n.3, 493 (7th Cir. 1989); see also Electro-Voice, 83 F.3d at

1566. Thus, the Director will be entitled to interim relief when:

(1) the Director has no adequate remedy at law;

(2) the labor effort would face irreparable harm without interim

relief, and the prospect of that harm outweighs any harm posed to

the employer by the proposed injunction;

(3) "public harm" would occur in the absence of interim relief;

(4) the Director has a reasonable likelihood of prevailing on the

merits of his complaint.

Id. at 1567-68. The Director bears the burden of establishing the

first, third, and fourth of these circumstances by a

preponderance of the evidence. Id.

 The strength of the Director’s case on the merits affects

the court’s assessment of the relative harms posed by the grant

or denial of injunctive relief: the greater the Director’s
prospects of prevailing are, the less compelling need be his

showing of irreparable harm in the absence of an injunction. Id.

at 1568. But, in evaluating the likelihood of success, it is not

the district court’s responsibility, nor is it ours, to rule on

the merits of the Director’s complaint; that is the Board’s

province. The court’s inquiry is confined to the probability that

the Director will prevail. See id. at 1570.

 In making this assessment, we must keep in mind that the

district court rejected the Director’s petition for relief under

section 10(j) based solely on the written record of the evidence

presented before the ALJ. The district judge heard no testimony

himself, and consequently had no occasion to assess the

credibility of witnesses or to resolve conflicts in the evidence.

Under these circumstances, we owe the Director a favorable

construction of the evidence, much as we would if he were a

plaintiff appealing the grant of summary judgment in favor of the

defendant. See Kinney, 881 F.2d at 489; see also Electro-Voice,

83 F.3d at 1566 n.15. We will therefore credit the Director’s

factual averments so long as they are plausible in light of the

record evidence. See Electro-Voice, 83 F.3d at 1570./9

 We must also bear in mind that it is the Board, and not this

court, which is principally charged with the administration and

enforcement of the Act. See United States v. Palumbo Bros., Inc.,

145 F.3d 850, 861 (7th Cir.), cert. denied, 525 U.S. 949, 119 S.

Ct. 375, 376 (1998). If and when we are called upon to review the

Board’s final order in this case, we will owe the Board’s

judgment considerable deference. E.g., Multi-Ad Servs., Inc. v.

NLRB, 255 F.3d 363, 370-71 (7th Cir. 2001). In view of our

limited role, and given the Board’s expertise in matters of labor

relations, we must be "hospitable" to the General Counsel’s view

of the law. Miller v. California Pacific Med. Ctr., 19 F.3d 449,

460 (9th Cir. 1994) (en banc), quoting Danielson v. Joint Bd. of

Coat, Suit & Allied Garment Workers’ Union, 494 F.2d 1230, 1245

(2d Cir. 1974) (Friendly, J.); see also Pattern Makers’ League of

N.A., AFL-CIO v. NLRB, 473 U.S. 95, 114, 105 S. Ct. 3064, 3075

(1985); Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S. Ct.

1842, 1849 (1979); NLRB v. Manitowoc Eng’g Co., 909 F.2d 963, 971

n.10 (7th Cir. 1990), cert. denied sub nom. Clipper City Lodge

No. 516 v. NLRB, 498 U.S. 1083, 111 S. Ct. 954 (1991).

 Finally, although we do not sit in review of the ALJ’s

decision--which the parties have cross-appealed to the Board--his

opinion is nonetheless relevant to the propriety of section 10(j)

relief. Assessing the Director’s likelihood of success calls for

a predictive judgment about what the Board is likely to do with

the case. The ALJ is the Board’s first-level decisionmaker.

Having presided over the merits hearing, the ALJ’s factual and

legal determinations supply a useful benchmark against which the

Director’s prospects of success may be weighed. See, e.g.,

Hoffman v. Inn Credible Caterers, Ltd., 247 F.3d 360, 367 (2d

Cir. 2001); Silverman v. J.R.L. Food Corp., 196 F.3d 334, 337-38

(2d Cir. 1999) (per curiam); Rivera-Vega v. ConAgra, Inc., 70

F.3d 153, 161 (1st Cir. 1995); Seeler v. Trading Port, Inc., 517

F.2d 33, 37 n.7 & 40 n.11 (2d Cir. 1975).

 With these principles in mind, we turn to the Director’s

case, considering each of the elements set forth above. We begin

with the Director’s likelihood of prevailing on the merits of his
complaint against FFI.

A. Likelihood of success

 One of the prospects that confronted FFI when it decided to

acquire the Ripon Piggly Wiggly franchise from RSI was the

potential obligation, as RSI’s successor, to bargain with the

Union. The Supreme Court has recognized that when "[a] new

employer makes a conscious decision to maintain generally the

same business and to hire a majority of its employees from [its]

predecessor," it must bargain with the union that represented the

predecessor’s employees. Fall River Dyeing & Finishing Corp. v.

NLRB, 482 U.S. 27, 41, 107 S. Ct. 2225, 2234 (1987); see also

NLRB v. Burns Int’l Security Servs., Inc., 406 U.S. 272, 280-81,

92 S. Ct. 1571, 1578-79 (1972). When FFI opened for business,

only a minority of its non-supervisory employees (sixteen of

thirty-nine) formerly had worked for RSI./10 Nominally, then, it

had no obligation to bargain with the Union. It is the Director’s

theory, however, that FFI made its hiring decisions in a

calculated manner aimed at ensuring that the former employees of

RSI did not constitute a majority of the FFI workforce. Of

course, FFI bore no obligation to hire any of RSI’s employees.

Fall River, 482 U.S. at 40, 107 S. Ct. at 2234, citing Burns, 406

U.S. at 280 & n.5, 92 S. Ct. at 1578 & n.5. Yet, FFI was not free

to make discriminatory hiring decisions with the purpose of

avoiding a duty to bargain with the representative of RSI’s

workforce. Ibid.

Of course, it is an unfair labor practice for an employer to

discriminate in hiring or retention of employees on the basis of

union membership or activity under sec. 8(a)(3) of the National

Labor Relations Act, 29 U.S.C. sec. 158(a)(3). Thus, a new owner

could not refuse to hire the employees of his predecessor solely

because they were union members or to avoid having to recognize

the union.

