Full opinion text
ILANA DIAMOND 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. § 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. § 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. § 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 con-elude 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 eviden-tiary 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. 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. 633-85. According to assistant store manager Michael Ritchay, Francisco 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 á 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 un-ion_” Tr. 432-33. According to Rit-chay, 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 Ev-erson’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. 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 Warri-ner 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, War-riner prepared the initial draft of the weekly employee work schedule for Francisco’s review and revision.) Francisco then proceeded to inquire whether Warri-ner, 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: MA-S-A-S-E-Y. Tr. 593. Curtis eventually conceded that someone may have given him Macy’s telephone number. Tr. 596. 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. Two of these people had long affiliations with the store: Janet Simmons had worked at the Piggly Wiggly for eleven years, while Tina Warriner had worked there for twelve and one-half 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 Kot-lowski, 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 compensations 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 Man-thei, who eventually discarded it. 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 Warri-ner, 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. 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 injunc-tive 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, nondiscriminatory 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”). 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 succes-sorship 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 á 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, Kot-lowski, 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 non-supervisory 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. § 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, 136 L.Ed.2d 608 (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. 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, 142 L.Ed.2d 310 (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, 87 L.Ed.2d 68 (1985); Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (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, 112 L.Ed.2d 1042 (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© 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, 96 L.Ed.2d 22 (1987); see also NLRB v. Burns Int’l Security Servs., Inc., 406 U.S. 272, 280-81, 92 S.Ct. 1571, 1578-79, 32 L.Ed.2d 61 (1972). When FFI opened for business, only a minority of its non-supervisory employees (sixteen of thirty-nine) formerly had worked for RSI. 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 § 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 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 Joint Executive Bd., AFL-CIO, 417 U.S. 249, 262 n. 8, 94 S.Ct. 2236, 2243 n. 8, 41 L.Ed.2d 46 (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. § 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. § 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, 117 L.Ed.2d 618 (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 union-affiliated 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 un-ioned 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 War-riner inquired about the chances of FFI hiring her, Francisco, according to Warri-ner, 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, performance-related 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 nondiscriminatory 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. An important wrinkle in the Director’s case is the fact Francisco did make offers to twenty RSI employees for non-supervisory positions with FFI. When FFI assumed ownership of the store, it did so with a complement of thirty-nine non-supervisory 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. 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 rehi