Pate

*862 MEMORANDUM **

The Acting Director of Region 21 of the National Labor Relations Board (“the Board” or “the petitioner” herein) appeals the district court’s order denying the Board’s petition pursuant to Section 10(j) of the National Labor Relations Act, 29 U.S.C. § § 160(j), for injunctive relief pending final disposition of unfair labor practice charges filed against McKesson HBOC, Inc., dba McKesson Drug Company. We have jurisdiction under 28 U.S.C. § 1292 (a)(1), and we vacate and remand for further proceedings.

We cannot say that the district court abused its discretion by concluding that the petitioner has a “fair chance” rather than a “likelihood” of success on the merits of the unfair labor practice charge such that a showing — rather than a presumption — of irreparable injury is required. Miller v. California Pacific Medical Center, 19 F.3d 449, 460 (9th Cir.1994) (en banc).

But by emphasizing in its irreparable harm analysis the mere “two week delay” until the scheduled hearing before the administrative law judge (“the ALJ”), the district court appears to have relied upon an erroneous assumption that the ALJ could compel the parties to bargain pending the Board’s…