Howard Johnson Co. v. Detroit Local Join Executive Bd., AFL-CIO,

417 U.S. 249, 262 n.8, 94 S. Ct. 2236, 2243 n.8 (1974). That is

precisely what the Director believes that FFI did in this case;

and in doing so, he asserts, FFI violated not only section

8(a)(3) but also section 8(a)(5) of the Act. Section 8(a)(3) bars

an employer from making discriminatory employment decisions in

order "to encourage or discourage membership in any labor

organization . . . ." 29 U.S.C. sec. 158(a)(3). Section 8(a)(5)

provides that an employer commits an unfair labor practice when

he "refuse[s] to bargain collectively with the representatives of

his employees . . . ." 29 U.S.C. sec. 158(a)(5).

 To prevail on the merits of his complaint, the Director will

have to prove two key propositions. Preliminarily, he will have

to establish that FFI is RSI’s successor--that is, that FFI has

made "a conscious decision to maintain generally the same

business" as RSI. Fall River, 482 U.S. at 41, 107 S. Ct. at 2234.

Second, because only a minority of FFI’s employees formerly

worked for RSI, the Director will have to prove that FFI refused

to make job offers to a number of RSI employees in order to keep

former RSI employees in the minority and thus avoid the duty to

bargain with the Union. See id. at 40, 107 S. Ct. at 2234. For

purposes of the request for interim injunctive relief, the

Director must demonstrate that his chances of proving these
points are "better than negligible." Electro-Voice, 83 F.3d at

1568.

1.

 FFI contends for a variety of reasons that there is no

substantial continuity of enterprise between RSI and FFI. First,

FFI’s organizational structure differs from RSI’s in a number of

respects: department heads have been given more supervisory

authority, including the right to hire, discipline, and terminate

employees (Tr. 83, 617); positions have been created for a

customer service manager, a maintenance manager, and a

bookkeeper, none of which existed under RSI’s ownership (Tr. 167,

629-30); new job descriptions have been written (Tr. 627-28); and

employees have been cross-trained so that they can handle a

variety of assignments (Tr. 167, 629). Second, FFI has stopped

using some of RSI’s vendors and has begun using others that RSI

had not used. Tr. 631-32. Third and finally, FFI has purchased

new equipment (including checkout equipment and thermal printers)

and changed its way of doing business to the extent that it no

longer maintains handwritten customer accounts. Tr. 630-31. The

record also reveals certain other changes: the store’s floral

department has been eliminated (Tr. 631); its offering of bakery

goods has expanded (Tr. 618-19); and in general Francisco is

attempting to update the store (Tr. 618).

 These changes notwithstanding, we think it likely that the

Board will find there to be a substantial continuity between RSI

and FFI. The continuity assessment takes into account several

factors, including "whether the business of both employers is

essentially the same; whether the employees of the new company

are doing the same jobs in the same working conditions under the

same supervisors; and whether the new entity has the same

production process, produces the same products, and basically has

the same body of customers." Fall River, 482 U.S. at 43, 107 S.

Ct. at 2236. These factors tilt rather strongly in favor of a

finding of substantial continuity. FFI operates the same Piggly

Wiggly grocery store that RSI did. There was virtually no hiatus

between RSI’s departure as the owner and FFI’s assumption of

control. Cf. id. at 45, 107 S. Ct. at 2237. With the exception of

the new positions that FFI has created, FFI employees appear to

be performing largely the same tasks, under comparable

conditions, and under a number of the same supervisors, as RSI

employees did; they are simply doing it under new ownership.

Obviously the basic nature of the products that the store sells

has not changed--notwithstanding the changes in FFI’s vendors--

nor has the store’s customer base. Given these material

similarities between the two enterprises, it is highly likely

that the Director will succeed in providing that FFI is RSI’s

successor. See R. 23 at 8-9.

2.

 The critical question, then, is whether the hiring decisions

that FFI made with respect to RSI workers were motivated by a

desire to avoid having to bargain with the Union. See R. 23 at 9.

An employer’s motive is a factual matter which, like any other

fact, may be proven by direct or circumstantial evidence. U.S.

Marine Corp. v. NLRB, 944 F.2d 1305, 1315 (7th Cir. 1991) (en

banc), cert. denied, 503 U.S. 936, 112 S. Ct. 1474 (1992). The
Director may establish that FFI acted with an unlawful motive by

presenting substantial evidence that the company harbored an

anti-union animus; that it lacked convincing reasons not to hire

RSI’s employees; that it made inconsistent hiring decisions or

engaged in other conduct evincing a discriminatory motive; and/or

that FFI staffed its store in such a way as to preclude former

RSI employees from forming a majority of the FFI workforce. See

id. at 1316-19. If the Director succeeds in establishing that

FFI’s hiring decisions were motivated by an anti-union animus,

the burden shifts to FFI to prove that irrespective of that

animus, it would have turned away the RSI employees that it

refused to hire for legitimate reasons. Electro-Voice, 83 F.3d at

1568. The district court found that the Director’s chances of

prevailing on this aspect of its case were no more than

negligible. R. 23 at 10-13. Having reviewed the record, however,

we conclude that the Director’s prospects are much better than

that.

 To begin with, reading the record favorably to the Director,

FFI signaled repeatedly during the two-month period between the

announcement and the completion of the sale that it did not plan

to bargain with the Union when it assumed ownership of the store.

According to Withers, when he and Francisco spoke on March 15,

Francisco told him that FFI did not intend to recognize the

Union, although she might "let [her] new employees decide what to

do." GC Ex. 4. When Withers asked Francisco whether the reference

to her "new employees" meant that she did not plan to retain the

employees of RSI, Francisco confirmed that she was "not going to

keep the bargaining unit." Id. That same day, Francisco allegedly

told another employee, assistant store manager Michael Ritchay,

that "it wouldn’t be a union"--a remark that Francisco later

qualified, according to Ritchay, by saying that the new employees

could vote for union representation if that was what they wanted.

Tr. 432-33. RSI employees Joann Schrader and Adam Simonis

testified that Francisco likewise remarked to them she did not

plan to recognize the Union at the outset, but that FFI employees

could always vote in favor of union representation. Tr. 340, 497.

Indeed, Francisco herself acknowledges having told store

employees that she would not recognize the Union automatically

but instead would leave the decision up to her employees. Tr.

