NLRB v. Complete Carrier ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
No. 98-2506
COMPLETE CARRIER SERVICES,
INCORPORATED,
Respondent.
On Application for Enforcement of an Order
of the National Labor Relations Board.
(5-CA-26085, 5-RC-14305)
Submitted: July 20, 1999
Decided: August 10, 1999
Before HAMILTON and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Petition granted by unpublished per curiam opinion.
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COUNSEL
Frederick L. Feinstein, General Counsel, Linda Sher, Associate Gen-
eral Counsel, John D. Burgoyne, Acting Deputy Associate General
Counsel, David Habenstreit, Preston L. Pugh, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Petitioner. Charles E.
Sykes, Judith Batson Sadler, BRUCKNER & SYKES, L.L.P., Hous-
ton, Texas, for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In this case the National Labor Relations Board ("Board") petitions
for enforcement of its bargaining order issued against Respondent
Complete Carrier Services, Inc. ("Carrier"). The order is the result of
a charge by Teamsters Local 311 that Carrier, which leases drivers to
freight transportation firms, committed unfair labor practices at its
Baltimore, Maryland terminal, which invalidated an election held in
March 1996 to determine the Union's authority to bargain on behalf
of the drivers. The Board held that Carrier engaged in numerous
unfair labor practices shortly before the election, including threaten-
ing employees with job loss and reprisals, soliciting grievances,
promising and granting pay raises and other benefits, and threatening
plant closure if the Union won the election, which it found dissipated
the Union majority reflected only a few months earlier through autho-
rization cards signed by nine of ten drivers comprising the bargaining
unit. It further found Carrier's misconduct sufficiently serious and
pervasive that traditional remedies such as a new election would not
cure the violations, and therefore issued a mandatory bargaining
order.
On appeal, Carrier challenges the Board's finding of a pre-election
Union majority. Further, it contends that the Administrative Law
Judge ("ALJ") who conducted a hearing on this matter committed
error in making an evidentiary ruling at the hearing. Finally, Carrier
argues that the Board failed to sufficiently support its decision to
issue a mandatory bargaining order rather than impose a more tradi-
tional remedy such as a new election.
While we generally accept Board findings that are supported by
substantial evidence, see Monongahela Power Co. v. NLRB, 657 F.2d
608, 611 (4th Cir. 1981), we review the Board's selection of remedies
for an abuse of discretion. See NLRB v. Williams Enters., 50 F.3d
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1280, 1289 (4th Cir. 1995). In the context of mandatory bargaining
orders issued by the Board pursuant to NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969), however, we accord the Board"less deference."
See Be-Lo Stores v. NLRB, 126 F.3d 268, 274 (4th Cir. 1997). The
applicable tests for determining the propriety of a mandatory bargain-
ing order differ depending largely on the egregiousness of the
employer's misconduct. The most stringent test requires Board find-
ings: (1) that the union once had majority status; (2) that employer's
misconduct dissipated such status; (3) that there is only slight possi-
bility of erasing the effects of these practices and ensuring a fair elec-
tion; and (4) that employee sentiment would, on balance, be better
protected by a bargaining order. Id. at 274-75.
In this case, prior to the election, a Carrier employee, Victor
Paniagua, distributed authorization cards to the drivers at the Balti-
more terminal. Nine of ten of the drivers who received cards autho-
rized the Union to act as their exclusive bargaining agent. On appeal,
Carrier argues that the cards were invalid because, among other
things, Paniagua was not a statutory employee who was part of the
bargaining unit but rather was more appropriately viewed as either
Carrier's agent, a confidential employee, or a supervisor. Carrier's
argument flows from the fact that at the time he solicited the cards,
Paniagua was not working as a driver but as an office employee
because a workers' compensation injury had temporarily restricted
him to light duty. Substantial evidence, however, firmly supports the
ALJ's finding that Paniagua was a truck driver who was a member
of the bargaining unit. He was an experienced driver indisputably
hired by Carrier to be a driver who was injured while in training to
be a permanent driver. Moreover, he eventually did return to work as
a driver. Carrier's contentions to the contrary are without merit.
Carrier also asserts that the cards were tainted because they were
misleading to the drivers. While there is no dispute that the cards ref-
erenced both Carrier and the company to which the drivers were
leased as employers, we cannot conclude that confusion over which
company should have been listed as the drivers' employer on the
cards undermines employee sentiment in favor of Union representa-
tion. Further, while the record indicates that a few drivers were told
that there would be an election, it does not support Carrier's conten-
tion that the drivers were misled to believe that the cards served the
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sole purpose of obtaining an election.* We therefore reject Carrier's
claims that the authorization cards were invalid, and conclude that the
Board properly found that the Union enjoyed majority status prior to
the election.
Next, we find that Carrier fails to demonstrate any prejudice result-
ing from the ALJ's allegedly erroneous refusal to reopen the record
to permit Carrier to respond to evidence presented by the Board bear-
ing on Carrier's past practices concerning pay increases. Carrier's
award of a retroactive pay increase to employees shortly before the
election was only one of numerous unfair labor practices found by the
Board. Moreover, it was both the timing of the raises and comments
made by Carrier's owner concerning the raises to employees that led
the Board to conclude that the pay increase was unlawfully motivated.
Substantial evidence also supports the Board's finding that Carri-
er's misconduct eroded support for the Union. Only two drivers
unequivocally supported the Union in the election, whereas, less than
three months earlier, nine of ten did. Carrier nonetheless contends that
a remedy other than a mandatory bargaining order, such as a new
election, was more appropriate in this case. We disagree. Carrier's
misconduct was outrageous and pervasive. The Board could reason-
ably conclude that a new election would not erase the effects of this
misconduct, particularly in light of the fact that many of the violations
were committed by the owner of the company and every employee in
the bargaining unit was subjected to the misconduct. Moreover, given
that the Union's majority was overwhelming prior to the misconduct,
the Board also reasonably found that employee sentiment was best
protected by a bargaining order.
We note Carrier's contention that a bargaining order is inappropri-
ate because it no longer employs the Baltimore drivers. We have pre-
viously found that the sale of a company, found to be subject to a
mandatory bargaining order, to an unrelated facility does not bar
enforcement of the order where, as in this case, the order extends to
the offending company's successors. See NLRB v. Honaker Mills,
Div. of Top Form Mills, 789 F.2d 262, 268 (4th Cir. 1986). Moreover,
_________________________________________________________________
*It is undisputed that the cards authorized the Union to act as the driv-
ers' exclusive bargaining agent in unequivocal language.
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as the Board points out in its brief, there is no guarantee that Carrier
will not reacquire control over the relevant employees at some point
in the future.
Accordingly, the Board's petition for enforcement is granted. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
PETITION GRANTED
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