Fieldcrest Cannon v. NLRB , 97 F.3d 65 ( 1996 )

CORRECTED OPINION
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FIELDCREST CANNON, INCORPORATED,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
No. 95-2658
Respondent,
UNION OF NEEDLETRADES, INDUSTRIAL
AND TEXTILE EMPLOYEES, AFL-CIO,
CLC,
Intervenor.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 95-2829
FIELDCREST CANNON, INCORPORATED,
Respondent.
On Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board.
(11-CA-14494, 11-CA-14584, 11-CA-14643, 11-CA-14723,
11-CA-14730, 11-CA-14735, 11-CA-14771, 11-CA-14815,
11-CA-15006, 11-RC-5776)
Argued: May 8, 1996
Decided: September 26, 1996
Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL,
Circuit Judges.
Enforcement granted in part and denied in part by published opinion.
Chief Judge Wilkinson announced the judgment of the court and
wrote the majority opinion in parts I through IV, in which Judge
Michael joined. Judge Luttig joined in the judgment denying enforce-
ment of the salary differential aspect of the Board's order. Chief
Judge Wilkinson wrote a concurring opinion. Judge Luttig wrote an
opinion dissenting in part. Judge Michael wrote an opinion concurring
in part and dissenting in part.
_________________________________________________________________
COUNSEL
ARGUED: Charles Preyer Roberts, III, HAYNSWORTH,
BALDWIN, JOHNSON & GREAVES, Greensboro, North Carolina,
for Fieldcrest. John Harlan Fawley, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for NLRB. David Malcolm
Prouty, UNION OF NEEDLETRADES, INDUSTRIAL AND TEX-
TILE EMPLOYEES, AFL-CIO, CLC, New York, New York, for
Intervenor. ON BRIEF: Frederick L. Feinstein, General Counsel,
Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, Howard E. Perlstein, Deputy Assistant
General Counsel, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for NLRB. Jonathan R. Harkavy, PATTERSON,
HARKAVY & LAWRENCE, Greensboro, North Carolina, for Inter-
venor.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
The National Labor Relations Board found that Fieldcrest Cannon,
Inc. had committed more than 100 violations of the National Labor
Relations Act during a union organization campaign at its facilities in
Cabarrus and Rowan Counties, North Carolina. Fieldcrest offers three
responses to these findings: (1) that the ALJ's credibility determina-
tions were biased in favor of the union; (2) that the Board's findings
on the various violations were not supported by substantial evidence;
and (3) that a portion of the Board's remedy, which required Field-
2
crest to offer union employees the same pay raise given to non-union
employees, exceeded the Board's power. We agree with the Board
that substantial evidence supports the great majority of violations
found here and we reject the company's claims that the agency pro-
ceedings were impermissibly biased. We agree with Fieldcrest, how-
ever, that the discharges of Ronald Pharr, Earl White, and Cathy
Thompson did not run afoul of the Act. We also agree with Fieldcrest
that the Board was without authority to alter the salary increase
agreed to by Fieldcrest and the union during collective bargaining.
For these reasons, we enforce the Board's order in part and deny
enforcement in part.
I.
Fieldcrest manufactures linens at both union and non-union plants
throughout the southeastern United States. In 1986, Fieldcrest pur-
chased Cannon Mills, a major competitor with 11,000 non-union
employees located in Cabarrus and Rowan Counties, North Carolina.
On June 12, 1991, the Amalgamated Clothing and Textiles Workers
Union sought to organize 6000 employees at these facilities.
The election campaign was hotly contested, and Fieldcrest took an
aggressive approach to convincing employees to vote against the
union. Fieldcrest's campaign literature was graphic. One flier showed
a mushroom cloud and the words: "There's more than one way to
destroy a community. VOTE NO." Another showed a closed mill
with the words: "The plant was unionized by ACTWU. The plant was
closed for economic reasons in 1985." Yet another showed workers
standing outside a gate near a sign that said "closed." Its caption read:
"In the past decade, scores of textile plants have closed in North Caro-
lina. Thousands of workers have lost their jobs . . . Vote NO union."
Over the course of the campaign and in its aftermath, union sup-
porters suffered numerous incidents of hostility. There were unlawful
interrogations, such as when supervisors Reganna Earwood and Ruth
Blalock brought Reginald Turner into an office and questioned his
support for the union. They suggested that he change his mind by
signing a card, which would withdraw his support from the union.
When Turner hesitated, he was told that he already had "two points
3
against him" and that failure to sign the card would put him "right out
the door."
There were also threats of reprisal if employees voted for the
union, such as supervisor James Allman's statement that Fieldcrest
would move to Mexico if the union prevailed, supervisor Windy
Black's assertion that the union's activity would postpone a scheduled
pay raise, and supervisor Ted Godfrey's warning that Fieldcrest
would strictly enforce its rules if the union prevailed. The threats also
appeared on fliers. One Spanish language flier warned: "If you sign
the [union card] and the Government finds out about it, you will be
deported or sent to prison."
Employees who supported the union were harassed. While Field-
crest supervisors Tammy Fox, Eddie Gurley, and Diane Neely distrib-
uted pro-company literature during employees' working time,
employees who distributed union literature had their literature seized
and were admonished that they could lose their jobs. Supervisors also
sought to intimidate union activists by monitoring their work and per-
sonal activities though they had not been monitored before the cam-
paign and non-union workers were not so monitored. For example,
after the union campaign started, supervisor Perry Harkey tracked
union activist Tony Bumgarner "every hour on the hour, watch in his
hand." After Terry Smothers' wife wrote a pro-union op-ed piece for
the local newspaper, Smothers' movements were restricted to one
floor so that his activities could be monitored. Before his wife's
column was published, Smothers freely assisted technicians through-
out two floors. Conspicuously, when the union campaign ended,
Smothers was allowed to return to his usual duties.
Employees were also punished for their union activities. The day
after Sherry Anthony announced her support for the union, she was
prohibited from taking coffee breaks outside of her section. Another
union supporter, Oreida Clarke, lost her responsibilities as a Spanish
language translator because company officials were concerned about
what she might tell Spanish speaking employees. And union supporter
Sylvia Crawford was removed as a tour guide for new employees--
until the union campaign ended.
Ten employees lost their jobs. Elboyd Deal, a 30-year veteran, was
disciplined and discharged for speaking out on behalf of the union
4
and for, in the words of supervisor James O'Kelly, acting as the "ring-
leader" of the organization campaign. At one point, O'Kelly said
bluntly: "You see what your union badge is doing for you, Mr. Deal."
The representation election was held on August 20 and 21, 1991.
The final tally showed 3443 votes for the company, 3053 votes for the
union, and 307 unresolved challenged ballots. Upon losing the elec-
tion, the union alleged that the company unlawfully discriminated
against 20 employees and committed approximately 109 violations of
the Act.
On September 9, Fieldcrest implemented a 5.5% wage increase at
its non-union plants. On September 17, Fieldcrest and the union
entered into collective bargaining to discuss wages and benefits at the
unionized facilities. Fieldcrest initially proposed a 4% wage increase
while the union sought a 6% increase. By September 27, Fieldcrest's
offer stood at 4.25% and the union's counteroffer at 5.5%. On
November 4, all benefit issues had been resolved, but the union con-
tinued to claim that its employees were entitled to at least the same
wage increase received by non-union employees. When the parties
met again on January 12, 1992, Fieldcrest increased its offer to 4.5%,
and the union accepted.
The union thereafter brought a complaint under the Act. It claimed
that Fieldcrest violated the Act by its conduct during the organization
campaign, and also by refusing to grant union workers the same wage
increase received by non-union employees. Both claims were consoli-
dated in a single proceeding before an Administrative Law Judge.
Trial began on March 31, 1992 and concluded on January 25, 1993.
The testimony of 256 witnesses extended over 36 days of hearings.
