Overnite Trans v. NLRB ( 2001 )

Rehearing en banc granted by order
filed 7/5/01. Panel decision filed
2/16/01 is vacated.
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OVERNITE TRANSPORTATION COMPANY,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
No. 99-2494
Respondent,
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS,
Intervenor.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
OVERNITE TRANSPORTATION COMPANY,
No. 00-1065
Respondent,
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS,
Intervenor.
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
(18-CA-13394, 18-CA-13481, 18-CA-13642, 18-CA-13438,
18-CA-13484, 18-CA-13394-51, 18 RC-15812, 18-CA-13394-35,
18-CA-13395-36, 9-CA-33793, 18-RC-15814, 18-CA-13394-27,
8-RC-15786, 18-RC-15782, 18-CA-13394-91, 18-CA-13394-13,
18-RC-15768, 18-CA-13916, 4-RC-18747, 5-RC-14213,
9-RC-16504, 9-RC-16505)
Argued: June 8, 2000
Decided: February 16, 2001
Before NIEMEYER and KING, Circuit Judges, and
Irene M. KEELEY, United States District Judge for the
Northern District of West Virginia, sitting by designation.
_________________________________________________________________
Petition for review denied and cross-application for enforcement
granted by published opinion. Judge King wrote the majority opinion,
in which Judge Keeley joined. Judge Niemeyer wrote a dissenting
opinion.
_________________________________________________________________
COUNSEL
ARGUED: Kenneth T. Lopatka, MATKOV, SALZMAN, MADOFF
& GUNN, Chicago, Illinois, for Overnite. William Maurice Bern-
stein, Senior Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Board. Carey Robert Butsavage, BUTSAV-
AGE & ASSOCIATES, P.C., Washington, D.C., for Teamsters. ON
BRIEF: Kenneth F. Sparks, Christopher A. Johlie, MATKOV,
SALZMAN, MADOFF & GUNN, Chicago, Illinois, for Overnite.
Leonard R. Page, General Counsel, Linda Sher, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. Marc A. Stefan, BUTSAVAGE & ASSOCIATES, P.C.,
Washington, D.C., for Teamsters.
_________________________________________________________________
OPINION
KING, Circuit Judge:
Overnite Transportation Company petitions for review of the Deci-
sion and Order (the "Order") entered against it on November 10,
1999, by the National Labor Relations Board (the"Board"). Pursuant
to its statutory authority and the Supreme Court's decision in NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969), the Board affirmed its
Administrative Law Judge ("ALJ"), directing Overnite to bargain with
the International Brotherhood of Teamsters, AFL-CIO, and its affili-
2
ated local unions (collectively the "Union") at four of Overnite's ser-
vice centers. The Board has cross-applied for enforcement of its
Order. For the reasons explained below, we deny Overnite's petition
for review and grant the Board's cross-application for enforcement.
I.
A.
Our recitation of the facts is drawn in significant part from the
ALJ's Decision of April 10, 1998 (the "Decision"), which was
affirmed by the Board as to "rulings, findings, and conclusions as
modified." Overnite Transp. Co., 329 N.L.R.B. No. 91, 1 (Nov. 10,
1999).1
1 As the facts reveal, this is a complex proceeding arising in the
context of a campaign advanced by the Union to organize the bulk of
Overnite's 175 service centers throughout the country. The Union
alleged, inter alia, that Overnite had granted a discriminatory wage
increase in March 1995 to non-Union employees only, in an unlawful
attempt to discourage its employees from supporting the Union,
thereby violating sections 8(a)(1) and 8(a)(3) of the National Labor
Relations Act (the "Act").2
2 The Union also asserted that Overnite
undermined fair elections by engaging in various and pervasive unfair
labor practices at specific service centers. The Board's General Coun-
_________________________________________________________________
1 All references to the Order, along with the ALJ Decision attached
thereto, are cited accordingly.
2 Section 8 of the Act provides in pertinent part as follows:
It shall be an unfair labor practice for an employer--
(1) to interfere with, restrain, or coerce employees in the
exercise of the rights [to engage in union activities] . . . ;
...
(3) by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage
or discourage membership in any labor organization .. . ;
...
(5) to refuse to bargain collectively with the representatives
of his employees . . . .
29 U.S.C. § 158.
3
sel subsequently issued a consolidated complaint against Overnite,
alleging that the company had violated the Act in several respects
during the Union's organizing campaign. On July 29, 1995, the Gen-
eral Counsel and Overnite entered into a partial settlement agreement
with respect to the consolidated complaint, which the Board approved
and incorporated into a decision of September 6, 1995.33
After the partial settlement, several issues remained for resolution
by the ALJ, relating primarily to whether Gissel bargaining orders
were warranted at seventeen of Overnite's individual service centers.4 4
The parties thereafter agreed to litigate a sampling of the seventeen
_________________________________________________________________
3 The partial settlement agreement addressed a number of the Union's
section 8(a)(1) and 8(a)(3) allegations arising out of the 1995 discrimina-
tory wage increase. It dealt with conduct for which the only remedy
required was a cease and desist order. In broad terms, the agreement rec-
ognized that the Board could forthwith enter an order:
1) prohibiting Overnite from engaging in practices including
the "grant [of] wage or benefit increases motivated by a desire
to thwart a representation campaign," and soliciting grievances
or making threats tending to discourage union representation;
and
2) directing Overnite to affirmatively take certain actions, such
as
a) providing monetary relief to employees at the Kansas City
(Missouri), Blaine (Minnesota), Indianapolis (Indiana), and
West Sacramento (California) terminals to compensate for
the withheld March 5, 1995 wage increase, and
b) posting notice of the settlement stipulations at all of Over-
nite's terminals.
See J.A. 91-97. All issues relating to conduct that would support reme-
dies beyond a cease and desist order were expressly excluded from the
partial settlement agreement.
4 In Gissel, the Supreme Court recognized that the Board may properly
exercise its remedial authority by issuing a bargaining order when "an
employer has succeeded in undermining a union's strength and destroy-
ing the laboratory conditions necessary for a fair election[.]" 395 U.S. at
612. Accordingly, such bargaining orders are commonly referred to sim-
ply as "Gissel orders."
4
Gissel cases, on the premise that a limited decision by the ALJ would
assist them in determining how to advance with the remaining issues.
By the terms of the partial settlement, the General Counsel reserved
the right to use any relevant and admissible evidence, including evi-
dence pertaining to allegations resolved therein.
In his Decision, the ALJ determined that Overnite had committed
unfair labor practices affecting employees on both a nationwide and
a unit-specific basis. The ALJ proceeded to find that such conduct
justified issuance of Gissel orders at four of Overnite's service cen-
ters, i.e., those located in Lawrenceville (Georgia), Louisville (Ken-
tucky), Norfolk (Virginia), and Bridgeton (Missouri). The Board, by
its Order, adopted the ALJ's Decision and directed Overnite to bar-
gain with the Union at those four service centers. Overnite petitions
for review of the Board's decision on the Gissel orders, and the Board
cross-applies for enforcement of its Order.
B.
In the exhaustive findings set forth in his Decision, the ALJ
catalogued multiple violations of the Act by Overnite, consisting of
both national violations and unit-specific violations. Those findings
are summarized below.
1. National Violations
Two specific violations were found by the ALJ and the Board to
have been committed by Overnite on a system-wide basis. These
national violations consist of a pair of discriminatory wage increases,
in violation of sections 8(a)(1) and 8(a)(3) of the Act, the first taking
effect in March 1995, and the second in January 1996.
a. The March 1995 Wage Increase
At the core of this proceeding -- and a key justification for issu-
ance of the four Gissel orders -- is the nationwide wage increase
granted by Overnite to its non-Union employees in March 1995.
Beginning in 1991, Overnite had departed from its practice of grant-
ing across-the-board raises to its hourly employees each October;
5
Overnite instead deferred the raise anticipated in October 1991 until
January 1992, granting additional small hourly increases in January
1993 and January 1994. Along with its 1994 hourly increases, Over-
nite introduced a performance incentive plan (PIP), which provided
for employee bonuses if the company met its quarterly and annual
earning targets. Due to its disappointing financial performance, how-
ever, Overnite awarded only one quarterly PIP bonus in 1994.
Attributable perhaps to employees' unfulfilled bonus expectations,
the Union stepped up its organizing efforts in September 1994. Over-
nite's president at the time, Thomas Boswell, responded aggressively
to the Union organizing effort in a November 22, 1994 letter to the
employees, in which he warned:
I guarantee you, based on what they have done at other com-
panies, the Teamsters will not help us to better make our tar-
gets or pay you bonuses or salary increases. . . . The long
lasting record of the Teamsters is not just that they failed to
deliver on their promises, but that when their demands have
been met, trucking companies have often lost the battle to
survive.