646. Even FFI’s attorney candidly wrote to Withers on March 16

stating that "the Company does not anticipate assuming the

collective bargaining agreement." GC Ex. 5; see also GC Ex. 33 at

1. At least one week before the store changed hands, Francisco

allegedly told Jamie Harttert and other newly hired individuals

to expect picketing when they began work. Tr. 482-83. And on May

11, Francisco telephoned local police to inform them that she

expected picketing in front of the store when FFI assumed

ownership on May 16. GC Ex. 26. All of this suggests that FFI

never intended to have a workforce dominated by the unionaffiliated employees of RSI. Even Francisco’s allowance that she

might let her employees decide about union representation is

telling, for if a majority of FFI’s hires had been RSI employees,

the company would have had no choice but to recognize and bargain

with the Union. See Eldorado, Inc., 335 NLRB No. 76, 2001 WL

1083271, at *6 n.4 (Aug. 27, 2001); Bay Area Mack, 293 NLRB 125,

125 & n.5 (1989).

 In addition to these signals, of course, there are other

remarks attributed to Francisco indicating that she was
determined to keep former RSI employees in the minority in the

FFI workforce. According to the written statement of RSI employee

Evonne Everson, Francisco told her that she planned to hire only

fifty percent of RSI’s employees, "because she wouldn’t have the

Union." GC Ex. 29. When Valerie Clark inquired about her

daughter’s prospects for employment with FFI, Francisco allegedly

told her "she had to be very careful and get rid of fifty percent

of the workers . . . ," Tr. 393-94, because "this was not going

to be a unioned store." Tr. 394. Carrie Clark herself later spoke

with Francisco and purportedly was told that "there was going to

be a lot of new faces because she wanted to keep the union out."

Tr. 362. When RSI cashier and Union steward Tina Warriner

inquired about the chances of FFI hiring her, Francisco,

according to Warriner, complimented her on her attendance and her

positive interaction with store customers, but asked her whether

she was willing to work "for a nonunion store." Tr. 253.

Francisco told meat wrapper Joe Curtis, according to Curtis’s

initial testimony, that she was able to take back fifty percent

of the employees from each department, but that if she "took the

union back," he would be fired. Tr. 543. And when stocker Robert

Schumacher asked Francisco why she didn’t simply hire all of

RSI’s employees, Francisco, according to Schumacher, replied that

she would be willing to do so "if we would vote out the union."

Tr. 412. If one credits this testimony (as the ALJ ultimately

did), one can readily infer that Francisco conducted the hiring

process with the paramount goal of keeping the percentage of

former RSI employees below the fifty percent mark, so that FFI

would not be obligated to deal with the Union. And if one credits

the testimony regarding Francisco’s remarks about the picketing

she expected when the store reopened under FFI ownership, one can

reasonably infer that Francisco fully intended to meet that goal.

 There is, in short, ample evidence that FFI’s hiring

decisions were animated by an intent to avoid a duty to recognize

and bargain with the Union. The remarks that the Director relies

upon amount to direct, rather than circumstantial evidence of an

anti-union animus, see generally Venters v. City of Delphi, 123

F.3d 956, 972-73 (7th Cir. 1997), and in contrast to the stray

remarks we often see in employment cases, e.g., Schaffner v.

Glencoe Park Dist., 256 F.3d 616, 623 (7th Cir. 2001),

Francisco’s alleged statements reflect the thoughts of a

decisionmaker regarding the very employment decisions that the

Director has challenged. If credited, this evidence would raise a

presumption that FFI used the hiring process to stack the deck

against the Union and to avoid any obligation to bargain with it.

 The district court acknowledged this evidence, R. 23 at 10,

but emphasized other facts which, in the court’s view, were

inconsistent with the notion that FFI was discriminating against

union members. Among other things, the court noted that all RSI

employees were notified of change of ownership and encouraged to

apply for employment with FFI; the hiring process in fact was

open to all RSI employees; Francisco actively recruited several

RSI employees, including one who was known to be a Union

supporter; only eleven of the thirty-four RSI employees

(including supervisors) who sought employment with FFI did not

receive job offers; and it was undisputed that four of those

eleven employees were not hired for legitimate, performancerelated reasons. See R. 23 at 11 & n.17, 13 & n.21.
 Certainly those circumstances are consistent with a hiring

process untainted by discrimination, but by no means do they

foreclose the possibility that FFI was choosing its employees so

as to obviate the need to bargain with the Union when it took

over the store. It was entirely possible for FFI to encourage and

accept job applications from RSI workers, and indeed to hire a

substantial number of RSI employees, and still avoid having to

recognize the Union, so long as former RSI employees comprised

less than half of its workforce. Proceeding in that fashion was

arguably the smarter course if, indeed, FFI’s goal was to

displace the Union. Refusing to hire anyone at RSI would have

been an obvious sign of discrimination and would have deprived

FFI of employees with valuable experience. By instead following a

more selective path, FFI might appear to be conducting the hiring

process in a non-discriminatory manner, yet still achieve what

the Director believes was its illicit goal. See ALJ Decision at

15.

 In fact, the testimony of the Director’s witnesses is

entirely consistent with the latter scenario. Although Francisco

invited RSI workers to apply for employment with FFI, both she

and FFI’s counsel indicated early on that FFI did not anticipate

automatic recognition of the Union--an announcement which

implicitly, but unmistakably, suggests that FFI expected most of

its employees to be new, i.e., not from RSI’s unionized

workforce. Indeed, if the testimony and notes of Union official

Grant Withers are believed, Francisco told Withers expressly that

she would not be retaining the employees of RSI. Again crediting

the Director’s witnesses, Francisco then embarked on a careful

course of picking and choosing among RSI’s employees, all the

while keeping in the forefront of her mind that RSI employees had

to remain in the minority of FFI’s workforce or FFI would have to

bargain with the Union--a criterion that she mentioned to several

RSI employees. Francisco’s fidelity to the fifty-percent cap on

RSI employees is arguably borne out by the fact that as FFI’s

takeover of the store approached in May, FFI still had not told a

number of applicants from RSI, including two longtime store

employees, whether they would be hired, even as FFI was placing

the "No Experience Necessary" ads in the local papers in an

effort to fill its remaining positions. When RSI head cashier

Tina Warriner asked Francisco, one week before FFI assumed

ownership of the store, whether she would have a job with FFI,

Francisco was largely complimentary of her skills but was curious

about whether Warriner would be willing to work "for a nonunion

store." Tr. 253. One may reasonably infer from this evidence that

Francisco was sitting on the applications of a number of RSI

applicants, rather than rejecting them outright, so as to

maintain the appearance of a non-discriminatory hiring process

while ensuring, in the end, that less than fifty percent of FFI’s

hires were RSI workers./11

 An important wrinkle in the Director’s case is the fact

Francisco did make offers to twenty RSI employees for nonsupervisory positions with FFI./12 When FFI assumed ownership of