On March 1, 1994, the ALJ issued his opinion. He uniformly found
in favor of the union on issues of credibility and held that Fieldcrest
had engaged in more than 100 unfair labor practices. The Board
affirmed the ALJ's conclusions. It ordered a new election, required
that injured employees be reinstated and made whole, and directed the
company to cease and desist from unfair labor practices. The Board
also ordered Fieldcrest to grant its union employees the same 5.5%
pay raise given to non-union employees and to return to the bargain-
5
ing table over the terms and conditions of employment. Fieldcrest
now appeals.
II.
Fieldcrest lodges various objections to the fact-finding process in
this case, which we shall consider in turn.
A.
Fieldcrest first presents statistical arguments, which it claims prove
that the ALJ's method for determining the credibility of witnesses
was biased. Fieldcrest notes that the ALJ credited all of the general
counsel's witnesses and none of its own; this, it claims, demonstrates
bias. Our review shall not be driven, however, by an overall statistical
balance of whose witnesses received credit and whose did not. To do
so would amount to judging a case by some mechanical formula
rather than the merits of the evidence. After all, such statistics do not
inform us whether "a credibility determination is unreasonable, con-
tradicts other findings of fact, or is `based on an inadequate reason or
no reason at all.'" NLRB v. McCullough Environmental Services, Inc.,
5 F.3d 923, 928 (5th Cir. 1993) (citation omitted).
Fieldcrest also argues that the ALJ's prior record in other cases
indicates a bias in favor of labor unions. Fieldcrest cites statistical evi-
dence showing that this ALJ has ruled against employers on 105 of
108 section 8(a)(3) allegations and on 550 of 589 total allegations.
The Board counters by noting that of the ALJ's prior 79 cases, courts
have reviewed only 16, and of these 16, courts have fully enforced 13.
We will not rate a judge, however, by the percentage of times he or
she rules on a given side of a case. To evaluate an ALJ's impartiality
in this way amounts to judging his record by mere result or reputa-
tion. In reality, such statistics tell us little or nothing. Fieldcrest's
numbers do not tell us whether the ALJ decided individual cases cor-
rectly, and the Board's figures do not tell us why, in 63 cases, the los-
ing party chose not to appeal.
We shall set aside the statistics. Instead, we shall examine the fact-
finding in this case to assess whether the record as a whole supports
6
the ALJ's determinations. A decision-maker's ruling deserves to rise
or fall on the case at hand, not on the results in other cases that have
little bearing upon the issues before us.
B.
We thus turn to the instant case. The credibility determinations that
Fieldcrest challenges here were the product of lengthy and thorough
proceedings during which each party had an ample opportunity to
present its respective position to the ALJ. The testimony occupied 36
days of hearings. There were 83 witnesses presented by the NLRB
general counsel, 154 by Fieldcrest, and 19 by the union. The testi-
mony of these 256 witnesses filled more than 7800 transcript pages.
The ALJ's decision reflects careful consideration of this volumi-
nous testimony. In the ALJ's lengthy, 93-page, single-spaced opinion,
he took pains to spell out each violation, the evidence supporting the
violation, and his reasons for ruling as he did. His examination of one
episode illustrates the care he took. Drenia Smith, an employee,
alleged that her supervisor, Terry Burris, threatened her. The ALJ first
reviewed Drenia Smith's testimony that Burris said that the union
would mean "friendships would be lost, that people would fire bomb
houses, and that there would be strikes and violence," that picket-line
crossers would be beaten, and that "the plant would close down." The
ALJ then summarized Burris' testimony:
Burris agreed that he had a conversation with Drenia Smith
early in the campaign. He agreed that he told Smith that
trouble seemed to follow unions, and that it was possible
that he told her he had seen reports of firebombing and vio-
lence.
Finally, the ALJ analyzed the two witnesses' testimony. He discussed
whether Smith's testimony had been elicited with leading questions,
and determined that it had not. After discussing how Burris' testi-
mony corroborated many of Smith's allegations, the ALJ ultimately
credited Smith's testimony.
The ALJ's review of other testimony was similarly meticulous.
Reviewing courts owe deference to such factual findings, assessing
7
them only to determine whether they are supported by substantial evi-
dence. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-91
(1951). When factual findings rest upon credibility determinations,
they should be accepted by the reviewing court absent "exceptional
circumstances." NLRB v. Air Products & Chemicals, Inc., 717 F.2d
141, 145 (4th Cir. 1983). Exceptional circumstances include cases
where "a credibility determination is unreasonable, contradicts other
findings of fact, or is `based on an inadequate reason or no reason at
all.'" McCullough, 5 F.3d at 928 (citation omitted). Only in such a sit-
uation is a reviewing court "free to review the record and indepen-
dently reach [its] own conclusions." McCullough, 5 F.3d at 928.
Otherwise, careful fact finding, such as that undertaken in this case,
is entitled to respect.
C.
Fieldcrest next contends that the ALJ improperly credited wit-
nesses who testified against Fieldcrest on the basis of their employ-
ment status. Fieldcrest notes that on 55 occasions, the ALJ credited
38 witnesses in this manner. In particular, Fieldcrest objects to the
ALJ's statement that union employees' testimony was entitled to
"considerable weight" in credibility determinations because "it is
unlikely that a current employee will testify falsely against his
employer." In L.S. Ayres v. NLRB, this court rejected such a conclu-
sion, holding that "the fact that a witness is an employee at the time
that he testifies adversely to his employer is at most only a factor
bearing on his credibility and one entitled to little weight." 551 F.2d
586, 588 (4th Cir. 1977) (emphasis added). In Standard-Coosa-
Thatcher Carpet Yarn Div. v. NLRB, we reiterated that "the mere fact
that an employee exposes himself to retaliation by testifying against
his employer has little bearing on credibility." 691 F.2d 1133, 1138
(4th Cir. 1982), cert. denied, 460 U.S. 1083 (1983) (emphasis added).
The reason for the Ayres holding is not difficult to discern. It is just
as likely that an employee testifying against his employer is also testi-
fying in his own self-interest as a union supporter. As the court
pointed out in Ayres, an employee "may be strongly motivated to
establish an employer unfair labor practice." 551 F.2d at 588 n.3.
Employees could be so motivated because of their involvement with
the union. Or they might have been subject to discipline from the
8
company, and the finding of an NLRA violation could potentially
insulate them from any sanction.
While we thus agree with Fieldcrest that the ALJ erred in giving
more than a "little" weight to a witness' status as an employee, that
does not end the Ayres inquiry. As demonstrated in Standard, such an
error does not necessitate denial of enforcement if"the record ade-
quately supports the administrative law judge's credibility determina-
tion." 691 F.2d at 1138. In Standard, the company's witness never
denied mentioning the union in his warning. The court found that the
absence of a direct denial sufficiently supported the ALJ's credibility
determination, despite the ALJ's reliance on the witness' employment
status.
In other cases dealing with questions of credibility, we have also
enforced the Board's orders notwithstanding concerns over the possi-
bility that the ALJ gave more than a "little" weight to the witness' sta-
tus as an employee in determining credibility. See Ayres, 551 F.2d at
588; Air Products, 717 F.2d at 141. In Ayres, this court enforced the
Board's order because "substantial evidence supports at least some of
the findings of violation of § 8(a)(1)." 551 F.2d at 587. We explained
there that "full consideration to the other indicia of credibility should
be given." Id. at 588. In Air Products, we found similarly, holding
that the ALJ sufficiently relied upon other indicia of credibility
including "the absence of direct denials by Employer's witnesses, the
demeanor of the witnesses, [ ] the situation surrounding the election
campaign," and other corroborating testimony. 717 F.2d at 145-46.
All of the other indicia of credibility described in Air Products
were present here. Quite apart from the employment status of those
testifying, there was sufficient evidence for the ALJ to credit the great
majority of the union's witnesses. First, the ALJ repeatedly noted the
absence of direct denials on the part of company witnesses. For
instance, Graciela Whitley testified that supervisor James Allman told
her not to "sign papers for the union" and said that if the union wins,
"we will have to move the company to Mexico." The ALJ noted that
Whitley's testimony was particularly clear. Most importantly though,
Allman did not refute the charges. Whitley's testimony was thus
appropriately credited.