Overnite, 329 N.L.R.B. No. 91 at 17. Similar warnings were made in
a December 7, 1994 letter that Overnite distributed to drivers and
dock workers in Los Angeles who were attempting to organize. Id.
Overnite invoked the Union experience at its Chicago facility, declar-
ing that "just like in Chicago, after the Union was unable to keep the
wild promises it made before the vote, it called the employees out on
strike." Id. The December 7 letter ominously concluded: "Do you see
any good reason to bring this outside Union in, pay your money to
it, and at the same time run the risk of tearing apart everything you
now have?" Id. at 18.
These anti-Union statements were a harbinger of the first discrimi-
natory wage increase, conceived in January 1995, when Jim Douglas
replaced Boswell as Overnite's president. Just before he left, Presi-
dent Boswell had proclaimed that non-Union employees would
receive a 3.5% increase, effective January 1, 1995. Boswell also
6
revealed certain other workplace improvements, calculated to appease
the employees.5
5
When Jim Douglas took over, however, he immediately determined
that employees should be given an additional raise. On February 10,
1995, President Douglas announced the "highest annual hourly raise
in Overnite's history," effective March 5, 1995. He advised the
Union, however, that employees in the represented units6 6 would not
receive the raise, unless negotiated through collective bargaining. The
March 5, 1995 wage hike, as the ALJ aptly noted,"was not granted
silently." Id. at 21. Overnite's management heralded the increase in
the company newsletter, The Overniter, while emphasizing that
employees in the four represented units would have to wait until wage
issues were settled through Union negotiations. Id. Reviewing the
company's conduct in this regard, the ALJ concluded:"The clear
implication was that a vote for the Teamsters forfeited any benefits
given by [Overnite] to the nonunion employees." Id.
Overnite further resisted the Union's widespread organizational
efforts by holding out the prospect of certain non-wage concessions.
For example, employees were advised that President Douglas was
committed to increasing the drivers' speed limits, in order "to make
the drivers happy." Id. "Only Douglas could deliver. The Teamsters
could not, Overnite repeatedly claimed, as shown by its dealings with
the Union in Chicago, where Local 705 was certified in 1982 and bar-
gaining had little favorable results for the Teamsters." Id. at 22. Ana-
lyzing Overnite's characterization of the Chicago experience, the ALJ
further found that the company "explained it in a way that made it
implicit that [Overnite] had no intention of bargaining in good faith
. . . [giving] the impression that bargaining would be futile." Id. Over-
nite drew attention to the Chicago standoff to communicate "that the
_________________________________________________________________
5 The ALJ made clear that this was essentially Overnite's standard,
yearly wage increase, and, as such, unobjectionable. Overnite, 329
N.L.R.B. No. 91 at 18.
6 As of March 1995, the represented units -- that is, those locations at
which the Union acted as collective bargaining representative -- con-
sisted of the company's service centers in Kansas City, Indianapolis,
West Sacramento, and Blaine.
7
only way that the Teamsters could bring pressure on Overnite was by
striking." Id.
President Douglas travelled extensively to certain of Overnite's
service centers in early 1995, personally meeting with employees to
convey his commitment to responsive management. Although Doug-
las insisted that his conversations with employees were intended sim-
ply to introduce them to his management style and his direction, the
ALJ found that their real impact was to "draw the difference between
him and Boswell and to emphasize that he looked upon the employees
more favorably and would take care of them." Id. at 19. His discus-
sions with employees encompassed wages, overtime, and benefits,
i.e., the fundamental terms and conditions of employment, and the
ALJ found that "Douglas's purpose was to explore and remove the
employees' concerns." Id.
Consistent with Douglas's efforts, Overnite promoted a "Give Jim
a Chance" campaign, distributing shirts and buttons emblazoned with
that slogan. Id. at 20. This message was borne by a corps of "trouble-
shooters" dispatched by Overnite to identify the sources of employee
unrest. Id. A "group of roving, solid supporters" of Overnite, these
"troubleshooters" were assigned to travel from service center to ser-
vice center, soliciting grievances and reporting them back to Over-
nite's headquarters. Id. The ALJ found that the troubleshooters'
solicitations contained an implied promise to resolve the grievances.
Id. In effect, the ALJ found that Overnite, under Douglas's direction,
actively sought and acquired knowledge as to "what the employees
were so dissatisfied about and why they were seeking out the Team-
sters." Id. at 20-21. Equipped with that knowledge, the company took
measures -- the discriminatory 1995 wage increase, most promi-
nently -- designed to convince the employees that only the company
could solve their problems. Id. at 22.
b. The January 1996 Wage Increase
The second of the two discriminatory wage increases was imple-
mented by Overnite in January 1996, arising from a series of events
chronicled in the ALJ's Decision. In early 1995, Overnite enlisted the
services of management consultants who recommended substantial
operational changes, including the closure of service centers, route
8
changes, and decreased hours. Id. at 55. To make these proposed
changes more palatable to employees, President Douglas and other
Overnite officials decided to propose a fifty-cent-per-hour wage
increase -- to be funded by significant productivity-boosting mea-
sures. Id. at 56. Accordingly, Overnite drafted a productivity agree-
ment setting forth the hourly raise, along with other enhancements to
insurance benefits and overtime pay. These benefit increases were
conditioned on the Union's national committee consenting to Over-
nite's right, inter alia, to "`[s]et, change and cancel days and hours of
work' for all job classifications" and to set driving schedules, routes,
and running times. Id. at 57.
Overnite pitched the productivity agreement to its employees in
December 1995. The ALJ characterized the company's tactics as fol-
lows:
What Overnite did here was to send by overnight mail its
productivity agreement to the Union, wait 1 day, and then
make its presentation to the employees directly, 2 days
before negotiations were to or did resume. That bypasses the
Union in the same way as if [Overnite] never made any pro-
posal at all to the Union, and Overnite certainly gave the
Union no adequate opportunity to digest the proposal or to
respond or to begin discussion.
Id. at 58. Ultimately, the Union's national committee rejected the pro-
posed productivity agreement, and Overnite unilaterally granted the
fifty-cent increase to employees at ninety-three percent of its service
centers -- all those except the represented units-- "continuing its
established practice of yearly increases and holding back on only the
ones that had voted for the Teamsters." Id. at 59.
Overnite then took measures to ensure that this discriminatory
wage increase would be noticed by its employees. Indeed, the ALJ
found that Overnite "publicized the withholding of the increase to
demonstrate that voting for the Teamsters presented serious, adverse
consequences." Id. at 60. The company flaunted its actions, and it
"distributed [anti-union] campaign flyers stating that employees in the
represented units were 50 cents per hour behind nonunion employees
after the 1996 wage increase and blamed the Union for refusing to
9
allow the employees it represented to accept the increase and refusing
to bargain above the increase." Id.
2. The Unit-Specific Violations
In addition to the national violations, the ALJ found that Overnite
had committed scores of unfair labor practices at the four Gissel loca-
tions.
a. Lawrenceville
In late 1994, the Union began organizing at Overnite's
Lawrenceville, Georgia service center. A representation election was
conducted four months later, in April 1995. The Union lost the elec-
tion, by a vote of forty-two to thirty-eight, and thereafter complained
of Overnite's pre-election misconduct.
The ALJ found that Overnite engaged in a series of unfair labor
practices at Lawrenceville during the election campaign. For example,
Overnite was found to have restricted access to bulletin boards that
had previously been available for employee postings. Overnite's "pur-
pose was to discourage the employees in their campaign[,]" and the
ALJ concluded that Overnite had thereby violated section 8(a)(1) of
the Act. Id. at 34. Other unfair labor practices found by the ALJ to
have been committed by Overnite included:
- Lawrenceville manager Bill Carter "gave the impression
to [an employee] that he was monitoring union activi-
ties[.]" Id.
- Carter announced to a group of employees that he had
attended a management conference, and that Overnite,
under Douglas's management, was pursuing solutions to
employee complaints regarding such issues as overtime
policies and uniforms. The ALJ found that Carter's state-
ments "unlawfully promised benefits in order to discour-
age employees from supporting the [Union]." Id.
- Carter threatened to get rid of employees if they voted to
be represented by the Union. Id. at 35. Indeed, he admit-
10
ted telling two employees that he could have fired them
for certain incidents; if they were to vote in the Union,
he would not be as lenient. Id.
- An Atlanta manager, Roger Schager, conducted several
mandatory meetings for the Lawrenceville employees at
which he made illegal threats of closure and employee
job loss. He projected that if Overnite had to operate
under a Union contract, it would be forced to go out of
business. He also warned that other trucking companies
had not been able to survive unionization. Id.
- After screening an anti-union film at one such meeting,
Schager reportedly told an employee: "[I]f you want a
Union job why don't you go and get a Union job with
a company that is a Union company." Id. at 36. On
another occasion, he unlawfully offered to help employ-
ees get jobs with union carriers if they were dissatisfied
with Overnite's non-union status. Id.