the store, it did so with a complement of thirtynine nonsupervisory employees. Had twenty of those employees been Union

members, FFI would have been obliged to recognize the Union. As

FFI sees things, then, the fact that FFI extended offers to

twenty of RSI’s non-supervisory employees is wholly inconsistent

with the notion that the new company was attempting to dodge a
duty to bargain with the Union. The Director, on the other hand,

suggests that Francisco likely was staggering her hiring

decisions, keeping careful track of how many RSI employees

accepted employment with FFI, so as to avoid the possibility of

having a union-dominated workforce. We must point out, however,

that the record does not fully disclose the chronology of the

offers that Francisco made to RSI employees./13

 Like the other facts that the district court highlighted,

the fact that Francisco extended offers to twenty RSI workers for

non-supervisory posts with FFI certainly is consistent with a

hiring process untainted by any unlawful motive; but again we

believe that the record leaves ample room for a contrary

conclusion. There is, for example, evidence that Francisco was

postponing action on the applications of some RSI workers,

including two longtime employees of RSI whose credentials would

have been well known to Francisco. Francisco’s conversation with

one of those two employees, Tina Warriner, suggests that

Francisco was as concerned about her ability to work "for a

nonunion store" as she was about Warriner’s qualifications, Tr.

253, and that she may have been delaying action on the

application for that reason. Similarly, when Francisco first

spoke with meat wrapper Joe Curtis about his likelihood of being

hired, she indicated that she would "fire" him if she were

obligated to recognize the Union. Tr. 543. In a later

conversation, however, Francisco told Curtis that "now" she could

hire him. Tr. 544. That remark can be construed as evidence that

Francisco was carefully timing her employment decisions, as the

Director suggests. Francisco’s conversation with Carrie Clark

supports a similar inference. Francisco purportedly told Clark, a

student worker, that "she wasn’t going to keep a lot of the

students and there was going to be a lot of new faces because she

wanted to keep the union out," Tr. 362; but she also told Clark

that if "[she] were to reapply later on down the line that

[Francisco] would rehire [her]," id. Moreover, although the store

opened on May 16 with a complement of thirty-nine non-supervisory

workers, nothing in the record suggests that this number was ever

written in stone. FFI, obviously, could hire as many employees as

it wished. Indeed, for more than two months after it assumed

ownership of the store, FFI continued to advertise for additional

employees. See GC Ex. 17. Consequently, even if all twenty of the

individuals who received job offers from Francisco had accepted

them, it was not a foregone conclusion that they would have

constituted more than fifty percent of FFI’s employees./14

Francisco’s many alleged references to the need to hire less than

fifty percent union-affiliated workers suggest that she might

have avoided that eventuality by hiring additional employees not

affiliated with RSI. And Francisco’s anticipation--announced to

both Harttert (and other new hires) as well as the Ripon police--

that there likely would be large-scale picketing when the store

opened under FFI management on May 16, suggests that she never

made room for the possibility of a union-dominated workforce.

 The fact that seven of the RSI applicants who had not yet

received offers asked Francisco to return their job applications

on May 12 presents a second wrinkle in the Director’s case. Had

one or more of these individuals received and accepted offers

(along with, or in addition to the three other RSI workers who

had already received offers but who likewise asked for their

applications back), Union members might have constituted a
majority of FFI’s workforce. The district court was of the belief

that the withdrawals were important for two reasons. First, the

withdrawals deprived FFI of the opportunity to actually make an

employment decision with respect to the seven individuals who had

not yet received offers. R. 23 at 11-12. This in turn rendered

any assessment as to the company’s intent vis a vis these

individuals speculative. Id. at 11. It was unlikely, the district

court added, that these individuals could show their withdrawals

were precipitated by Francisco’s allegedly discriminatory intent,

because "none state that they were aware of any anti-union

animus." Id. at 12. Second, the withdrawals in and of themselves

constituted a legitimate, non-discriminatory reason for FFI not

to hire these applicants and thus rebutted any inference of

discrimination that might arise from other evidence. Id. In

short, "[i]t was the employees’ own action which legitimately put

their interest and desirability in doubt." Id.

 Although the withdrawals do complicate the Director’s case,

they do not impose an obstacle so great as to render his chances

of prevailing on the merits negligible. The district court’s

assessment that FFI was "deprived" of the opportunity to make a

decision with respect to these candidates not only overlooks the

fact that several of the employees returned their applications to

Francisco (in effect rescinding the withdrawals) but, more

importantly, assumes that FFI had not already made its decision

with respect to these employees. Perhaps FFI did have each of

these applicants under active consideration and was willing to

hire all of them even if it meant having to bargain with the

Union. Yet, as we have already emphasized, there is a wealth of

evidence permitting a contrary inference: (1) Francisco had told

RSI employees and the Union from the start that FFI did not

intend to recognize the Union automatically. (2) She allegedly

told several individuals that she was taking care not to hire a

staff comprised of more than fifty percent former RSI employees,

so that FFI would not have to recognize the Union. (3) As of May

12, the date on which the withdrawals occurred and just four days

before FFI assumed ownership of the store, FFI had still not told

these seven employees whether they would be hired, even though

two of them had worked at RSI for more than a decade. (4) On May

11, five days before FFI assumed ownership and one day prior to

the withdrawals, FFI began to include the "No Experience

Necessary--We Will Train You!" language in its newspaper

advertisements. That language reasonably suggests that FFI was

actively soliciting applications from outside of the RSI labor

pool, even as the applications of seven RSI employees nominally

were still under consideration. (5) Finally, before the

withdrawals occurred on May 12, Francisco allegedly had already

told new hires (at least one week before the takeover) and the

local police (on May 11) that she expected picketing in front of

the store on May 16. Arguably, Francisco would not have expected

picketing, and would not have alerted the police to that

possibility, unless she were confident that a majority of FFI’s

workforce would not be Union members and that she would therefore

have no obligation to recognize the Union. All of this evidence,

if credited, suggests that the rejection of some, if not all, of

these seven applicants was a foregone conclusion. One may further

infer from that same evidence that the employees who withdrew

their applications believed they were all but certain to be

rejected: (1) Francisco’s unwillingness to recognize the Union

was not only communicated to numerous RSI employees but was,
according to the Union business representative, openly discussed

at the very first Union meeting called to discuss FFI’s takeover

of the store. Tr. 36. (2) No action had been taken on the job

applications of these employees even as the reopening of the

store under FFI was just days away. (3) These individuals

withdrew their applications based on an erroneous belief that a

pending job application might disqualify them from receiving

unemployment benefits. It is at least a fair inference that they

would not have been concerned about unemployment compensation

unless they expected Francisco not to hire them. That is, in

point of fact, the precise inference that the ALJ drew from the

evidence. ALJ Decision at 8, 15.