9
On some occasions, the relevant company witness even failed to
take the stand. Oreida Clarke alleged that the company posted a notice
in Spanish threatening workers with deportation if they signed union
cards. Though this allegation was partially credited because of her
employment status, the ALJ also noted that the company's witnesses
who denied posting such a notice did not "include all supervisors who
may have done so." Accordingly, the ALJ concluded that the compa-
ny's "evidence does not directly rebut Clarke's testimony that she saw
the notice."
The testimony of company witnesses also suffered from compara-
tive vagueness. Comparative vagueness was central to the credibility
determination involving current employee Brenda Lyles, who testified
regarding threats of plant closure made by supervisor Howard Hall.
While the ALJ did mention Lyles' employment status, he also com-
pared the witnesses' respective recall. Supervisor Hall could "hardly
remember the conversation," but Lyles offered detailed testimony. As
a result, the ALJ ultimately concluded that Lyles should be credited
because she "had much better recall of this conversation."
Inconsistency was yet another problem for the company's wit-
nesses. For example, supervisor Perry Harkey denied spending addi-
tional time on the floor monitoring employees, yet he simultaneously
admitted that management had ordered him "to be available for
employees' questions." The ALJ noted that because Harkey would
have had to spend more time on the floor to be available for employ-
ees' questions, Harkey's denial that he was spending more time on the
production floor undermined his credibility. Consequently, the ALJ
credited current employee Tony Bumgarner's testimony that Harkey
had monitored union employees.
Absence of denial, comparative vagueness, and internal inconsis-
tency are factors that may legitimately bear on an ALJ's decision to
credit a company or a union witness. Over the course of his opinion,
the ALJ noted that the union witnesses' testimony stood unrebutted
on 34 occasions. Likewise, the ALJ mentioned the inconsistent or
contradictory nature of company testimony at least 20 times.
To a lesser extent, the ALJ also relied on the demeanor of wit-
nesses, another factor bearing on credibility determinations. Air
10
Products, 717 F.2d at 145. The ALJ stated on the first page of his
opinion, "On the basis of . . . my observation of the demeanor of the
witnesses, I make the following findings of fact." While presumably,
every one of the ALJ's credibility determinations hinged on the
demeanor of the witnesses, he specifically cited demeanor on two
occasions. With regard to Reginald Turner, who testified that his
supervisor threatened to fire him if he supported the union, the ALJ
cited Turner's "demeanor" and found his testimony "more truthful"
than the company's witness. Discussing another witness, who denied
that Fieldcrest's offer of discounted merchandise to employees was
designed to influence the forthcoming union election, the ALJ
explained that the company witness' "demeanor was not that of a
trustworthy witness."
Even where demeanor was not specifically mentioned, it appears
to have supported the ALJ's credibility determinations. Though
Sandra Greene's testimony (regarding Windy Black's threats that
employees would not receive a pay raise because of the union) was
credited because she was a current employee, the ALJ also noted that
"Greene was a more truthful witness than Black." And Sharon Davis,
who testified that supervisor Don Hancock had monitored union
employees, was regarded as a more "credible witness" than Hancock.
As the Seventh Circuit explained, "Credibility . . . is a function not
only of what a witness says but of how a witness says it." NLRB v.
Overnite Transportation Co., 938 F.2d 815, 819 (7th Cir. 1991).
While some of the ALJ's assessments of demeanor are certainly gen-
eral, the balancing of witnesses' testimony is at the heart of the fact-
finding process, and it is normally not the role of reviewing courts to
second-guess a fact-finder's determinations about who appeared more
"truthful" or "credible."
Moreover, the ALJ was not remiss in observing that the representa-
tion campaign as a whole was marked by an atmosphere of intimida-
tion and hostility toward the union. Fieldcrest posted signs showing
a locked gate accompanied by the words: "What do Fieldcrest
Cannon's Bedspread Mill and Sheeting Mill in Eden have in com-
mon? Both plants were unionized by ACTWU. Both plants were
closed due to economic conditions." Other fliers detailed the loss of
jobs at Fieldcrest's unionized plants, contained pictures of abandoned
facilities, and, as noted earlier, depicted a nuclear explosion with the
11
words "There's more than one way to destroy a community. VOTE
NO." An atmosphere of reprisal and recrimination against union sup-
porters may provide a context for evaluating the testimony of wit-
nesses and no doubt enhanced the credibility of those who were
accusing the company of violations.
Finally, there was also substantial corroborating testimony to sup-
port the ALJ's credibility determinations. When current employee
Peggy Jordan testified that managers Buck Reese and Harold Rose-
man threatened the loss of current benefits if the union was voted in,
her testimony was also corroborated by other witnesses. The ALJ
noted that Jordan's testimony was decidedly similar to "statements
made to employees by other supervisors." Given the cumulative
weight of different witnesses alleging nearly identical incidents, Jor-
dan's credibility was enhanced. The ALJ relied on similar corroborat-
ing evidence no less than 49 times over the course of his opinion.
The above examples constitute no more than a sampling, but they
are sufficient to demonstrate how the ALJ approached his task. He
erred in relying on the employee status of the witnesses before him,
but there is a great deal of other evidence supporting the conclusions
that he reached. We are not prepared to set at naught findings that are
solidly grounded in the evidence. Standard, 691 F.2d at 1138. The
ALJ's opinion provides a detailed discussion of why the union wit-
nesses' testimony was more persuasive than the testimony offered by
Fieldcrest's witnesses. As a result, it is proper to conclude that the
record here "adequately supports the administrative law judge's credi-
bility determination[s]." Id.
D.
In sum, Fieldcrest's attack on the ALJ's credibility determinations
misses the forest for the trees. Its attack upon the ALJ fails ultimately
to divert attention from the central point of this litigation: the over-
whelming evidence against Fieldcrest. The vast majority of the 100
plus violations here were not only supported by substantial evidence.
The whole of this case is greater even than the sum of its respective
parts. Fieldcrest's threats and reprisals against union adherents
included:
12
unlawful interrogations; a threat of discharge if a union
withdrawal card was not signed; threats of lost benefits;
threats of disciplinary action; threats of termination; threats
of plant closure if employees selected the union; the posting
of a threat of deportation to Spanish-speaking employees if
they signed union cards; threats of other reprisal; harass-
ment; an order to wear a pro-employer t-shirt; threats of
more stringent enforcement of the rules if the union was
selected; assignment of additional work; closer monitoring
and surveillance of union employees; restriction of union
members' movement; prohibiting employees from engaging
in conversation about the union; disparate treatment; and
various warnings and discharges that appeared to stem in
part from the employees' union activities.
See Fieldcrest-Cannon, Inc. and Amalgamated Clothing and Textile
Workers Union, 318 N.L.R.B. No. 54 (August 25, 1995).
While it is difficult to convey the full weight of the case against
Fieldcrest merely by listing violations and discussing a few examples,
the Board concluded that Fieldcrest's unfair labor practices were
"numerous," "pervasive," "outrageous," "egregious," and "notorious."
The Board member who dissented on minor aspects of the case
agreed with the majority that "the number and pervasiveness of the
Respondent's unfair labor practices warrant remedies beyond those of
the ordinary case." (Board Member Stephens, concurring in part). So
too did the ALJ conclude that Fieldcrest "`has engaged in such egre-
gious and widespread misconduct as to demonstrate a general disre-
gard for employees' statutory rights.'" (quoting Hickmott Foods, 242
N.L.R.B. 1357 (1979)). The record reveals that this is not a strong
case from the company's standpoint. While it is assuredly lawful for
a company to oppose the unionization of its workforce, see 29 U.S.C.
§ 158(c), Fieldcrest simply adopted a scorched earth, take-no-
prisoners approach to stop unionization without regard to statutory
limitations. The cumulative evidence in this case amply supports the
ALJ's determinations--the kind of ground-floor determinations by a
fact-finder to which we would be obliged to defer even under less
condemning circumstances.
13
III.