- Schager also recounted the Chicago experience to a
group of employees; Schager told them that the Chicago
unit still did not have a contract after protracted negotia-
tions, but he neglected to mention Overnite's culpability.
Id. As the ALJ observed, "[b]y Schager's omission of
any reference to the Board's finding that Overnite bar-
gained in bad faith, [Overnite] implied that bargaining
would be futile, lasting for years without any possibility
of agreement." Id.
- Similarly, in March 1995, Lawrenceville dispatcher
Mike Rivers told a group of employees that employees
at the Kansas City service center had not received the
March 5 pay raise, despite having voted for Union repre-
sentation. He added that, based on what the company's
lawyers had told him, Overnite would never sign a Union
contract. Rivers asked the employees to look at what had
happened at the Chicago service center, reminding them
that the Chicago employees had been represented by the
Union for ten to thirteen years and still did not have a
11
contract. Like Schager, he advised Lawrenceville
employees that all Overnite had to do was bargain in
good faith. Id. at 37.
- In late March, Overnite's vice president of safety, Bobby
Edwards, came to Lawrenceville and met with employ-
ees, speaking to them about Chicago in detail. Edwards
told them that the Chicago employees had voted for
Union representation and had been in negotiations with
Overnite for about ten years but still did not have a con-
tract. Additionally, he emphasized that employees at
those service centers that had voted for Union represen-
tation in 1994 and 1995 would not receive the March
1995 pay raise because the raise was subject to collective
bargaining. Id.
- At another meeting, Edwards repeated the remarks about
Chicago, adding that all Overnite had to do was negotiate
in good faith. Edwards also announced that the employ-
ees at the service centers that had voted for Union repre-
sentation before March 5 would not receive the pay raise
because it would be left "on the negotiating table." Id.
- While visiting the Lawrenceville service center, Presi-
dent Jim Douglas suggested to employees that they serve
on committees to come up with better ways to spend
benefit funds. This, the ALJ found, "amounted to solicit-
ing grievances from employees with a promise to redress
them." Id. at 38. Douglas further threatened "that man-
agement would change its attitude in the way it enforced
its work rules" if the Union won. Id. Douglas advised
one employee that if the Union's campaign were suc-
cessful, everything, including the employees' jobs and
benefits, would be jeopardized. Id.
b. Louisville
A coordinated Union organizing effort began at the Louisville,
Kentucky service center in early October 1994. By late November,
managers were soliciting employee grievances, in violation of section
12
8(a)(1) of the Act. See id. at 39. A representation election was held
on March 17, 1995, and the Union lost by two votes, eighty-five to
eighty-three. Id. at 43. The ALJ found that Overnite management,
during the period leading to the representation election, engaged in
numerous unlawful measures to, alternately, appease and threaten its
Louisville employees. Overnite's illegal conduct was found by the
ALJ to include the following:
- Louisville manager Dave Harmeier conducted a series of
employee meetings, some impromptu and some manda-
tory, in which he promised to be responsive and encour-
aged employees to give the "new vision" of Douglas a
chance. Id.
- Following this positive introduction, Douglas made a
personal appearance at the Louisville service center a
week before the scheduled election (about March 9 and
10). Douglas assured employees that he "was going to
try and `straighten stuff out,'" and he specifically men-
tioned the wage increase and improved benefits. The
ALJ found that, in the context in which they were
extended, Douglas's promises were intended to dissuade
employees from supporting the Union. Id.
- In tandem with these rosy promises, management
"warned of the harm to employees that would result if
the Union were successful." Id. at 40. One supervisor
warned employees that Overnite would "play hardball"
if the Union won, and everyone would have to work
harder. Id. Another projected that "we'd all be out of
work" if the Union were voted in. In short, the ALJ
found that Overnite "threaten[ed] employees with the
loss of their jobs and more onerous working conditions
if they selected the [Union] as their bargaining represen-
tative." Id.
- At one meeting, Vice President Edwards told the
employees that the Chicago facility still did not have any
kind of contract, and that it had been at least ten years
since the employees voted the Union in. Id.
13
- At other mandatory meetings, Edwards reported that the
Union had won in Chicago in 1984 and that Overnite had
been bargaining in good faith since then. Edwards added
that all Overnite was obliged to do was offer five days'
sick leave and "that was bargaining in good faith[.]" Id.
If the Union were voted in, he projected, "then that
means that [the Union] would start from scratch." Id.
Edwards also said that at service centers that had voted
in the Union, the pay raise would have to be negotiated,
and if the Louisville employees voted in the Union, bar-
gaining would be handled basically like negotiations in
Chicago. Id.
- Edwards discussed Chicago at yet another meeting,
recounting how company representatives would show
up, charges would be filed for bargaining in bad faith,
Overnite would go to court and pay a small fine, and
then it would not have to show up again until the follow-
ing year. Id.
- On several occasions, Edwards and Harmeier made pre-
dictions about unionization to employees assembled for
mandatory meetings. Once, Edwards pointed out that the
Louisville employees would be receiving the March pay
increase, but terminals that had voted a union in, such as
Kansas City, would not because they would have to
negotiate first. Id. Another time, Edwards opined that the
only way employees would get a contract was to go on
strike, and if they did, they could be replaced. Id. Harm-
eier also stated that the only leverage the Union had in
bargaining was to call a strike, and warned that the
Union could do so without a vote by the employees. Id.
- Louisville supervisors also took measures to impede the
employees' statutory right to distribute and read Union
literature. The ALJ found that, on one occasion, a super-
visor "literally pulled [Union] papers out of the hands of
one employee who was reading it and threw it in the
trash." Id. at 41.
14
- On the Friday night before the election, an Overnite
supervisor told an employee that Harmeier had instructed
him to get rid of all Union literature during the last week
of the campaign. Id. At about the same time, a "Team-
sters Graveyard" poster was put up in the break room,
depicting the gravestones of unionized trucking compa-
nies; among them was an Overnite headstone with an
open grave and a question mark. Id. at 21 n.10.
c. Norfolk
The Union organizing campaign began at the Norfolk, Virginia ser-
vice center in January 1995. A representation election was held on
March 3, 1995. The Union lost by a vote of fifty-eight to twenty-nine,
and objected to Overnite's illegal pre-election conduct. As in
Lawrenceville, Overnite was found by the ALJ to have violated the
Act by impeding its Norfolk employees in their use of company bulle-
tin boards for Union literature. More specifically, Overnite removed
Union literature from bulletin boards that had been made available for
the employees' general use. Id. at 48. Norfolk manager Michael Men-
denhall threatened to fire employees for posting an NLRB form on
one such bulletin board. Id. The ALJ found that Overnite engaged in
a number of other unlawful practices leading up to the election at
Norfolk, including:
- Supervisors told employees that, among the adverse con-
sequences of voting in the Union, they would lose the
March 5, 1995 pay raise. Id. at 47-48.
- Mendenhall told employees that the good things Over-
nite had planned would be postponed because the com-
pany would have to divert the funds to keep Overnite
nonunion. Id. at 48. The ALJ further found that Menden-
hall "gave some instructions about the way the union
campaign was to be run," informing employees that"he
would not stand for any union literature on his bulletin
board." Id. (emphasis in original).
- In late February 1995, Mendenhall conducted a lengthy
meeting attended by about twenty-five employees. He
15
began the meeting by stating that the Union had filed a
petition for an election and that any of the service centers
that voted in the Union before March 5 would not
receive the pay increase scheduled to take effect that day,
because the increase could not be established in the
absence of contract negotiations. He further remarked
that the service center in Chicago had not settled on a
contract after thirteen years of negotiations. Id.
- Mendenhall told the employees that he would not toler-
ate conversations about the Union while employees were
working or at the workplace, and that if they did not
comply with that policy, they had better be careful. Prior
to the Union campaign, company policy was that
employees could talk to one another as long as their con-
versation did not interfere with their jobs. Id. at 48-49.
- During the week following the February meeting,
employee David Spaugh, an outspoken Union supporter,
asked Mendenhall how long it would be before he would
be fired if the Union lost the election. Mendenhall
replied: "Everyone will be held accountable." Id. at 49.
On March 14, Mendenhall told Spaugh and fellow
employee Rich Williams that Williams had become an
"agitator." Id. He warned that he did not want to see any-
thing bad happen to either of them because of the Union
campaign, and that they should be careful. Id.
- At various other mandatory meetings, Mendenhall made
additional predictions about the consequences of union-
ization. For example, he repeated that the Kansas City
employees would not be getting the March pay increase
because they had voted the Union in. Id. at 47. He also
boasted that in the thirteen years the Union had repre-
sented employees at the Chicago service center, there
had never been a contract. If the Union were to prevail
at Norfolk, he projected, the same scenario would play
out in Norfolk: Overnite would negotiate in good faith,
but the employees would never get further than their
vote. Id. at 50.