 With respect to the three individuals who had received

offers of employment from FFI, the Director has a plausible

argument that FFI constructively discharged them. Francisco had

allegedly remarked to a number of RSI employees that FFI would be

a nonunion store long before she hired a full complement of

workers. Employees throughout the store were aware of those

remarks, as we have noted. By allegedly making plain her

discriminatory intent, Francisco put the Union members to whom

she extended offers in the untenable position of forgoing

employment or foregoing their right to representation by the

Union. The Board, with our endorsement, has found similar facts

to constitute a constructive discharge. See Canteen Co., 317 NLRB

1052, 1068 (1995), enf’d, 103 F.3d 1355, 1365-66 (7th Cir.

1997).

 Even if these three individuals are excluded from the

analysis, however, we are still left with the seven individuals

who had not yet received offers. Had they been hired, these seven

individuals would have been more than sufficient to place Union

members in the majority of FFI’s complement of employees. One may

readily infer, then, as the ALJ in fact did, that but for FFI’s

allegedly discriminatory hiring decisions, FFI would have been

obliged to recognize and bargain with the Union. See ALJ Decision

at 16.

 We conclude, in sum, that the Director has a better than

negligible chance of establishing that FFI chose its employees so

as to avoid any obligation to bargain with the Union. Although

the evidence may permit the conclusion that FFI did not, in fact,

discriminate against RSI applicants, there is ample evidence that

FFI never intended to recognize the Union and made its hiring

decisions accordingly. Indeed, given the direct, and rather

extensive, evidence that Francisco was making hiring decisions so

as to keep Union members in the minority among her employees, we

rate the Director’s chances of succeeding as strong.

 Finally, although the ALJ did not decide whether any of

Francisco’s alleged remarks about the prospective status of the

Union constituted violations of section 8(a)(1) of the Act, as

the Director asserts, because these remarks are relevant to the

asserted need for interim relief, we think it useful to point out

that the Board repeatedly has found that comparable remarks

indeed do run afoul of this provision. Section 8(a)(1) provides

that it is an unlawful labor practice for an employer "to

interfere with, restrain, or coerce employees" in the exercise of

their rights under the Act. 29 U.S.C. sec. 158(a)(1). As the

Board has recognized, until a successor employer has hired its
entire complement of employees, it does not know how many of the

unionized employees of its predecessor will be in that

complement, and so it cannot know whether it will be obligated to

recognize and bargain with the union. Thus, "[w]hen an employer

tells applicants that the company will be nonunion before it

hires its employees, the employer indicates to the applicants

that it intends to discriminate against the [predecessor’s]

employees to ensure its nonunion status." Kessel Food Mkts, Inc.,

287 NLRB 426, 429 (1987), enf’d, 868 F.2d 881 (6th Cir.), cert.

denied, 493 U.S. 820, 110 S. Ct. 76 (1989). Remarks to this

effect are deemed to be "blatantly coerc[ive]," in the sense that

they discourage union-represented employees from seeking

employment with the successor and in this way abet the

successor’s effort to avoid having to recognize and bargain with

the union. Eldorado, Inc., supra, 2001 WL 1083271, at *1, quoting

Advanced Stretchforming Int’l, Inc., 323 NLRB 529, 530 (1997),

enforced in relevant part, 233 F.3d 1176 (9th Cir. 2000), cert.

denied, 122 S. Ct. 341 (2001); see also Bay Area Mack, supra, 293

NLRB at 125 & n.5; Kessel Food Mkts., 287 NLRB at 429; State

Distributing Co., 282 NLRB 1048, 1059 (1987). So, if Francisco

told Michael Ritchay that the new store "wouldn’t be a union,"

Tr. 432-33; if she told Joann Schrader that she might recognize

the Union "down the road" but not right away, Tr. 340; if she

told Evonne Everson that "only 50 percent of the employees [would

be hired,] because she wouldn’t have the Union," GC Ex. 29; if

she told Carrie Clark that "there was going to be a lot of new

faces because she wanted to keep the union out," Tr. 362; if she

complemented Tina Warriner on her skills but queried whether

Warriner could work "for a nonunion store," Tr. 253; if she told

Joe Curtis that he would be fired if she were forced to take the

Union back, Tr. 543; and if she told Robert Schumacher that

"she’d hire us all back if we would vote out the union," Tr. 412,

then Francisco signaled to RSI employees that she did not plan to

hire enough of them to make recognition of the Union compulsory.

To that extent, she engaged in coercive conduct that violated

section 8(a)(1).

 B. Adequate Remedy at Law and the Balance of Harms

 "Section 10(j) relief is an extraordinary remedy," Szabo v.

P*I*E Nationwide, Inc., 878 F.2d 207, 209 (7th Cir. 1989)

(internal quotation marks and citation omitted), reserved for

"those situations in which the effective enforcement of the NLRA

is threatened by the delays inherent in the NLRB dispute

resolution process," id. In assessing the propriety of interim

relief in this case, we must focus on the collective bargaining

rights of the store’s employees and what belated relief may mean

to the future exercise of those rights. Hoffman v. Inn Credible

Caterers, Ltd., supra, 247 F.3d at 369; see also Electro-Voice,

83 F.3d at 1567, 1572. As summarized above, the Director has

presented evidence which, if believed, indicates that FFI refused

to hire a number of RSI employees so as to avoid a duty to

bargain with the Union. Based on that evidence, the Director has

asked for an order requiring FFI, inter alia, to offer employment

to the RSI employees that FFI failed to hire and to recognize and

bargain with the Union. We must consider whether, in the absence

of the relief that the Director has requested, the right of store

workers to organize, and to reap the benefits of collective

bargaining, will be irreparably undermined. See id. at 1572-73;
Inn Credible Caterers, 247 F.3d at 369.

 The district court was not persuaded that the Union faced

the prospect of irreparable harm in the absence of interim

injunctive relief. This was not a case like Electro-Voice, the

court reasoned, in which there was "persuasive" and "egregious"

evidence that the employer had committed unfair labor practices

that had a chilling effect upon the union’s efforts to organize.