The broad picture does not, of course, relieve this court from the
obligation to review Fieldcrest's challenge to individual findings of
discrimination in violation of § 8(a) of the Act. 29 U.S.C. § 158(a)
("It shall be an unfair labor practice for an employer (1) to interfere
with, restrain, or coerce employees in the exercise of [their] rights
. . . (2) to dominate or interfere with the formation . . . of any labor
organization . . . (3) [discriminate] in regard to the hire or tenure of
employment or any term or condition of employment to discourage
membership in any labor organization . . . (4) to discharge or other-
wise discriminate against an employee because he has filed charges
. . . (5) to refuse to bargain collectively"). While the majority of those
findings are supported by substantial evidence, three are not. Ronald
Pharr, Earl White, and Cathy Thompson were all discharged for mis-
conduct unrelated to the union campaign. Accordingly, these employ-
ees were not entitled to relief under the Act.
A.
Ronald Pharr was discharged for refusing to take a breathalyzer
test. One of Pharr's coworkers, Rosie Robinson, complained to super-
visor Percy Smith that Pharr was harassing her. Smith then
approached Pharr, and according to Smith, Pharr was"really smell-
ing" of alcohol. According to Pharr, Smith said:"Ron, I smell alcohol
on your breath and I'm going to give you a breathalyzer." After Pharr
wandered around the plant for some time and failed to report to the
testing room (presumably to diminish his blood alcohol content),
Pharr allowed himself to be escorted off the premises without ever
submitting to a blood alcohol test. At the hearing, Pharr admitted that
he had consumed beer immediately before work. Pharr also testified
about two prior incidents of alcohol abuse at Fieldcrest: (1) he came
to work "smelling kind of strong" of alcohol and was warned by
Smith; (2) he drank so much Cisco (a fortified wine which "gets you
high pretty quick") that he had to be sent home sick because he was
too "dizzy" to work. Pharr's criminal record also includes injuring
real property and two assaults, one of a government official. Given
Pharr's own testimony, his termination had nothing to do with the
union campaign and everything to do with his own misconduct.
14
B.
Earl White was discharged for disruptive behavior while working
as a probationary employee. White's behavior was reported from sev-
eral sources and ranged from murderous threats to sexual harassment.
Co-worker Ivey Mosely testified that White had threatened to "shoot"
another employee. And White's supervisor, Jimmy Allen, received at
least three complaints regarding White's violent nature: (1) that White
argued with Harold Caldwell and threatened to kill him; (2) that
White threatened Kevin Glasco with bodily harm; and (3) that White
intended to harm Abraham Mincer. Fieldcrest was also legitimately
concerned about White's behavior around women. Co-worker Patsy
Jamerson testified that White would "grab" women and "touch them"
and "say sexual--sometimes sexual remarks to them." Roslyn Hem-
phill testified that she endured such harassment and had complained
on two occasions to Allen. The cumulative weight of this testimony
suggests that White's termination was not related to his union activ-
ity.
C.
Cathy Thompson was discharged for running her towel machine
without towels in it, thereby increasing her production and pay.
Thompson admitted on the witness stand that she had cheated on pro-
duction before, and her company records reflected two prior warnings
for this behavior. Just before Thompson's termination, three of her
co-workers (Walter Waller, Sam Jallah, and Kelly Walker) reported
Thompson to supervisor Reganna Earwood, each alleging that
Thompson was cheating on production. According to Walker,
Thompson managed more than 500 false runs every night. As a result
of these complaints, Earwood eventually caught Thompson cheating
on the machine. Given this evidence, we do not think that Thomp-
son's termination had anything to do with the union campaign.
As the discharge of these three employees did not amount to a vio-
lation of section 8(a)(3) of the Act, we decline to enforce that portion
of the Board's order that required Pharr, White, and Thompson to be
reinstated and made whole.
15
IV.
We next turn to the question of remedy. The Board's order pro-
vided an extensive list of remedies in addition to the reinstatement
and compensation of those employees who had been discriminatorily
discharged or disciplined. The Board ordered that Fieldcrest: (1) hold
a new election off-premises; (2) cease and desist from the unfair labor
practices; (3) rescind unlawful company rules; (4) supply the union
with names and addresses of its non-union employees; (5) allow the
union reasonable access to its bulletin boards; (6) grant the union
access to nonwork areas during employees' nonwork time; (7) allow
the union to respond to company speeches regarding the issue of rep-
resentation; (8) afford the union the right to deliver a 30-minute
speech to employees on working time prior to the election; (9) post
notices at its plants of the Board's findings; (10) publish the notices
in various company newsletters and local newspapers; (11) mail the
notices to employees; and (12) require a company representative to
read the notice to its employees. We agree with the Board that, under
the extraordinary circumstances of this case, these steps did not
amount to an abuse of the Board's remedial power. See Monfort, Inc.
v. NLRB, 965 F.2d 1538 (10th Cir. 1992). We do not suggest that
these steps would be appropriate in every case.
V.
We enforce the Board's order with the exception of those aspects
relating to Ronald Pharr, Earl White, and Cathy Thompson and those
portions addressing the pay raise differential between Fieldcrest's
union and non-union employees. As to those matters, we deny
enforcement.
ENFORCEMENT GRANTED IN PART AND DENIED IN PART
WILKINSON, Chief Judge, concurring:
I write simply to express my reasons for voting to deny enforce-
ment of that aspect of the Board's order altering the salary increase
agreed to by Fieldcrest and the union in the course of collective bar-
gaining. A brief word of background is in order at the outset.
16
After Fieldcrest had raised non-union employees' salaries by 5.5%,
it entered into collective bargaining negotiations with the union over
the appropriate rate at which union employees' pay should be
increased. Fieldcrest initially sought the figure of 4% and the union,
6%. As the negotiations progressed, Fieldcrest increased its figure to
4.25% and the union decreased its request to 5.5%, before they even-
tually agreed to 4.5%. In the end, therefore, the non-union employees
received a 5.5% salary increase and the union employees, a 4.5%
increase.
The Board, in its order addressing the 1% difference between the
two pay increases, required that Fieldcrest make whole its union-
represented employees by extending to them the 5.5% salary increase
granted to non-union employees. It also ordered Fieldcrest to resume
bargaining with the union over the "terms and conditions of employ-
ment." As both of these remedies constitute improper attempts by the
Board to influence the outcome of collective bargaining, they exceed
the Board's power as outlined by the Act and by Supreme Court pre-
cedent. See H.K. Porter Co. v. NLRB, 397 U.S. 99, 103 (1970); NLRB
v. American National Insurance Co., 343 U.S. 395, 404 (1952).
Accordingly, that portion of the Board's bargaining order relating to
the salary differential between union and non-union employees cannot
be enforced.
A.
Section 8(d) of the Act states that the obligation to bargain "does
not compel either party to agree to a proposal or require the making
of a concession." 29 U.S.C. § 158(d). Pursuant to this section, the
Supreme Court has consistently held that the Board shall not be
allowed to influence the results of collective bargaining. This is
because the "object of the Act was not to allow governmental regula-
tion of the terms and conditions of employment, but rather to ensure
that employers and their employees could work together to establish
mutually satisfactory conditions." H.K. Porter, 397 U.S. 99 at 103.
Accordingly, the Board cannot "directly or indirectly, compel conces-
sions or otherwise sit in judgment upon the substantive terms of col-
lective bargaining agreements." American National, 343 U.S. at 404.
The Board's order that Fieldcrest extend the salary increase given
to non-union employees to its union employees was improper. The
17
Supreme Court rejected precisely such an order in H.K. Porter, which
was "the first time in the 35-year history of the Act that the Board [ ]
ordered either an employer or a union to agree to a substantive term
of a collective-bargaining agreement." 397 U.S. at 106. In that case,
the Board found that the employer's failure to agree to a union
demand for union dues checkoff was not in good faith, and it ordered
the company to grant the union's request. The Supreme Court, how-
ever, held that the Board lacked the remedial authority under the Act
to require the employer to accept any particular term: "while the
Board does have power under the National Labor Relations Act to
require employers and employees to negotiate, it is without power to
compel a company or a union to agree to any substantive contractual
provision of a collective-bargaining agreement." Id. at 102. In short,
"the results of the contest" should be left to"the bargaining strengths
of the parties." Id. at 108.