16
- At one or more of the meetings, Mendenhall also told the
employees that if the terminal voted for Union represen-
tation, "business would be rerouted around them" and
their hours might be cut. Id. As an example, he cited the
experience at Kansas City, where "word was" that this
was happening. Id.
- On several occasions, Mendenhall threatened employees
with unspecified retaliation, letting them know that he
"was not going to stand for insubordination." Id. at 49.
Moreover, he was found to have denied pro-union
employees the same opportunities to speak at the manda-
tory meetings as anti-union employees, "cut[ting] short
employees who made pro-union comments or asked
questions for clarification." Id. at 50.
- Management threatened employees with the loss of the
company's 401(k) pension plan. Id.
- In the weeks before the election, Norfolk supervisors
gave "Vote No" hats to those employees who were going
to vote against the Union, which the ALJ found to con-
stitute interrogation of employees about their union sym-
pathies. Id. at 49-50.
- In February, a supervisor told a group of eleven or
twelve employees that if the Union were to win, they
would lose their jobs. Moreover, if the Union were to
strike, they would lose their jobs and Overnite probably
would not call them back. That same day, another super-
visor told an employee that the employees were going to
get a fifty-cent-per hour raise, but if the Union were
voted in, they would "lose it." Id. at 50.
- On March 14, a supervisor told a Norfolk employee that
he was "afraid" for himself and Overnite if the Union got
in. He expressed his concern that Overnite would not be
able to pay the Union scale, and that the employees
should look at the union companies that had gone out of
business. Id. at 49.
17
- An employee complained that supervisors"`watched
[him] like a hawk' and stayed within listening distance."
Id. at 50. The ALJ determined that not only did supervi-
sors create an impression of surveillance, but that"there
was actual surveillance and monitoring in violation of
Section 8(a)(1) of the Act." Id.
- The former Norfolk manager was sent to assist with the
anti-union campaign. The ALJ found that he unlawfully
"told employees that Douglas was working on improve-
ments of the workplace and benefits, an implied promise
of those improvements; impliedly promised the termina-
tion of the [terminal manager], if that would change
employees' pro-union sympathies; and informed
employees that strikes were inevitable[.]" Id. at 51.
d. Bridgeton
The Union began an organizing campaign when Overnite opened
a new service center in Bridgeton, Missouri, in December 1994. A
representation election was scheduled for and held on February 28,
1995. The Union lost by two votes, twenty-four to twenty-two, and
filed objections to Overnite's pre-election conduct.
In January 1995, Bridgeton manager Walter Grimes began illegally
monitoring one of the most steadfastly pro-Union drivers -- "even
checking the bathroom" -- to ensure that he was not engaging in
organizational activities. Id. at 53. Along with illegal monitoring, the
ALJ found numerous other pre-election violations, including:
- Grimes removed union literature posted on the company
bulletin board, left on tables in the break room and in the
employee bathroom. While removing the pro-Union lit-
erature, the manager allegedly remarked that he"[didn't]
like seeing that shit hanging on his board." Id.
- In January and February, local supervisors ended conver-
sations between Union supporters and other employees.
On the other hand, conversations between anti-union
18
employees and others were left undisturbed. Around the
same time, Grimes asked a union supporter what the
employees wanted. When that employee said overtime
and better benefits, Grimes responded: "They are in the
works." Id. at 54.
- Overnite's "troubleshooters" arrived in the Bridgeton-St.
Louis area around February 5 and stayed until February
14, riding with all the drivers except the two most active
union supporters. Id. at 53.
- One such troubleshooter, Andy Hamilton, told a driver
that Overnite wanted to make its employees happy,
accommodating them by improving benefits and inviting
more employee input. After the driver mentioned that
overtime would make the company a better place to
work, Hamilton assured him that it was in the works.
Hamilton also told the employee that he would look into
the idea of an employee committee that would participate
in selecting the benefit package, but advised him that
"we don't need a third party at Overnite." Id. at 53-54.
When another employee made similar suggestions about
benefits and overtime pay, Hamilton told him those
things were in the works. Id.
- During the pre-election period, Overnite sent the former
Bridgeton Manager Jeff Woods, Operations Director
Morgan, and President Douglas to speak to the Bridgeton
employees. In February, Woods told employees that
Overnite was looking into overtime and, although he
could not make any promises, he was "pretty sure" it was
going to happen and that it was "almost a sure thing,
almost a done deal." Id. at 54. Woods warned that the
Union "would not work within the Overnite environ-
ment" and that, as a result, the benefit improvements
Overnite was trying to make would be lost. Finally, just
a week before the election, he urged employees to give
the new management a chance. Id.
- About two weeks before the election, Operations Direc-
tor Morgan spoke at a mandatory meeting of about fif-
19
teen employees. He responded to questions about
overtime pay by telling them that Douglas had taken
over as president and, although he could not promise
them anything because of the Union campaign, Douglas
was looking into these problems and devising solutions.
Id. On the same day, Morgan informed a group of
employees that it was not too late to come up with non-
Union solutions to employee grievances. When one
employee remarked that other companies had better
wages and benefits, but that Overnite's profits were
higher, Morgan replied that these were the sorts of prob-
lems that they needed to present to Douglas, and that
they ought to give Jim a chance. Id. at 55.
- President Douglas made several visits to Bridgeton prior
to the election, speaking with employees about benefits,
including overtime pay. During one such conversation,
Douglas queried, "What if we gave you overtime at say,
over 45, 48 hours, but we maybe lessen something here,"
adding that they were looking into medical benefits.
Douglas proceeded to discuss the pros and cons of over-
time pay. Id. at 54.
- In another conversation, Douglas responded to an
employee question about overtime pay after eight hours
a day or forty-eight hours a week by asking "how about"
after forty-five or forty-eight hours a week, because
Overnite would not pay for the hours mentioned. Id. at
55. About a week before the election, Douglas told a
Bridgeton employee that overtime after forty-seven or
forty-eight hours would be beneficial, but that Overnite
was not considering overtime after shorter periods. Id.
- Two weeks before the election, Douglas held a meeting
with about twenty to twenty-five employees. He
announced that he wanted to know what was on their
minds, and that he was trying to change things for the
better. In response to employee questions about matters
such as overtime, uniforms, sick days, and medical bene-
fits, Douglas assured employees that he was looking into
20
such matters. The company, Douglas asserted, could take
care of its own and did not need third-party interference.
Id.
C.
As we have noted, the Board, after consideration of the extensive
record and the Decision of the ALJ, affirmed the ALJ's "rulings, find-
ings, and conclusions as modified[.]"7 7 Importantly, the Board
expressly ratified the ALJ's finding "that the withholding of the
March 1995 increase from the union-represented employees was
unlawfully motivated and violated Section 8(a)(3) of the Act." Id. at
4. In the Board's view, Overnite's wage manipulations were intended
to convey the message that employees "could choose to remain unrep-
resented and enjoy any pay increase [Overnite] might grant in the
future, or they could vote for union representation and forego such
benefits." Id. at 3. The Board also found that Overnite violated sec-
tions 8(a)(1) and 8(a)(5) of the Act in "bypassing the union and deal-
ing directly with employees in the eight recognized and six contested
units with respect to its 1996 productivity package," and violated sec-
tions 8(a)(1), 8(a)(3), and 8(a)(5) "by unilaterally and discriminatorily
withholding the wage and mileage increases from those same employ-
ees." Id. at 4.8
8 The Board agreed with the ALJ that Overnite violated
section 8(a)(3) of the Act when it announced and granted to unrepre-
sented employees the overtime portion of the productivity package "in
order to dissuade them from seeking union representation." Id.
_________________________________________________________________
7 The Board's modifications leave intact all but two of the specific vio-
lations identified by the ALJ; neither affects the propriety of the decision
to issue Gissel orders at the four contested service centers. See Overnite,
329 N.L.R.B. No. 91 at 1.
8 As of December 11, 1995, Overnite had recognized and commenced
bargaining with the Union as the representative of units of employees at
its service centers in Chicago, West Sacramento, Kansas City, Blaine,
Indianapolis, Grand Rapids, Miami, and Tucson. Id. at 56. Along with
these eight recognized units, there were six contested units for which the
Board had certified Union locals, but Overnite refused to recognize them
-- St. Louis, Milwaukee, and Rockaway (New Jersey)-- or where
Board certifications were pending -- Romulus (Michigan), North Canton
(Ohio), and Atlanta. Id.