R. 23 at 5-6. On the contrary, FFI had solicited applications

from all of RSI’s employees; it had made offers to twenty nonsupervisory RSI employees and three supervisors; and Francisco

had actively recruited several RSI employees, including one who

was an active Union supporter. Id. at 6. The court also noted

that several FFI employees had acknowledged in testimony that

they would be allowed to determine the matter of unionization

themselves. Id. In short, "the alleged facts do not indicate that

Francisco Foods has a propensity for coercive acts which would

severely harm future Union efforts." Id. Even if FFI did engage

in unfair labor practices, the court concluded, the Board had the

ability to order FFI to bargain with the Union and to hire any

employees who were improperly refused employment with FFI to be

hired. Id. at 6-7.

 In defense of these findings, FFI makes one point that we

must address at the outset--that the Director put on no evidence

of irreparable harm that will occur in the absence of an

injunction, and that he necessarily failed as a consequence to

carry his burden to establish such harm. We do not know why the

Director chose not to make an independent case on irreparable

harm, but we do not agree that the omission left the record

devoid of evidence from which the prospect of an irreparable

injury may be inferred. In appropriate circumstances, the same

evidence that establishes the Director’s likelihood of proving a

violation of the NLRA may provide evidentiary support for a

finding of irreparable harm. Pye v. Excel Case Ready, 238 F.3d

69, 74 (1st Cir. 2001). At the same time, as we mentioned at the

outset, a strong showing as to the Director’s likelihood of

success will permit a weaker showing as to the balance of harms

posed by the grant or denial of interim injunctive relief.

Electro-Voice, 83 F.3d at 1568.

 In this case, the Director presented relatively compelling

evidence that FFI made a calculated decision to evade the

obligation to bargain with the Union as RSI’s successor by hiring

only a minority of RSI’s employees. As the Director points out,

the harms posed to a union and its members in this situation are

well-recognized. A union finds itself "in a peculiarly vulnerable

position" in the transition from predecessor to successor. Fall

River, 482 U.S. at 39, 107 S. Ct. at 2234. "It has no formal and

established bargaining relationship with the new employer, is

uncertain about the new employer’s plans, and cannot be sure if

or when the new employer must bargain with it." Ibid. The workers

represented by the union face a similar vulnerability: "If the

employees find themselves in a new enterprise that substantially

resembles the old, but without their chosen bargaining

representative, they may well feel that their choice of a union

is subject to the vagaries of an enterprises’s transformation."

Id. at 39-40, 107 S. Ct. at 2234. Given the uncertainties that

both the union and its members face during the transition, a

successor’s refusal to recognize the union or, as allegedly was
the case here, its refusal to hire a majority of the

predecessor’s employees so as to escape that obligation, inflicts

a particularly potent wound on the union and its members. "Having

the new employer refuse to bargain with the chosen representative

of the[ ] employees [who worked for the predecessor] ’disrupts

the employees’ morale, deters their organizational activities,

and discourages their membership in unions.’" Id. at 49-50, 107

S. Ct. at 2239, quoting Franks Bros. Co. v. NLRB, 321 U.S. 702,

704, 64 S. Ct. 817, 818 (1944). 

 There can be little doubt that these oft-cited harms are

presented here. If one credits the Director’s evidence, FFI

succeeded in displacing a union that had represented store

employees for more than twenty-five years. It made no secret of

its intent, declaring from the beginning of the transition that

it would not recognize the Union when it assumed ownership of the

store. Over the course of the hiring process, Francisco’s stated

goal of keeping RSI employees in the minority, her remark to

Schumacher that "she’d hire us all back if we would vote out the

union," Tr. 421, her remark to Curtis that he would have been

fired if she had to take the Union back, Tr. 543, and her inquiry

as to whether long-time cashier Warriner could work "for a

nonunion store," Tr. 253, conveyed an unmistakable message that

union representation jeopardized the hiring prospects of RSI

employees. True, Francisco did allow for the possibility that

FFI’s employees might, at a later date, vote for union

representation. But the successor’s duty is to recognize and

bargain with the union from the outset, not simply to permit a

new vote on the matter. See Eldorado, Inc., supra, 2001 WL

1083271, at *6 n.4; Bay Area Mack, supra, 293 NLRB at 125 & n.5.

It is difficult to construe remarks akin to "I may let my new

employees decide what to do," GC Ex. 4, as support for the Union,

when the remark simply highlights the successor’s ongoing efforts

to displace the "old" employees along with the union that

represented them. Indeed, as we discussed in the previous

section, many of Francisco’s alleged remarks predicting that the

Piggly Wiggly would not be a union store when FFI took over

constitute coercive remarks in violation of section 8(a)(1) under

Board jurisprudence. See supra at 41-42. The district court’s

finding that FFI had not engaged in coercive activity, R. 23 at

5-6, is therefore inconsistent with the record evidence.

 In this setting, the remedial authority of the Board cannot

entirely cure the harms that will occur in the interim. Although

the Board can order FFI to "reinstate" any RSI employee that it

refused to hire for inappropriate reasons, the reality is that

the rejected employees are moving on to other jobs; as additional

time passes, the likelihood that they will be interested in or

able to accept a position with FFI lessens. See Electro-Voice, 83

F.3d at 1573. Meanwhile, the RSI employees whom FFI did hire are

working without the advocacy of their chosen representative.

Assuming that the Board ultimately orders FFI to bargain with the

Union, such a forward-looking order cannot fully compensate the

employees of FFI for the variety of benefits that good-faith

collective bargaining with the Union might otherwise have secured

for them in the present. Squillacote v. U.S. Marine Corp., 116

LRRM 2663, 2665 (E.D. Wis. 1984); accord Rivera-Vega v. ConAgra,

Inc., 876 F. Supp. 1350, 1371 (D. P.R.), aff’d, 70 F.3d 153 (1st

Cir. 1995). Indeed, the longer that the Union is kept out of the

store and from working on behalf of FFI’s employees, the less
likely it is to be able to organize and represent those employees

effectively if and when the Board orders the company to commence

bargaining. Electro-Voice, 83 F.3d at 1573. In sum, the district

court’s assertion that any wrong that occurred can be compensated

by way of the Board’s remedial authority "turns a blind eye to

the effect of the passage of time." Id. More than two years have

already passed since FFI assumed ownership of the store, and

years more may pass before this case is finally resolved.