This circuit has followed H.K. Porter when facing circumstances
similar to those presented here. In Clearwater Finishing Co. v. NLRB,
670 F.2d 464, 466 (4th Cir. 1982), the company refused to agree to
the union's bargaining demand for a retroactive pay increase which
had already been granted to non-union employees. The Board found
that the company lacked good faith and required it to grant the retro-
active pay increase to union employees. This court disagreed, explain-
ing that "the Board's order that the Company grant the proposed wage
increase retroactively is beyond the scope of its authority as set out
in H.K. Porter." Id. at 468.
The Board in this case similarly exceeded its authority. Here, as in
Clearwater, the Board altered the terms of a pay raise, a substantive
element of a collective bargaining agreement. Fieldcrest and the union
had negotiated over a period of four months, and each had proposed
at least three different figures for the pay increase. In fact, the Board's
order here is even more intrusive than the ones rejected in Clearwater
and H.K. Porter. In this case, the parties actually had agreed to a pay
raise of 4.5%. The Board thus did more than side with one party's
position in ongoing negotiations; it dictated a change to the pay raise
already agreed upon by both parties. This, the Act clearly does not
allow. H.K. Porter, 397 U.S. at 102.
That portion of the Board's order that would require Fieldcrest and
the union to renegotiate the agreed-upon salary increase of 4.5% must
18
likewise be rejected. As the Supreme Court explained in American
National, "Congress provided expressly that the Board should not
pass upon the desirability of the substantive terms of labor agree-
ments." 343 U.S. at 408-9. This would certainly be the result if the
Board could order the parties to renegotiate a term already agreed to
by the parties during collective bargaining. Moreover, such an order
is tantamount to dictating the terms of the agreement. The Act, of
course, does not allow such a result. Id.; see also H.K. Porter, 397
U.S. at 102.
B.
The Board, however, contends that its imposition of collective bar-
gaining terms was justified because Fieldcrest's offer of a 4.5% salary
increase to the union lacked good faith. Section 8(d) of the Act
requires that parties "confer in good faith with respect to wages,
hours, and other terms and conditions of employment," 29 U.S.C.
158(d), and negotiate "with the view of reaching an agreement if pos-
sible." NLRB v. Highland Park Mfg. Co., 110 F.2d 632, 637 (4th Cir.
1940); see also NLRB v. Katz, 369 U.S. 736, 747 (1962) (the parties
shall not possess "a cast of mind against reaching agreement"). While
Fieldcrest maintains that the existence of an actual agreement is itself
proof that it entered into negotiations with the good faith intention of
reaching agreement, the Board and the union offer various reasons for
why this is not so. I shall address each of those arguments in turn.
1.
The Board contends that Fieldcrest's record of unfair labor prac-
tices demonstrates that Fieldcrest did not intend to bargain in good
faith with the union. While the Board is correct that courts have
looked outside of the negotiations for activity indicative of "a cast of
mind against reaching agreement," Katz, 369 U.S. at 747; see
Radisson Plaza Minneapolis v. NLRB, 987 F.2d at 1376, 1381 (8th
Cir. 1993), these cases involved attempts to ascertain whether the bar-
gaining constituted a "`charade or sham [intended] to avoid reaching
an agreement.'" Radisson, 987 F.2d at 1381 (quoting Continental
Insurance Co. v. NLRB, 495 F.2d 44, 48 (2nd Cir. 1974) (emphasis
added). Such inquiries, however, are pointless when the parties have
already reached agreement. Here, the agreement itself proves the
19
good faith of the parties: if the parties had no intention of reaching
an agreement, no agreement would have been reached.
2.
The union maintains that the existence of an agreement cannot
itself prove good faith because parties may reach an agreement in the
absence of good faith. The union suggests that it conceded to Field-
crest's term merely so that it could litigate Fieldcrest's bargaining
position--and of course, so that it could give its workers an immedi-
ate wage increase of 4.5%. Essentially, the union claims that Field-
crest lacked good faith because it had no future intention of
continuing to bargain had the union rejected the 4.5% term. But we
have no way of knowing what Fieldcrest would have done had the
union either refused that offer or gone on strike. Violations of the Act
cannot be based on speculation. While it is true that further delay in
reaching a pay increase (or the initiation of a strike) might have
undermined support for the union at Fieldcrest, a party may not use
the courts to circumvent the collective bargaining process. After all,
tough give-and-take is part of collective bargaining, and it was ulti-
mately the union's choice to accept the offer on the table or continue
to negotiate.
3.
The union also contends that Fieldcrest's failure to offer the 5.5%
raise to union employees during the negotiations (or perhaps, even to
use this figure as the starting point for the negotiations) demonstrates
an absence of good faith. The Board itself has noted, however, that
"regarding the grant of new benefits to unrepresented workers, the
most that can be said is that the Act may impose on the employer the
duty to bargain with respect to providing the new benefits to repre-
sented employees." B.F. Goodrich Co., 195 N.L.R.B. 914, 915
(1972); see also H.K. Porter, 397 U.S. at 102; Winn-Dixie Raleigh,
Inc., 267 N.L.R.B. 231, 236 (1983).
The flaw in the union's argument here is apparent when one con-
siders the hypothetical opposite case, where Fieldcrest attempts to
impose on the union the same pay increase granted to non-union
employees. Had Fieldcrest, for example, given non-union employees
20
a 3.5% pay increase, certainly Fieldcrest could not have unilaterally
imposed that increase on the union; the union would have wanted the
opportunity to bargain for the 4.5% raise. In fact, this was precisely
what the union tried to accomplish here. The union initially sought
not the 5.5% given to non-union employees, but rather, a higher sal-
ary increase, 6%.
While the union assumes that its employees will always be at least
as well off as non-union employees, collective bargaining entails the
risk that they will be worse off. Presumably, when employees vote for
union representation, they are making a prediction that more often
than not, they will be better off. But certainly, there is no guarantee
that this will be true in every case. As the Supreme Court explained
in H.K. Porter:
the Act as presently drawn does not contemplate that unions
will always be able to secure and achieve agreement even
when their economic position is weak, or that strikes or
lockouts will never result from a collective bargaining
impasse. It cannot be said that the Act forbids an employer
or a union to rely ultimately on its economic strength.
397 U.S. at 109.
The union's failure to obtain its desired increase of 6% was ulti-
mately the consequence of its lack of economic strength. In recent
years, the percentage of unionized employees at Fieldcrest had
decreased from 65% of its employees to less than 25%. Moreover, the
union had agreed to salary increases of 4%-4.5% from Fieldcrest's
competitors. Most importantly, though, the union publicly disavowed
the viability of a strike and even promised Fieldcrest's employees that
it would not strike. Given these circumstances, the threat of a strike
was no longer credible, and the realities of the bargaining process
determined the ultimate result.
4.
The Board also contends that the good faith inquiry must include
the underlying motivation for reaching an agreement. For instance, if
21
Fieldcrest's motive for pursuing the 4.5% term included the desire to
undermine the union, the Board would presumably find an absence of
good faith. Again, while evidence of such motives might be useful to
prove the existence of a "`charade or sham [intended] to avoid reach-
ing an agreement,'" Radisson, 987 F.2d at 1381 (quoting Continental
Insurance Co., 495 F.2d at 48 (emphasis added), the parties reached
agreement here.
Moreover, the Board's assumption that certain motivations some-
how invalidate collective bargaining agreements is a questionable
one. Consider Fieldcrest's potential motives for the salary differential:
discouraging unionization at its other plants; taking advantage of the
union's unusually weak bargaining position; recompensating its cof-
fers for previous pay increases to union employees; saving funds in
anticipation of future pay increases; or giving union employees a
lower pay increase than non-union employees because union mem-
bers receive other costly benefits (benefits that non-union employees
may not receive). All of these are merely aspects of the same over-
arching motive that always controls the company's position: the max-
imization of profit. As the Seventh Circuit explained, the company
that does "whatever it can to maximize its profits by minimizing its
labor costs invites a test of strength with its unions. It does not com-
mit an unfair labor practice." Graphic Communications Union v.