21
Based on its evaluation of the severity and lasting inhibitive effect
of these violations, the Board then concluded that Overnite's "unfair
labor practices cannot be adequately remedied at the present time by
the Board's traditional remedies." Id. at 6. Accordingly, the Board
adopted the recommendation set forth in the ALJ's Decision, and it
issued Gissel orders with respect to Overnite's Lawrenceville, Louis-
ville, Norfolk, and Bridgeton service centers. These four Gissel orders
-- directives from the Board for Overnite to bargain collectively with
the Union as the representative of its employees-- form the basis for
the proceedings in this court.
II.
Under section 10(e) of the Act, "[t]he findings of the Board with
respect to questions of fact if supported by substantial evidence on the
record as a whole shall be conclusive." 29 U.S.C.§ 160(e). We there-
fore review the Order to determine if it is supported by substantial
evidence on the record as a whole. Universal Camera Corp. v. NLRB,
340 U.S. 474, 490-91 (1951). If the ALJ's findings of fact, as adopted
by the Board, are supported by substantial evidence, then "our inquiry
ends . . . even though we might have reached a different result had
we heard the evidence in the first instance." NLRB v. Daniel Constr.
Co., 731 F.2d 191, 193 (4th Cir. 1984) (citation omitted).
We have characterized substantial evidence as "such relevant evi-
dence as a reasonable mind might accept as adequate to support a
conclusion." NLRB v. Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 1262,
1269 (4th Cir. 1994). We have also recognized that while "substantial
evidence" is more than a scintilla, it may also be less than a prepon-
derance. AT&T Wireless PCS, Inc. v. City Council of Virginia Beach,
155 F.3d 423, 430 (4th Cir. 1998). Where the "record is fraught with
conflicting testimony and essential credibility determinations have
been made," we must give particular deference to the ALJ's findings
and the Board's conclusions. NLRB v. Nueva Eng'g, Inc., 761 F.2d
961, 965 (4th Cir. 1985) (citing NLRB v. Air Prods. & Chems., Inc.,
717 F.2d 141, 145 (4th Cir. 1983)). We must also affirm the Board's
conclusions applying the law to the facts, provided they are reason-
able and consistent with the Act. See NLRB v. Yeshiva Univ., 444 U.S.
672, 691 (1980). Ultimately, of course, courts "remain the final
22
authorities on issues of statutory construction." Shanty Town Assocs.
Ltd. v. EPA, 843 F.2d 782, 790 (4th Cir. 1988).
Moreover, the courts have consistently recognized that the Board
possesses broad discretion to craft appropriate remedies. Accordingly,
the Board's chosen remedy should be enforced "unless it can be
shown that the order is a patent attempt to achieve ends other than
those which can fairly be said to effectuate the policies of the NLRA."
NLRB v. Williams Enter. Inc., 50 F.3d 1280, 1289 (4th Cir. 1995). We
have acknowledged, however, that an election, rather than a Gissel
order, "remains the traditional, as well as the preferred, method for
determining the bargaining agent for employees." NLRB v. Appletree
Chevrolet, Inc., 608 F.2d 988, 996 (4th Cir. 1979) (Appletree I). We
therefore "exercise less deference" and require "scrupulous specificity
from the Board when it issues a mandatory bargaining order on the
authority of [Gissel]." Be-Lo Stores v. NLRB, 126 F.3d 268, 274 (4th
Cir. 1997). In any event, and notwithstanding the favored status of
elections, the Board -- given its "fund of knowledge and expertise"
-- must be accorded special respect by reviewing courts in fashioning
a remedy. NLRB v. So-Lo Foods, Inc., 985 F.2d 123, 126 (4th Cir.
1992) (quoting Gissel, 395 U.S. at 612 n.32).
III.
A.
In its 1969 Gissel decision, the Supreme Court recognized the
Board's authority to issue remedial bargaining orders in two distinct
situations. First, such orders may be appropriate in"Category I" cases,
where "exceptional," "outrageous," and"pervasive" unfair labor prac-
tices have occurred, and where the coercive effects of such practices
"cannot be eliminated by the application of traditional remedies." Be-
Lo, 126 F.3d at 274 (quoting Gissel, 395 U.S. at 613-14). Second, and
more typically, remedial bargaining orders may issue in so-called
"Category II" cases, where the Board has found that: (a) the Union
once had majority status; (b) such majority status was dissipated by
the employer's pervasive misconduct; (c) the possibility of erasing the
effects of these past pervasive practices and ensuring a fair election
is slight; and (d) employee sentiment would, on balance, be better
23
protected by a bargaining order. Appletree I, 608 F.2d at 996 (quoting
Gissel, 395 U.S. at 614).
In fashioning a remedy in Category II cases, the Board may con-
sider the scope and severity of the unfair labor practices, with an eye
to their past effect on election conditions and the likelihood of their
recurrence in the future. See Gissel, 395 U.S. at 614. If the Board con-
cludes that a fair election could not be adequately ensured by tradi-
tional remedies and "that employee sentiment once expressed through
[union authorization] cards would, on balance, be better protected by
a bargaining order, then such an order should issue." Id. at 614-15.
B.
Here, the Board expressly classified Overnite's conduct as falling
within Category II. Under Gissel, the Board is empowered to order an
employer to bargain with a union that has demonstrated majority sup-
port prior to erosion of that support by the employer's commission of
unfair labor practices. As a threshold matter, therefore, we examine
the factual underpinnings of the Union's employee support at the four
service centers at issue.
1. Lawrenceville
The Board adopted the ALJ's finding that the Union had attained
majority support at Overnite's Lawrenceville service center in Febru-
ary 1995. Overnite, 329 N.L.R.B. No. 91 at 33.. As of February 25,
1995, the Lawrenceville unit comprised eighty-six employees, forty-
five of whom were found by the ALJ to have endorsed valid petitions.
Id. Overnite contested the majority support finding, claiming that the
signed petitions on which the Board's finding was premised were
"only for an election," and did not constitute an authorization for the
Union to represent these employees.
The ALJ reasonably rejected this contention. The challenged peti-
tions stated clearly that the signer "authorize[s] the [Union] . . . to rep-
resent me in collective bargaining." Such unambiguous language,
absent affirmative proof that the signer was told that the petition
would be used solely to obtain an election, entitles the signature to be
24
counted for the purpose of establishing majority support. Gissel, 395
U.S. at 606.
Here, Overnite simply failed to meet its burden. Its argument con-
sists of an attack on the ALJ's credibility determinations, which are
entitled to acceptance absent "exceptional circumstances." See NLRB
v. CWI of Maryland, Inc., 127 F.3d 319, 326 (4th Cir. 1997). The ALJ
credited the card solicitors on the basis of their comparative demeanor
and their recollections, which were "far better and clearer" than those
of witnesses testifying to the contrary.9 9 We discern no exceptional cir-
cumstances here, and we therefore conclude that the Board was enti-
tled to adopt the ALJ's finding of majority support at Lawrenceville.
2. Louisville
The situation with respect to Louisville was much simpler than that
at Lawrenceville. It is uncontested by Overnite that the Union enjoyed
majority support at the Louisville service center. The ALJ determined
that, on January 20, 1995, when the Union sought recognition as the
employees' representative, "117 of 174 employees had signed cards
designating the Union as their representative for the purposes of col-
lective bargaining." Overnite, 329 N.L.R.B. No. 91 at 38. The Board
reasonably relied on this uncontested finding in fashioning its remedy.
3. Norfolk
The ALJ also found that the Union enjoyed majority support in the
Norfolk bargaining unit during the relevant period in 1995. Id. at 47.
This finding is not challenged by Overnite. Accordingly, the Board
properly adopted this finding for purposes of imposing its Gissel
order.
_________________________________________________________________
9 As the ALJ noted, many of the employees "were afraid of the conse-
quences of their act, now in the open, and were willing to do anything,
even to give false testimony, to preserve their jobs and their good stand-
ing with their employer." Overnite, 329 N.L.R.B No. 91 at 33.
25
4. Bridgeton
The ALJ found that the Union enjoyed majority support at the
Bridgeton facility from its inception. Id. at 52. Opened in December
1994, the Bridgeton facility was staffed entirely by employees trans-
ferred from the existing Hall Street (St. Louis) facility. Overnite's pri-
mary objection to the ALJ's finding of majority status at Bridgeton
relates to whether authorization cards signed by former Hall Street
employees, prior to their transfer, remained valid as to the emerging
bargaining unit at Bridgeton.
The Board was entirely justified, on the record presented, in adopt-
ing the ALJ's finding "that the cards authorize the Union to represent
the employees at Bridgeton." Id. As the ALJ observed:
In the circumstances of this proceeding, [the cards] did not
limit the Union to represent them only at Hall Street, espe-
cially because they were soon to transfer to the new service
center. As a result, I reject Overnite's contention and will
count the cards that were dated prior to the opening of the
Bridgeton service center.