The deprivation to employees from the delay in bargaining and the

diminution of union support is immeasurable. That loss, combined

with the likelihood that the Board’s ability to rectify the harm

is diminishing with time, equals a sufficient demonstration of

irreparable harm to the collective bargaining process. . . .

Id. (citation omitted).

 On the other side of the ledger, a grant of interim relief

will impose obvious burdens on FFI, albeit ones that are only

cursorily noted by the company on appeal. See FFI Br. at 40.

Reinstatement of the ten RSI applicants whom FFI did not hire/15

will likely cause some displacement among FFI’s current

employees, although we note that five of those ten employees had

relatively short tenures with RSI, which makes it less likely

that they would accept jobs if offered them at this date.

Moreover, requiring FFI to bargain with the Union will

effectively unionize FFI’s workforce for the first time. This

will certainly mark a significant change for the employees who

never worked for RSI and consequently were not represented by the

Union.

 However, the Director has presented a strong case on the

merits and has already secured a favorable ruling from the ALJ

who conducted the merits hearing. The Director’s case, and the

ALJ’s findings, both suggest that FFI displaced the Union as the

representative of the store’s employees by means of

discriminatory hiring decisions. In other words, FFI dramatically

shifted the status quo in its favor through illegal means. See

Inn Credible Caterers, 247 F.3d at 369 ("By its own violation of

the Act, [the successor] was able to hire a non-union workforce

and thereby threaten to weaken severely, if not destroy, the

power of the predecessor’s employees to assert their collective

bargaining rights."). The longer that the successor employer is

permitted to benefit from a state of affairs that its own

wrongdoing has brought about, the less likely it is that a final

order in the Board’s favor will be able to redress the wrongs

that have been done and to restore the status quo ante. ElectroVoice, 83 F.3d at 1573. Restoration of that status quo is a vital

means of preserving the Board’s ultimate ability to provide

meaningful redress for the wrongs alleged.

 Given the Director’s likelihood of prevailing on the merits,

coupled with the recognized gravity of the harms posed to the

collective bargaining rights of the store’s employees, we find

that the balance of the harms favors an award of interim relief.

See id.

C. Public Interest

 Congress authorized interim injunctive relief via section
10(j) as a means of protecting public rather than private

interests. Szabo v. P*I*E Nationwide, Inc., supra, 878 F.2d at

209-10. The NLRA embodies a public policy that aims to foster the

free flow of commerce by promoting the collective bargaining

process and "protecting the exercise by workers of full freedom

of association, self-organization, and designation of

representatives of their own choosing, for the purpose of

negotiating the terms and conditions of their employment or other

mutual aid or protection." 29 U.S.C. sec. 151. Thus, the interest

at stake in a section 10(j) is "the public interest in the

integrity of the collective bargaining process." Eisenberg v.

Wellington Hall Nursing Home, Inc., 651 F.2d 902, 906-07 (3d Cir.

1981); see also Hirsch v. Dorsey Trailers, Inc., 147 F.3d 243,

247 (3d Cir. 1998); Asseo v. Pan American Grain Co., 805 F.3d 23,

28 (1st Cir. 1986). That interest is placed in jeopardy when the

protracted nature of Board proceedings threatens to circumscribe

the Board’s ability to fully remediate unfair labor practices.

See Electro-Voice, 83 F.3d at 1574; see also Miller v. California

Pacific Med. Ctr., supra, 19 F.3d at 460.

 Given the nature of the unfair labor practices charged in

this case and the evidence supporting the Director’s allegations,

interim relief would serve the public interest. If, as the

Director alleges, FFI deliberately displaced the Union by

refusing to hire RSI employees it otherwise would have hired, it

committed violations that strike at the heart of the collective

bargaining process. As we have discussed, while the parties await

the final resolution of the Director’s complaint, the likelihood

of the Board being able to effectuate complete relief on that

complaint is decreasing: RSI employees that FFI did not hire are

scattering to other jobs, the RSI employees who were hired are

left without the benefits of representation, and support for the

Union is no doubt eroding. By halting this progression away from

the status quo ante, interim relief will help to preserve the

Board’s remedial authority and in that way serve the collective

bargaining process. 

III.

 We conclude that the district court abused its discretion in

denying the Director’s petition for interim injunctive relief

pursuant to section 10(j). A thorough review of the record

reveals that the Director has a better than negligible-- indeed,

strong--likelihood of prevailing on the merits of his charge that

FFI evaded what would otherwise have been its obligation to

recognize and bargain with the Union by conducting a

discriminatory hiring process. That likelihood is borne out by

the ALJ’s decision in favor of the Director. Interim relief in

these circumstances is widely recognized as an appropriate and

necessary means of preserving the Board’s remedial authority.

Interim relief will also serve the public interest by fostering

the integrity of the collective bargaining process, which FFI’s

alleged wrongs sought to disrupt.

 We therefore REVERSE the district court’s judgment and

REMAND with directions to grant the Director’s petition for

relief pursuant to section 10(j) and to enter an order requiring

FFI to (1) extend offers of interim employment to Robert Birkrem,

Carrie Clark, Jamie Kotlowski, Tara Manthei, Alan Pipping, Penny

Pipping, Ryan Sasada, Robert Schumacher, Janet Simmons, and Tina
Warriner; and (2) upon request, recognize the Union as the

bargaining representative of its employees and to engage in

collective bargaining with the Union. The Director has requested

that FFI also be ordered to rescind any changes in work

conditions that it has unilaterally imposed on store employees

since its takeover of the store. Rescission can be appropriate

when it appears that the employer has improperly circumvented the

collective bargaining process in order to alter working

conditions. See, e.g., Rivera-Vega v. ConAgra, Inc., supra, 70

F.3d at 162. The Director has only identified two such changes

here, however--a new health insurance plan and a tightening of

vacation eligibility--without discussing how those particular

changes, left in place pending a final remedial order, might

impair the Board’s ability to effectuate complete relief. See

Director’s Br. at 10, 38-40. On remand, the district court may

entertain additional evidence and argument on this point and, in

the exercise of its discretion, determine whether interim

rescission of the changes is appropriate.

FOOTNOTES

/1 Paragraph 6.2j of the purchase and sale agreement entered into

by FFI and RSI provided that, pending consummation of the sale,

RSI would not extend any existing labor agreement with the Union

or enter into any new agreement with the Union that contained a

continuation clause or that would otherwise bind FFI. GC Ex. 11

at 11, para. 6.2j.