NLRB, 977 F.2d 1168, 1171 (7th Cir. 1992).
The union's varied motivations for seeking a 6% pay increase
appear equally irrelevant to the validity of the bargaining. Perhaps the
union sought to one-up the non-union pay raise to further its cam-
paign at Fieldcrest's other facilities and thus to enlarge its member-
ship. Is it an absence of good faith for a union to want more than what
the company considers a "fair" pay increase? Of course not. Whatever
the union's underlying motive(s) may have been for seeking 6%, the
union was merely attempting to improve the condition of its member-
ship.
It is precisely this fundamental conflict between the rational inter-
ests of the company and those of the union that necessitates collective
bargaining in the first place. And ultimately, so long as the parties are
actually bargaining (and no charade exists), one need not be con-
cerned about various motives affecting the negotiations--the ultimate
22
agreement will always reflect the parties' legitimate bargaining
strength. As reliance on one's bargaining strength was precisely what
Congress intended when it passed the Act, this cannot substantiate the
absence of good faith. H.K. Porter, 397 U.S. at 108.
In sum, the Board should have respected the outcome of the collec-
tive bargaining process.
LUTTIG, Circuit Judge, dissenting in part:
One cannot possibly read the record and the administrative law
judge's decision at issue in this case without being left with the
impression that, whether through a series of innocent legal errors or,
as Fieldcrest Cannon contends, through manifest pro-Union bias, the
ALJ never gave Fieldcrest a chance to have its defense to the Union's
claims fairly considered. Indeed, the opinion upon which the Compa-
ny's substantial liability is now predicated appears as nothing more
than a series of rationalizations for a predetermined finding of liability
against the Company. For example, after conducting some 36 days of
hearings, which consume more than 7800 pages of transcript, the ALJ
ended up crediting the testimony of nearly every single one of the 100
witnesses who appeared on behalf of the Union and discrediting the
testimony of nearly every single one of the 150 witnesses presented
by the Company, finding approximately 130 violations of the
National Labor Relations Act from among the 130-plus violations
alleged by the Union. As the majority notes, the comparative numbers
of witnesses credited by a factfinder cannot, in itself, serve as a mea-
sure of the correctness of a decision. At the same time, however, we
cannot be naive to the real possibility in this instance that, contrary
to the majority's uncritical assumption, the ALJ's wholesale crediting
of the Union's witnesses and corresponding discrediting of the Com-
pany's witnesses was more than simply the happenstance result of a
dispassionate consideration of the substantive testimony of the 250
witnesses in question. Regardless of whether it was merely a compos-
ite of innocent errors or outright bias against the Company that
resulted in the decision we review herein, the ALJ's conclusions, and
consequently the judgment of the Board, are wholly insupportable in
law. Accordingly, although I join in the judgment rejecting the
Board's order of a retroactive salary increase for the Company's
23
union employees, I dissent from the majority's affirmance of the
Board's liability determinations.
The ALJ's errors are various and sundry, but three broad categories
of errors combine to confirm the palpable unfairness of the proceed-
ing below. First, in direct contravention of this court's precedent, the
ALJ uniformly credited those employee-witnesses who testified on
the Union's behalf, merely because they were employees of Fieldcrest
Cannon; second, the ALJ found violations of the National Labor
Relations Act in many incidents that are not, as a matter of law, even
colorable violations of the Act; and third, the ALJ based many of his
findings of violation on no evidence whatsoever, merely inferring cer-
tain violations of the Act from what he erroneously found to be man-
agement animus toward the Union.
The first and foremost error of the ALJ was that, in direct contra-
vention of this court's precedent, he weighted heavily the testimony
of Fieldcrest employees who testified against the Company, merely
because they were employed by the Company. In L.S. Ayres & Co.
v. National Labor Relations Bd., 551 F.2d 586 (4th Cir. 1977), we
held that, "the fact that a witness is an employee at the time that he
testifies adversely to his employer is at most only a factor bearing
upon his credibility and one entitled to little weight unless it is estab-
lished that he does not know that he is protected in testifying." Id. at
588 (emphases added). In direct disregard of Ayres, the ALJ expressly
and repeatedly held that the testimony of current employees was enti-
tled to "considerable weight" because, he reasoned, it was "unlikely
that a current employee will testify falsely against his employer." J.A.
at 61 & n.12. Representative are the following: that, "[t]he testimony
of [Angela] Coleman, a current employee, [was] entitled to consider-
able weight," J.A. at 61; that Eric Strickland's"status as a company
employee at the time of his testimony ma[de] it unlikely that he testi-
fied against his Employer's interest," J.A. at 61-62; that Sandra
Greene "was a current employee at the time of her testimony, and for
that reason, it is unlikely that her testimony was false," J.A. at 62; that
Benny McIntyre's "testimony, as a current employee, [was] entitled
to considerable weight," J.A. at 64; that "it[was] unlikely that the[ ]
testimony [of employees Terros Brown and Johnny High] against the
interests of their employer was false," J.A. at 66; that Drenia Smith's
status as a current employee "enhance[d] her credibility," J.A. at 67;
24
that, "[a]s a current employee, it [was] unlikely that [Brenda Lyles]
testified falsely against her Employer's interest," J.A. at 68; and that
Oreida Clarke's "trustworthiness [was] augmented by her status as a
current employee," J.A. at 69. In fact, the ALJ expressly credited
employee witnesses due solely or partially to their employment status
some 50 times (and, likely, implicitly in many others), clearly a suffi-
ciently large number of instances such that it is impossible to affirm
the ALJ's conclusions as the majority does. See J.A. at 61 (Angela
Coleman), 61 (Eric Strickland), 62 (Sandra Greene), 64 (Benny McIn-
tyre), 66 (Johnny High & Terros Brown), 67 (Drenia Smith), 68
(Brenda Lyles), 69 (Oreida Clarke), 76 (Sandra Greene), 77 (Tony
Bumgarner), 77 (Sharon Davis), 78 (Joanne Diggs & Sylvia Craw-
ford), 78 (Drenia Smith, Pat Boger, & Sheila Deal), 78 (Vicki Fink),
79 (Angela Coleman), 83 (Terry Smothers), 83 (Sherry Anthony), 84
(Sylvia Crawford), 87 (Sharon Davis), 88 (Benny McIntyre), 88
(Peggy Jordan), 89 (Euretha Lee, Sherry Anthony, & Paula Brice), 89
(Sharon Davis), 90 (Wade Story), 92 (Sharon Davis), 93 (Eric Strick-
land), 94 (Vickie Fink), 94 (Kemberly Watts), 95 (Brenda Harrell &
Cynthia Hanes), 95 (Patricia Boone), 102 (Jenny Vires & Daniel
Vires), 103 (Oscar Clark), 103 (Patsy Turner & Barbara Cook), 103
(Patsy Turner), 104 (George Cochran), 104 (Wilbert Williams & John
Rossner), 105 (Cynthia Hanes), 105 (Sharon Davis), 105 (Drenia
Smith), 105 (Clafter Jackson), 115 (Diana Hamilton), 143 (Norma
Chapman).
The majority acknowledges that the ALJ erred by crediting wit-
nesses based solely on their status as employees, but concludes that
there are "other indicia of credibility" which render the error harm-
less. There are no such "other indicia of credibility" evident in the
record before us. Tellingly, even the majority is able to identify, from
the scores of incidents at issue, only a meager seven or eight exam-
ples which supposedly confirm that there were alternative reasons for
presuming the truthfulness of the pro-Union witnesses' testimony and
presumptively discrediting the Company witnesses' testimony. And,
in fact, not one of even these noticeably few examples supports the
majority's conclusion.