Id. Overnite contends that the ALJ erred in regarding as valid those
authorization cards signed by former Hall Street employees prior to
November 30, 1994 -- the date on which transfer assignments for the
new Bridgeton terminal were posted. Since these employees did not
know for certain that they would be transferred to the Bridgeton facil-
ity, Overnite insists that they could not have intended to authorize
representation at Bridgeton. The company maintains that its employ-
ees' support of Union representation at Hall Street might have been
based upon conditions peculiar to that facility, e.g., concerns about
dioxin contamination.
We find Overnite's contentions unavailing. While the Bridgeton
employees who signed authorization cards prior to November 30,
1994, may not yet have received confirmation of their transfer, they
had demonstrated clear interest in Union representation. Overnite
would have us reject those authorization cards simply because the
employees did not specify their will to be represented at both service
centers. The cases proffered by Overnite do not compel that position,
26
and we see no reason to adopt it.10
10 Given the prominence of wage and
benefit considerations in unionization decisions, we are loath to pre-
sume that employees who supported union representation at Hall
Street would prefer to be unrepresented at Bridgeton. As the ALJ
observed, "[e]xcept for the location and identity of supervision, noth-
ing changed. The employees continued to perform the same work for
the same employer with the same pay and benefits." Id. In our view,
it was reasonable, and consistent with the Act, for the Board to adopt
the ALJ's decision to count those cards signed prior to November 30,
1994, "even though [the employees] signed while not formally
employed at the new facility." Id.
C.
Both the Board and the ALJ, presented with evidence establishing
that the Union enjoyed majority support at each of the four relevant
service centers, were further justified in concluding that Overnite's
pervasive misconduct -- nationally and locally-- warranted Gissel
orders for those four service centers.
1.
Specifically, the Board emphasized several "hallmark violations"
committed by Overnite, practices so coercive that their very existence
will support the issuance of a bargaining order unless some significant
mitigating circumstance exists.1111See
11 So-Lo Foods, 985 F.2d at 126
_________________________________________________________________
10 Citing Koons Ford of Annapolis, Inc., 282 N.L.R.B. 506, 517 (1986),
Overnite contends that "even if card signers knew that transfer was `pos-
sible' -- and no card signers testified to that-- Board law requires more
than a `possibility.'" Koons, which addresses the validity of authorization
cards signed by job applicants, is inapposite. The Bridgeton employees
who signed cards prior to their transfer were personally invested in the
company and its unionization status. Their situation is distinctly different
than that of job applicants who have not been hired and whose knowl-
edge of the terms and conditions of employment is extremely limited.
11 The Board regarded as "hallmark violations" Overnite's "granting of
an unprecedented wage increase, as well as threats that employees would
lose their jobs and that the business would be closed if the employees
selected the Union." Overnite, 329 N.L.R.B. No. 91 at 2.
27
(quoting NLRB v. Jamaica Towing, 632 F.2d 208, 212-13 (2d Cir.
1980)). Where hallmark violations have been committed, the serious-
ness of the conduct justifies a finding -- without extensive explica-
tion -- that the conduct is likely to have a lasting inhibitive effect on
union elections. Id.
Although the presence of hallmark violations will presumptively
support a Gissel order, the "mere presence of such a violation . . .
does not automatically preclude a fair second election or mandate the
issuance of a bargaining order." So-Lo Foods , 985 F.2d at 127 n.5
(quoting J.J. Newberry Co. v. NLRB, 645 F.2d 148, 153 (2d Cir.
1981)). In such instances, the Board must still scrutinize the specific
misconduct in order to ascertain the potential for a free and uncoerced
election. See id.
Here, the Board found the Gissel orders justified by Overnite's
"highly coercive `carrot and stick' campaign," through which Over-
nite granted selective wage increases to its unrepresented employees,
while communicating the futility of union negotiations and threats of
plant closures. Overnite, 329 N.L.R.B. No. 91 at 3. As the Board
recounted Overnite's wage manipulations:
[I]n March 1995, at the height of the organizational effort,
Overnite unlawfully granted its unrepresented employees an
unprecedented wage increase, just months after the employ-
ees had received their normal (January) increase. . . . At
approximately the same time that [Overnite] was illegally
rewarding its unrepresented employees, [Overnite] pro-
claimed in the company newsletter that "unfortunately"
employees at the "four certified centers" where the Union
had recently won Board elections "will not get these pay
increases," but "will have to wait for negotiations." . . . The
message that [Overnite's] combined actions sent to employ-
ees was unmistakably clear: they could choose to remain
unrepresented and enjoy any pay increase [Overnite] may
grant in the future, or they could vote for union representa-
tion and forego such benefits.
Id. (emphasis added).
28
Although the March 1995 discriminatory wage increase reflected
an especially strong hostility on the part of Overnite to the Union's
organization efforts, it was not an isolated occurrence. Indeed, as the
Board concluded, in granting benefits the following year, Overnite
"again distinguished among its service centers based on their union or
nonunion status." Id. In January 1996, Overnite again unlawfully --
and publicly -- withheld its wage increases from employees at
Union-represented service centers, while distributing flyers blaming
the Union for the lower wages of those bargaining units. See id. at 3.
The Board characterized Overnite's tactics crisply:"[T]he message
was clear: company wide wage increases would not be granted to
employees who voted for the Union." Id.
While Overnite does not deny granting wage increases to its unrep-
resented employees in March 1995 and January 1996-- and conspic-
uously withholding the same from its represented employees -- it
objects to the Board's evaluation of this conduct. These wage
increases, Overnite insists, were not unlawful and were not intended
to discourage Union representation efforts, nor were they particularly
coercive in their actual impact. In this vein, Overnite objected to the
ALJ's refusal to hear the testimony of its proposed expert witness.
Had he been allowed to testify, the witness would have presented evi-
dence purporting to demonstrate empirically that-- contrary to the
"fist inside the velvet glove" premise espoused by the Supreme Court
in NLRB v. Exchange Parts, 375 U.S. 405, 409 (1964) -- unlawful
compensation increases do not cause unions to lose elections they oth-
erwise would win.
2.
Relying on the decision in Skyline Distributors v. NLRB, 99 F.3d
403 (D.C. Cir. 1996), Overnite further asserts that an increase in ben-
efits should rarely serve as the primary basis for issuance of a Gissel
order. While a unilateral and discriminatory wage increase undeniably
constitutes an unfair labor practice in violation of section 8(a)(1) of
the Act, Skyline suggests that traditional remedies should not be pre-
sumed inadequate to address the effect of such an unlawful practice
on union representation. See 99 F.3d at 411-12. In essence, Skyline
takes up Overnite's challenge to the validity of the Supreme Court's
Exchange Parts decision, and it proceeds to reject the premise that a
29
unilateral wage increase may be the sole justification for a Gissel
order.
We recognize that the premise of Exchange Parts has come under
fire, and that some courts -- including the D.C. Circuit in Skyline --
have cast aspersions on its validity as the basis for a Gissel order. We
are unable, however, to subvert either the Supreme Court's decision
in Exchange Parts or the numerous Board decisions founded on its
premise. As Justice Harlan observed, "[e]mployees are not likely to
miss the inference that the source of benefits now conferred is also
the source from which future benefits must flow and which may dry
up if it is not obliged." 375 U.S. at 409. Where, as here, unlawful
wage increases are accompanied by other unlawful practices reflect-
ing anti-union animus, such as threats of job loss and statements about
the futility of Union negotiations, the Board was fully entitled to con-
clude that traditional remedies would be insufficient to ensure fair
elections at the four service centers.
Indeed, the Skyline court expressly recognized that a Gissel order
is properly issued by the Board where "the employer's [unfair labor
practices] combine an economic inducement with negative acts of
reprisal." 99 F.3d at 410; see also St. Francis Fed'n of Nurses &
Health Prof'ls v. NLRB, 729 F.2d 844, 855 (D.C. Cir. 1984) ("The
Board placed particular emphasis on the unlawful wage increase
because it affected all employees, but it also relied upon the whole lit-
any of unfair labor practices that characterized the Hospital's anti-
Union campaign -- interrogations, threats, and promises of bene-
fits."). Given Overnite's additional violations-- in particular, its
repeated narration of the Union's frustrated negotiations in Chicago
-- Skyline's skeptical view of the impact of wage increases lacks per-
suasive force.
3.
Overnite included its Lawrenceville, Louisville, Norfolk, and
Bridgeton service centers in its national campaign of promises and
threats. It also committed a number of additional unfair labor prac-
tices at each of those four locations.
As the Board found, Overnite conducted a carrot and stick cam-
paign at those facilities by repeatedly soliciting employee grievances
30
with express or implied promises to remedy them. Overnite also con-
sistently reminded employees that unionized employees would not
receive the March increase, but would instead have to wait for negoti-
ations. The frustrated negotiations in Chicago were repeatedly
invoked to remind employees of Overnite's aversion to union con-
tracts.