/2 After hearing the evidence, the ALJ credited Everson’s written

statement over her testimony. Francisco Foods, Inc. and United

Food & Commercial Workers Union, Local No. 73A, AFL-CIO-CLC, No.

30-CA-14738, Decision (N.L.R.B. Div. of Judges Mar. 31, 2000)

("ALJ Decision") at 11 para. 3. "It is obvious to me, observing

the demeanor of the witness and the fact that she now works for

Respondent, that the truth is in Everson’s statement on April 6

and not in her testimony before me." Id.

/3 Based in part upon the apparent discrepancies in Curtis’s

explanation as to how he had contacted FFI’s attorney, the ALJ

credited his original testimony. "Suffice it to say I believe it

was Francisco and possibly also Maxwell who mentioned the 50%

matter to Curtis. And Curtis was trying to undo some damage from

his testimony the day before. I am convinced that the

Respondent’s counsel did nothing improper, however." ALJ Decision

at 13.

/4 Four additional individuals had applied for, but had not yet

been offered employment with FFI. However, after hearing the

evidence, the ALJ found that FFI had legitimate, performancerelated reasons not to offer these four individuals employment.

ALJ Decision at 8-10. The Director does not quarrel with that

determination here. Director’s Br. at 10 n.7. Accordingly, we

shall exclude these individuals from consideration.

/5 Simmons testified that she had asked Francisco a week or so

after the sale was announced whether she would have a job with

FFI. According to Simmons, Francisco responded simply, "I don’t

know." Tr. 456. Simmons went on: "I was going to walk away and

then [Francisco] said, no wait a minute. And I went--I said that

I had talked with other people in the store and she had told them
that they had a job and I would like to know, yes or no, whether

I had a job or not, and she said, I don’t know. And that’s where

I left it." Id.

/6 Francisco testified that she had not yet prepared a work

schedule for FFI at this point in time. Tr. 653. Penny Pipping,

however, testified that fellow employee Ryan Sasada had found the

schedule and had shown it to her. Tr. 688-89. According to

Pipping, with three exceptions, the new schedule was filled with

the names of new employees. Tr. 688.

/7 Because May 16 was a Sunday, the sale did not actually close

until the following day, May 17.

/8 We may, of course, take judicial notice of the ALJ’s decision.

See Rivera-Vega v. ConAgra, Inc., 70 F.3d 153, 157 n.3 (1st Cir.

1995); Seeler v. Trading Port, Inc., 517 F.2d 33, 37 n.7 (2d Cir.

1975).

/9 This court has declined to articulate any rule about the

appropriate way in which to view the facts when evaluating a

request for interim injunctive relief pursuant to section 10(j).

See Electro-Voice, 83 F.3d at 1567 n.16; see also Kinney, 881

F.2d at 488-89. Our sister circuits often observe that the

Director is entitled to a favorable construction of the evidence

in this context. See, e.g., Hoffman v. Inn Credible Caterers,

Ltd., 247 F.3d 360, 365 (2d Cir. 2001); Sharp v. Webco Indus.,

Inc., 225 F.3d 1130, 1134 (10th Cir. 2000); Arlook v. S.

Lichtenberg & Co., 952 F.2d 367, 371-72 (11th Cir. 1992);

Pascarell v. Vibra Screw, Inc., 904 F.2d 874, 882 (3d Cir. 1990).

That observation is usually made, however, in the context of

evaluating whether the Director has "reasonable cause" to believe

that the employer has violated the NLRA. See Kinney, 881 F.2d at

488-89 & n.1. In Kinney, this court held that "reasonable cause"

is not part of the 10(j) analysis. 881 F.2d at 488-93. "Once the

Board seeks injunctive relief under sec. 10(j)," we concluded,

"the only question for the court is whether the Board has

demonstrated that relief is ’just and proper’ under the approach

traditionally applied to equitable cases filed by public

agencies." Id. at 493 (footnote omitted). We do not decide here

whether the Director is always entitled to a favorable

construction of the evidence--even if, for example, the district

judge has conducted a full-blown evidentiary hearing on the

Director’s application and resolved certain credibility questions

or other conflicts in the evidence against him. See Kinney, 881

F.2d at 489. We decide only that when the district court decides

the Director’s request for 10(j) relief entirely on a paper

record, we owe the Director a favorable reading of that record.

See id.

/10 The successorship analysis necessarily focuses on nonsupervisory employees, given that supervisors are excluded from

the bargaining unit. See, e.g., NLRB v. Joe B. Foods, Inc., 953

F.2d 287, 294-97 (7th Cir. 1992).

/11 Indeed, the evidence supports the inference that Francisco’s

failure to tell employees whether or not FFI planned to hire them

was a signal that offers would not be extended to them. None of

the four RSI employees whom FFI rejected, according to the ALJ,

for legitimate, performance-related reasons, ALJ Decision at 8-
10, was ever actually told that he or she would not be hired. See

Tr. 246, 335, 557, 564. In fact, Francisco testified that when

FFI decided not to hire someone, "[w]e didn’t respond" to that

individual’s application. Tr. 619.

/12 Recall that sixteen of FFI’s non-supervisory employees had

formerly worked for RSI. Francisco had extended offers to four

other RSI employees. Three of these individuals--Bob Schumacher,

Penny Pipping, and Alan Pipping, were among the ten individuals

whose applications Francisco was asked to return on May 12. The

fourth employee, Peggy Koepsel, accepted a job elsewhere.

/13 The record does reveal that Francisco made job offers to a

number of RSI employees fairly soon after the sale to FFI was

announced. See Tr. 432-33 (Ritchay); Tr. 489, 492 (Wittchow); Tr.

496-97 (Simonis); see also Tr. 353-54 (Schrader). Indeed, it was

the fact that others had already been promised a job with FFI

that accounted for the frustration that Janet Simmons expressed

to Francisco about her own uncertain status. Tr. 456.

/14 We should point out that one RSI employee, Evonne Everson,

was hired just a day or two before FFI took over the store. See

Tr. 278. By this time, Penny Pipping, to whom Francisco had

extended an offer, had received her application back from

Francisco and had torn it up. Arguably, then, Francisco knew when

she hired Everson that Pipping was not going to accept a job with

FFI and that, at most, nineteen of FFI’s non-supervisory workers

(just under one-half) would have been former employees of RSI.

/15 As we noted earlier, we are excluding from consideration the

additional four applicants whom the ALJ determined were not hired

for legitimate, performance-related reasons. See supra n.4.