The majority cites two examples of the "absence of direct denials
by company witnesses" in support of its claim that there were other
indicia of reliability for the ALJ's impermissible crediting of pro-
25
Union witnesses. Neither example supports its conclusion. In the first
of these, the incident between James Allman and Graciela Whitley,
ante at 9, although the ALJ did note that supervisor "Allman did not
testify," the ALJ did not even rely on that fact in crediting Whitley,
nor did he mention that fact in his "factual and legal discussion." J.A.
at 66. In any event, this was not an incident in which the ALJ explic-
itly credited a witness based on his employee status. In the second
incident, Oreida Clarke alleged that the Company posted a Spanish
notice threatening workers who signed union cards, ante at 10, but,
as the ALJ himself noted, "all of the Company's witnesses denied
posting any Spanish notice, much less one of the nature described by
Clarke." J.A. at 69. Of course, contrary to the majority's conclusion,
the fact that not all of the Company's supervisors testified does not
render Clarke's testimony unrebutted. Compare ante at 10 ("[T]he
company's witnesses who denied posting such a notice did not
`include all supervisors who may have done so.'" (quoting J.A. at 69)
(emphasis added)).
The majority cites but a single example of the "comparative vague-
ness" of the Union's witnesses vis-a-vis the Company's witnesses,
ante at 10, and, likewise, this example does not support the majority's
assertion that there were alternative reasons for crediting the wit-
nesses improperly credited by the ALJ. Whether or not supervisor
Howard Hall "could hardly remember" the details of the conversation
between himself and Brenda Lyles, ante at 10, Hall, as even the ALJ
conceded, "denied saying anything about plant closure and added that
supervisors had been warned against making any such statements."
J.A. at 68.
Similarly, it is impossible to discern in the majority's lone example
of "internal inconsistency" of Company witness testimony any incon-
sistency at all, much less one that would justify the crediting of Union
witness testimony over Company witness testimony. In that example,
supervisor Perry Harkey simply denied that he spent additional time
on the floor in order to fulfill his added responsibilities to "be avail-
able" to answer employee questions during the election. There is
nothing even arguably inconsistent in this testimony; indeed, the
ALJ's finding (without explanation) that Harkey's testimony was
inconsistent because he could not have fulfilled his added responsibil-
26
ity to "be available" for questions without increasing his time on the
floor, J.A. at 77, is nothing short of silly.
The "substantial corroborating testimony" which the majority
would have one believe supports the ALJ's credibility determinations,
ante at 12, is not corroborating testimony at all. For example, when
a supervisor and an employee agreed that a conversation took place
or that an incident occurred, but disagreed as to what was said or what
occurred, the ALJ, consistent with the manner in which he conducted
the balance of the hearing, found that the agreement partially corrobo-
rated the employee's testimony. See, e.g., J.A. at 64, 103.
"To a lesser extent," the majority relies upon witness demeanor evi-
dence assertedly relied upon by the ALJ in making credibility deter-
minations, and it cites four examples of the ALJ's supposed reliance
on such demeanor evidence. Ante at 10-11. Even the majority must
concede, however, that, in two of these instances, the ALJ himself did
not even cite demeanor as a reason for his crediting of the Union's
witnesses. Of course, even when the ALJ did rely upon demeanor, it
cannot possibly be known whether the ALJ would have credited the
pro-Union witnesses' testimony on the strength of demeanor alone,
had the ALJ not impermissibly accorded those witnesses' testimony
considerable weight at the outset.
Finally, the majority holds that the "atmosphere of reprisal and
recrimination against union supporters" justified the ALJ's presump-
tion of truthfulness with regard to Union employees, ante at 12. Obvi-
ously, even if such an atmosphere existed, this alone would be no
ground for crediting, as a matter of law, one party's witnesses over
another's. To uphold the ALJ's findings on this ground is to relieve
the Union altogether of its burden to prove violations of the Act.
In sum, contrary to the majority's assertion, there is simply no
basis in the record for sustaining the ALJ's findings, in the face of his
conceded error in presuming the truthfulness of all pro-Union
employee witnesses and the contrary of all Company witnesses.
Wholly apart from the ALJ's erroneous crediting of the Union's
employee witnesses over the Company's witnesses, the ALJ found
egregious violations of the NLRA where, as a matter of law, there
27
were not even colorable violations. Illustrative is the first "violation"
described by the ALJ. There, supervisor Diane Hartis handed out pro-
company t-shirts to employees who asked for them. J.A. at 58.
Employee Sylvia Crawford asked Hartis for a shirt, and Hartis said
"[f]ine" and gave her one. Id. When Hartis learned that Crawford
intended to deface the shirt, she told Crawford,"[i]f you search in
your heart, will you please just give the shirt back." Id. Hartis also
said, "I don't want to be made a fool of." Id. Crawford admitted that
some of the employees were defacing the shirts and told Hartis that
she would give the shirt back to Hartis if she changed the slogan. Har-
tis replied, "Please give it back," and Crawford later returned the shirt.
Id. On the basis of these exchanges alone, the ALJ concluded that
Hartis "coercively interrogated Crawford about her union sentiments."
Id. Of course, Hartis' request that Crawford return the shirt rather
than deface it was not even arguably coercion or interrogation in vio-
lation of section 8(a)(1).
The ALJ even found that the Company violated the Act when it
remedied or promised to remedy employee grievances, J.A. at 95-98,
and when it held grievance meetings for employees. The utter ridicu-
lousness of the ALJ's findings is perhaps best summed up in the fol-
lowing passage, in which the ALJ described M.D. Ford's "violation"
of the NLRA:
Ford's own testimony establishes that his meetings with
employees after the advent of the union campaign increased
markedly over the number of asserted meetings prior to that
time. There is no question, as Ford admitted, that he asked
employees about their concerns and problems.
J.A. at 96 (emphasis added). And, unfortunately, similar examples of
the ALJ's errors abound throughout the record.
Finally, as if to add insult to injury, the ALJ inferred countless vio-
lations from the Company's "extraordinary animus" and "widespread
violations," both of which he found to exist only because he improp-
erly credited all of the Union's witnesses and otherwise misread sec-
tion 8(a). Most notably, the ALJ relied on these unwarranted
presumptions to establish prima facie cases that protected conduct
was a motivating factor in the Company's discipline or discharge of
28
pro-union employees. J.A. at 110, 112, 114, 116, 117, 119. In fact, the
ALJ sometimes relied exclusively on anti-union animus to establish
such prima facie cases. J.A. at 110, 112.
Thus, at bottom, the ALJ's errors in this case are so egregious and
pervasive that it cannot possibly be said that the record offers substan-
tial evidence for his findings. In holding to the contrary, the majority
has, for purposes of this case at least, redefined our role in the review
of such ALJ findings into an empty act of pro forma ratification.
I respectfully dissent.
MICHAEL, Circuit Judge, concurring in part and dissenting in part:
I readily concur in parts I through IV of the majority opinion. I
respectfully dissent, however, from the majority's holding (in part V)
that the Board exceeded its authority in ordering Fieldcrest to grant
its union workers the same wage increase the company unilaterally
and discriminatorily granted its workers in unrepresented plants. I dis-
sent to that extent because I believe substantial evidence in the record
as a whole supports the Board's finding that Fieldcrest violated
§ 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3),
and because the Board has "the primary responsibility and broad dis-
cretion to devise remedies that effectuate the policies of the Act, sub-
ject only to limited judicial review." Sure-Tan, Inc. v. NLRB, 467 U.S.
883, 898-99 (1984) (interpreting NLRA § 10, 29 U.S.C. § 160).
Moreover, the majority's holding on the pay remedy is inconsistent
with our own precedent and creates an inadvisable split of authority
between us and our sister circuits.
I.