The additional violations were numerous and pervasive. At one or
more of the four service centers, company officials or supervisors
threatened variously that unionization would cause Overnite to lose
customers, go out of business and "shut the doors," and jeopardize
"jobs, . . . benefits, and everything." Overnite further threatened loss
of benefits, stricter discipline and work rules, and more onerous work-
ing conditions. Concurrently, Overnite was cracking down on its
employees' Union activities at the four locations by unlawful threats
of retaliation and loss of credibility, unlawful surveillance of Union
activities and impressions of surveillance, stifling of conversations
involving pro-Union employees, and unlawful restrictions on the use
of bulletin boards.
We conclude that there is substantial evidence to support the
Board's determination that the Union's majority status at the four
contested bargaining units was dissipated by Overnite's pervasive
unfair labor practices. To be "pervasive," an employer's unfair labor
practices must "be felt throughout all, or virtually all, of the bargain-
ing unit." Be-Lo, 126 F.3d at 280. In our Be-Lo decision, we regarded
an employer's practices as not pervasive, primarily because less than
six percent of Be-Lo's workforce was directly affected by the viola-
tions. 126 F.3d at 281. In sharp contrast, Overnite's nationwide, pub-
licized, and repeated violations were felt throughout virtually all of
the employer's operations. As the Board found in its Order, "[a]ll
bargaining unit employees were directly affected by[Overnite's] mis-
conduct." Overnite, 329 N.L.R.B. No. 91 at 3 (emphasis added).
D.
1.
Although there is no question that Overnite was guilty of a litany
of serious and pervasive misconduct and continuing violations of the
31
Act, the issuance of a Category II bargaining order requires the Board
to go beyond a mere finding that the employer engaged in unfair labor
practices. The Board must also make specific findings as to the "im-
mediate and residual impact of the unfair labor practices on the elec-
tion process." Appletree I, 608 F.2d at 997 (citations and internal
quotations omitted). The Board is to undertake "a detailed analysis"
assessing the possibility of holding a fair election in terms of any con-
tinuing effect of misconduct, the likelihood of recurring misconduct,
and the potential effectiveness of ordinary remedies. Id. "Even if the
incidents of impermissible conduct are pervasive and erode a union's
majority status, the Board must still carefully analyze, in record find-
ings, the `continuing impact' of those violations." Be-Lo, 126 F.3d at
281.
In this regard, Overnite asserts, relying on our decision in Be-Lo,
that the passage of four years, coupled with the departure of forty per-
cent of its employees and high turnover in the company's manage-
ment, combined to diminish the continuing impact of its unfair labor
practices. Overnite insists that the Board erred in refusing to consider
these factors as controlling evidence for a determination that fair elec-
tions are still possible.
2.
We must reject Overnite's contentions. We conclude that there is
substantial evidence in this record supporting the Board's determina-
tion that the time lapse between the violations and the remedy did not
militate against issuing the Gissel orders. The Board accurately
observed that the four-year lapse did "not approach the time found to
render the Gissel orders stale in some cases." Overnite, 329 N.L.R.B.
No. 91 at 6. Given the size and complexity of the underlying proceed-
ings, one must expect -- and accommodate -- the"ordinary institu-
tional time lapse . . . inherent in the legal process." Id. (quoting
Intersweet, Inc. v. NLRB, 125 F.3d 1064, 1068 (7th Cir. 1997)). It is
true that, in some situations, a four year lapse may be entirely suffi-
cient to permit a fair election. See, e.g., Be-Lo, 126 F.3d at 282 ("It
strains credulity to believe that Be-Lo's unfair labor practices, such
as they were, had such long-lasting effects that a fair rerun election
could not have been held four years later."). However, in light of the
severe and pervasive nature of the violations found to have been com-
32
mitted by Overnite in this case, the Board did not err on this point.
We will not disturb the Board's careful determination that the circum-
stances "fully warrant[ed] the issuance of bargaining orders as a nec-
essary and appropriate means of effectuating the policies of the Act."
Overnite, 329 N.L.R.B. No. 91 at 6.
3.
We are similarly convinced that the Board did not err in concluding
that Overnite's unfair labor practices had a "continuing impact" on the
four service centers, notwithstanding that some employee turnover
had occurred. In its Order, the Board emphasized its policy of assess-
ing the situation at the time the unfair labor practices were committed,
rather than considering personnel shifts that followed the misconduct.
Id. "Otherwise," the Board reasoned,"the employer that has commit-
ted unfair labor practices of sufficient gravity to warrant the issuance
of a bargaining order would be allowed to benefit from the effects of
its wrongdoing." Id.
Although Overnite claims that the Board's position in this case dif-
fers from the approach we endorsed in Be-Lo, 126 F.3d at 282, the
facts underlying the two cases are easily distinguishable. In Be-Lo,
there was a turnover rate of over sixty-six percent, see id. at 283,
whereas, in this case, the majority of employees exposed to Over-
nite's violations remain at the company and would recall those events.
Overnite, 329 N.L.R.B. No. 91 at 5. Moreover, while employee turn-
over is among the factors to be considered, it is by no means disposi-
tive of the "continuing impact" inquiry. It is, instead, "just one more
factor . . . that militates against the substitution of a Gissel order for
the more desirable means of ascertaining employee preferences
embodied in a representation election." NLRB v. Apple Tree Chevro-
let, Inc., 671 F.2d 838, 842 (4th Cir. 1982) (Apple Tree II). Where,
as here, severe and pervasive unfair labor practices linger in the mem-
ories of the majority of Overnite's current employees, the company's
attribution of error to the Board is misplaced.
4.
Finally, Overnite points to Union victories in 1996 and 1997 at
three other facilities -- Toledo, Memphis, and Cincinnati -- as evi-
33
dence that free and fair elections were a possibility, thus negating the
need for the Board to issue its Gissel orders. In effect, Overnite argues
that the Union's election victories in some bargaining units under-
mines the Board's determination that the company's unfair labor
practices would have a continuing impact on the Union's representa-
tion efforts elsewhere. The Board maintains, conversely, that the
Union's ability to prevail in three isolated elections does not imply
that a free and fair election could occur at the four service centers at
issue in this case. In the Board's view, circumstances may exist that
would allow the Union to be particularly robust in some bargaining
units, even though Overnite's unfair labor practices would consis-
tently tend to inhibit the Union's support.
Again, it is the Board's position that "[i]t is the objective tendency
of the unfair labor practices to undermine union support that is criti-
cal, not the actual effect of the unfair labor practices." Overnite, 329
N.L.R.B. No. 91 at 6 n.26. Citing this principle approvingly, the ALJ
stated that "evaluating the situation as of the time of the commission
of the unfair labor practices appears better than lengthy, additional
hearings to determine employees' subjective states of mind." Id. at 63.
We are persuaded that there is substantial evidence to support the
Board's issuance of Gissel orders at each of the four contested service
centers. The propriety of those orders is not impugned by several
anomalous Union successes elsewhere. Although the issuance of Gis-
sel orders in this case is supported by Overnite's pervasive national
and unit-specific violations, the choice of remedy is a matter pecu-
liarly suited for the Board, largely dependent on unit-specific condi-
tions. The Board could reasonably conclude that Overnite's unlawful
conduct would have a "continuing impact," warranting issuance of
Gissel orders at Lawrenceville, Louisville, Norfolk, and Bridgeton.
On the other hand, conditions at service centers where the Union
eventually won elections differed in material respects from conditions
at the Gissel locations, which allowed Union support to withstand the
erosive effects of Overnite's unlawful conduct. That the Union was
able to survive Overnite's unfair labor practices-- and its nationwide
anti-union animus -- at selected locations does not detract from the
Board's finding that such practices have an objective tendency to
undermine Union support.
34
IV.
The Supreme Court in Gissel articulated the role of bargaining
orders in remedying past election damage, as well as deterring future
misconduct. See 395 U.S. at 612. As Justice Harlan observed:
If an employer has succeeded in undermining a union's
strength and destroying the laboratory conditions necessary
for a fair election, he may see no need to violate a cease-
and-desist order by further unlawful activity. The damage
will have been done, and perhaps the only fair way to effec-
tuate employee rights is to re-establish the conditions as
they existed before the employer's unlawful campaign.
Id.
This proceeding presents just such a scenario. Faced with Over-
nite's egregious violations of the Act, the ALJ and the Board con-
cluded that the Category II elements were satisfied at the four
contested service centers. The Union had, in each instance, enjoyed
pre-election majority status which had been dissipated by Overnite's
pervasive misconduct. Because such misconduct left only a slight
possibility of ensuring fair elections, the Board determined that
employee sentiment would, on balance, be better protected by issu-
ance of Gissel orders. Informed as it was by the Board's unique
expertise and by the exhaustive findings of the ALJ, we find the
Board's Order supported by substantial evidence, and we decline to
disturb it. The petition of Overnite accordingly will be denied, and the
Board's cross-application will be granted.
PETITION FOR REVIEW DENIED AND
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
NIEMEYER, Circuit Judge, dissenting:
In representation elections at all four of the Overnite Transporta-
tion Company work sites that have been made the subject of this case
-- Lawrenceville, Georgia; Louisville, Kentucky; Norfolk, Virginia;
and Bridgeton, Missouri -- the Union lost. Finding that the outcomes
35
of these elections were affected by unfair labor practices, the National
Labor Relations Board, instead of ordering new elections, issued "cat-
egory II" Gissel orders, as authorized by NLRB v. Gissel Packing Co.,
395 U.S. 575, 613-14 (1969), directing Overnite to bargain with the
Union despite the fact that: (1) the elections had taken place over four
years before; (2) approximately 40% of Overnite's workforce had
since left its employ; and (3) the Board had certified as fair the elec-
tions during the same period at numerous other sites.1 1 Explaining why
bargaining orders, instead of new elections, were necessary, the Board
stated, "it is difficult to believe that the impression made by [Over-
nite's] barrage of serious unlawful conduct . . . could have dissipated
in the minds of those employees . . . and that the virulence of [Over-
nite's] response to the previous election campaign would not restrain
employee free choice in second elections." J.A. 1613.
On review of the Board's order, the majority opinion, rather than
reviewing the order against the standards applicable in this circuit for
review of Gissel orders, see Be-Lo Stores v. NLRB, 126 F.3d 268 (4th
Cir. 1997); NLRB v. Appletree Chevrolet, Inc. , 608 F.2d 988 (4th Cir.
1979) ("Appletree I"), merely reiterated, in expanded form, the
Board's position, concluding that it agrees with the Board. Unfortu-
nately, in adopting this approach, the majority has denied Overnite the
review to which it is entitled under our precedent. When measured
against our precedent, it becomes readily apparent that the Board
could not justify, on this record, its determination to issue mandatory
bargaining orders in lieu of ordering new elections. See Be-Lo, 126
F.3d at 274-75.
I
It is the strong preference of our national labor policy not to impose
collective bargaining representatives on employees except when they
have, by a majority vote, elected to be so represented. See NLRB v.
Apple Tree Chevrolet, Inc., 671 F.2d 838, 840 (4th Cir. 1982) ("Apple
_________________________________________________________________
1 The General Counsel had sought Gissel bargaining orders at 17 loca-
tions where the Union had lost representation elections, but a settlement
resolved most of the disputes. The General Counsel dismissed three or
four other complaints because the Union concluded it could win new
elections at those sites.
36
Tree II"). Because "an election, not a bargaining order, remains the
traditional, as well as the preferred, method for determining the bar-
gaining agent for employees," Appletree I, 608 F.2d at 996, "the
extraordinary and drastic remedy of forced bargaining pursuant to
[Gissel] is reserved for only the most unusual cases." Be-Lo, 126 F.2d
at 273 (internal quotation marks and citations omitted). We have con-
cluded that in this disfavored situation -- where an employer is
directed to bargain without the benefit of an election -- the Board
must "support its order with detailed record evidence" and not with
the recitation of "conclusions by rote without factual explanation." Id.
(quoting Appletree I, 608 F.2d at 997). Thus, "[w]hile we accord the
Board respect as to its choice of remedies because of its presumed
expertise, we exercise less deference and require scrupulous specific-
ity from the Board when it issues mandatory bargaining orders on the
authority of [Gissel]." Id. at 274 (internal quotation marks and cita-
tions omitted).
II
In this case, the Board did not, and could not on the evidence in
the record, fulfill the requirements for scrupulous specificity
demanded by our precedents. Indeed, if its analysis had been com-
plete, it would have had to come to terms with the fact that Overnite's
national policies could not have supported Gissel orders at four loca-
tions when elections were certified as fair at numerous other loca-
tions. A few examples of the Board's analysis amply demonstrate its
lack of specificity.
It is to be recalled that the elections took place in the spring of
1995. The relevant misconduct took place in that time frame, as well
as during Overnite's introduction of a national wage and benefits
increase in the spring of 1996. Because several years passed before
the Board issued its order directing Overnite to bargain with the
Union, the Board was required to "make a detailed analysis assessing
the possibility of holding a fair election in terms of any continuing
effect of misconduct, and the potential effectiveness of ordinary reme-
dies." Appletree I, 608 F.2d at 997 (internal quotation marks and cita-
tions omitted). We noted in Be-Lo that "the adverse effects of all but
the most egregious unfair labor practices become dissipated with the
passage of time," 126 F.3d at 282 (internal quotation marks and cita-
37
tions omitted), and that the alternative remedy of a new election is
much preferred, id. at 274. In this case, the Board could not have
found, and did not find, the misconduct so "egregious" as to justify
a "category I" Gissel order. It likewise could not and did not conduct
the detailed analysis required for a "category II" order. Rather, it dis-
missed any such requirement with the simple conclusion that it had
"considered the inadequacy of other remedies." J.A. 1615; see also
J.A. 1614 (containing the Board's comment, without demanding
direct evidence, that the passage of time in this case was shorter than
that found in other cases to render a Gissel order "stale").
In the same vein, despite our instruction that the Board "carefully
analyze, in record findings, the continuing impact" of the 1995-96
violations, Be-Lo, 126 F.3d at 281 (internal quotation marks and cita-
tions omitted), the Board could not make such findings on this record
where such evidence is lacking. Consequently, the Board simply
observed as a matter of logic that the wage increases of 1995 and
1996 "regularly appear in employees' pay checks," and constitute "a
continuing reminder that `the source of benefits now conferred is also
the source from which future benefits must flow and which may dry
up if not obliged.'" J.A. 1611 (quoting NLRB v. Exchange Parts Co.,
375 U.S. 405, 409 (1964)). It does not explain how these wage
increases could affect some locations -- the four in question here --
but not others where it approved elections in favor of the Union.
Again, on employee turnover, the Board ignored the law of this cir-
cuit. In Be-Lo we noted "that significant employee turnover through
normal attrition is highly relevant to determining the necessity of a
bargaining order and well may make a bargaining order inappropri-
ate." 126 F.3d at 282 (internal quotation marks and citations omitted).
We explained that when former employees have moved on and new
workers have been hired, the issuance of a bargaining order "risks
unjustly binding new employees to the choices made by former ones."
Id. at 282-83 (quoting J.L.M., Inc. v. NLRB , 31 F.3d 79, 84 (2d Cir.
1994)). Notwithstanding this state of the law in our circuit, the Board
declined to open the record for Overnite's proffered evidence of an
employee turnover of approximately 40%. The Board stated that it
"traditionally does not consider turnover among bargaining unit
employees in determining whether a bargaining order is appropriate."
J.A. 1613. It went on to rationalize its decision by concluding gener-
38
ally, again without factual support in the record, that the 60% of the
employees who still worked for Overnite would continue to recall the
misconduct and "new employees may well be affected by the continu-
ing influence of [Overnite's] past unfair labor practices." J.A. 1613.2
2
Finally, the Board relied on precedent that we have rejected. We
have noted that "[a]bsent substantial evidentiary support that the
effects of unlawful practices have in fact continued to be felt in the
workplace, we believe that such inferences as to the likely effect of
`lore of the shop' have no place in the calculus of whether a manda-
tory bargaining order is warranted." Be-Lo , 126 F.3d at 283. Despite
this ruling, the Board has chosen to follow a contrary Fifth Circuit
case, Bandag, Inc. v. NLRB, 583 F.2d 765, 772 (5th Cir. 1978), in
which that court indicated that "[p]ractices may live on in the lore of
the shop and continue to repress employee sentiment long after most,
or even all, original participants have departed." The Board relied on
this case without even citing the Fourth Circuit's Be-Lo decision,
which governed. J.A. 1613.
In short, the Board has explicitly rejected material requirements
that we have imposed for issuing Gissel orders in this circuit, and the
majority opinion in this case, unfortunately, has not only approved,
sub silentio, the Board's approach, it has parroted the Board's conclu-
sory statements in order to affirm.
III
Because Gissel bargaining orders bypass the democratic process,
the approval of such drastic orders without satisfying ourselves that
new elections could not remedy the unfair labor practices found by
the Board leads to an undermining of a fundamental labor law policy
of democratic representation. For these reasons I would grant Over-
_________________________________________________________________
2 This generalized statement makes little sense when it is recognized
that during the Union's organizing effort, it won eight elections and
agreed to dismissal of several of the General Counsel's other Gissel
cases because it believed it could win elections at those sites. It won
three of four elections in those cases, and at the fourth, where the Union
lost by two votes, the Board certified the election as fair.
39
nite's petition for review and deny the Board's cross-petition for
enforcement. Accordingly, I respectfully dissent.
40