Since 1978 Fieldcrest's practice with respect to wage increases had
been to negotiate a wage increase for its union-represented plants first
and afterward to give the same increase to its non-union plants.1 The
_________________________________________________________________
1 There were only a few immaterial departures from this practice. In
1987 and 1988 Fieldcrest employees at certain newly-acquired plants
received a smaller wage increase in order to standardize their pay with
29
Board found that as part of a campaign to discourage union member-
ship at other plants, Fieldcrest (in 1991) departed from its usual and
customary practice of handling wage increases. Specifically, before
entering into wage negotiations with the union, it unilaterally granted
a 5.5 percent wage increase to workers who were not represented by
the union. Fieldcrest granted this increase even though the company
had lost money in the first part of the year. In wage negotiations
Fieldcrest refused to offer the same wage increase to represented
workers, offering only a 4.5 percent increase.2
The Board found that numerous Fieldcrest supervisors told
employees at the unrepresented plants that they received their larger
wage increase as a reward for defeating the union. Supervisors at
union plants told employees that they were denied a pay increase
because they were at a union plant. One supervisor said that the com-
pany insisted on the smaller wage increase "to discredit the Union and
try to drive it out of the mill." The Board found:
[Fieldcrest's] discriminatory departure from its practice of
granting identical wage benefits to its represented and
unrepresented employees indicates [Fieldcrest's] desire to
frustrate bargaining and to "undermine and destroy" the
Union. [Fieldcrest's] extreme [anti-]union animus is further
evidenced by the numerous unfair labor practice violations
_________________________________________________________________
the pay scale of employees at the plants the company already owned. In
1986 the company delayed implementation of a pay increase at union
plants due to a dispute over how third-shift pay should be handled. In
1981 a wage increase in union plants was delayed due to a dispute over
payment of insurance premiums. The Board's finding that these scattered
incidents were not material alterations in Fieldcrest's wage increase pol-
icy is supported by substantial evidence in the record as a whole. See
NLRA § 10(e), 29 U.S.C. § 160(e).
2 The concurring opinion characterizes the wage increase disparity as
a "1% difference." Conc. Op., ante at 17. Although the disparity is a one
percentage point difference when total wages are compared, the magni-
tude of the disparity is much greater when the amounts of the increases
are compared to each other. Non-union employees got a raise that was
22 percent higher than union employees.
30
discussed in the [administrative law] judge's decision. Such
a pattern of discriminatory conduct is inconsistent with
good-faith bargaining, and reflects [Fieldcrest's] determina-
tion not to reach agreement with the Union.
In addition, [Fieldcrest's] agents made statements both dur-
ing and outside the negotiations which strongly suggested
that its wage-increase proposals to the Union were intended
both to punish the Union for its attempts to organize the
unorganized plants and to undermine any further attempts at
organization. These statements came from the highest levels
of [Fieldcrest's] management as well as several supervisors
on the shop floor.
Fieldcrest Cannon, Inc., 318 NLRB No. 54, at 2-3 (1995). The Board
concluded that the company's conduct violated NLRA§§ 8(a)(1), (3)
& (5).
II.
The Board's choice of remedy must be enforced unless it is arbi-
trary, capricious, or manifestly contrary to the statute. ABF Freight
Sys., Inc. v. NLRB, 114 S. Ct. 835, 839 (1994) (on remedial issues
"the Board's views merit the greatest deference"); accord Sure-Tan,
467 U.S. at 898-99 (1984); Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 194 (1941); Monfort, Inc. v. NLRB, 965 F.2d 1538, 1548 & n.15
(10th Cir. 1992); Conair Corp. v. NLRB, 721 F.2d 1355, 1385-87
(D.C. Cir. 1983), cert. denied, 467 U.S. 1241 (1984). Given Field-
crest's "scorched earth, take-no-prisoners approach to stop unioniza-
tion without regard to statutory limitations," Maj. Op., ante at 13,3 the
Board's chosen remedy was appropriate.
_________________________________________________________________
3 Indeed, Fieldcrest mounted "a Stalingrad defense of sorts to the threat
of unionization, fighting the Union, by any means at hand, from rock to
rock and from tree to tree." NLRB v. Horizon Air Servs., 761 F.2d 22, 29
n.5 (1st Cir. 1985).
31
A.
I recognize that a simple violation of the duty to bargain in good
faith cannot justify the pay remedy the Board ordered. H. K. Porter
Co. v. NLRB, 397 U.S. 99, 108 (1970). If an employer refuses to bar-
gain in good faith in violation of § 8(a)(5), the Board may order the
employer to bargain in good faith but may not compel the employer
to accept any particular union demand. The rule is intended to allow
employees and employers to make their own contract. The Board
exceeds its authority when it attempts to write the parties' contract for
them. NLRB v. Insurance Agents Int'l Union, AFL-CIO, 361 U.S.
477, 488 (1960); NLRB v. American Nat'l Ins. Co. , 343 U.S. 395, 404
(1952). "[W]hile the Board does have power . . . to require employers
and employees to negotiate, it is without power to compel a company
or a union to agree to any substantive contractual provision of a
collective-bargaining agreement." H.K. Porter , 397 U.S. at 102.
"[T]he duty to bargain collectively does not carry with it the duty to
reach an agreement." Id. at 104 (quoting S. Rep. No. 573, 74th Cong.,
1st Sess., 12 (1935)). This rule is embodied NLRA§ 8(d), which pro-
vides that
to bargain collectively is the performance of the mutual
obligation of the employer and the representative of the
employees to meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms and con-
ditions of employment, or the negotiation of an agreement,
or any question arising thereunder, and the execution of a
written contract incorporating any agreement reached if
requested by either party, but such obligation does not com-
pel either party to agree to a proposal or require the making
of a concession.
I also recognize that in Clearwater Finishing Co. v. NLRB, 670
F.2d 464, 468 (4th Cir. 1982), we reaffirmed the rule barring the
Board from "ordering agreement" on contract terms. The majority's
refusal to enforce the pay remedy would therefore be correct if all
Fieldcrest had done was violate its duty to bargain in good faith.
Fieldcrest, however, did more.
32
B.
The Board additionally found that Fieldcrest's creation of an
unprecedented wage disparity amounted to a completely separate kind
of unfair labor practice: discriminatory withholding of a "wage
increase from its represented employees in order to discourage sup-
port for the Union." Fieldcrest Cannon, Inc. , 318 NLRB No. 54, at
3; see also id. at 3 n.5 ("when, as here, an employer has always
treated wages on a company-wide basis and deviates from that policy
during collective-bargaining negotiations in a context of statements to
the effect that employees are being punished for having selected
union representation, the conduct violates Sec. 8(a)(5), (3), and (1)")
(concurring statement of Member Stephens). Discriminatory with-
holding of wages, regardless of whether those wages also are the sub-
ject of negotiation, separately violates § 8(a)(3) of the National Labor
Relations Act, and the Board so found.4 The majority has simply
ignored this portion of the Board's decision.
The Board did not order Fieldcrest to grant its union employees a
wage increase to redress the violation of NLRA § 8(a)(5) (breach of
duty to bargain in good faith). Instead, the Board imposed the remedy
to redress Fieldcrest's intentional violations of NLRA § 8(a)(3) (dis-
crimination motivated by a desire to discourage union membership)
and NLRA § 8(a)(1) (interference with protected concerted activity).5
Indeed, the concurring opinion recognizes that Fieldcrest's aim in
refusing its represented workers the wage increase it gave to unrepre-
sented workers was "discouraging unionization at its other plants."
_________________________________________________________________
4 NLRA § 8(a)(3) prohibits"discrimination in regard to hire or tenure
of employment or any term or condition of employment to encourage or
discourage membership in any labor organization."
5 "Protected concerted activity" means the exercise of any right guaran-
teed by NLRA § 7, 29 U.S.C. § 157, including:
the right to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, and . . . the right to refrain from any or all such activities
except [with respect to certain union shop requirements, if nego-
tiated pursuant to NLRA § 8(a)(3)].
33
Ante at 22. Creating a wage disparity with the motive of discouraging
unionization is a clear violation of the National Labor Relations Act.
Acme Die Casting v. NLRB, 26 F.3d 162, 166-67 (D.C. Cir. 1994);
Peabody Coal Co. v. NLRB, 725 F.2d 357, 366-67 (6th Cir. 1984);
Eastern Maine Medical Ctr. v. NLRB, 658 F.2d 1, 7-8 & n.4 (1st Cir.
1981); South Shore Hosp. v. NLRB, 630 F.2d 40, 44-45 (1st Cir.
1980), cert. denied, 450 U.S. 965 (1981); Parma Indus., 292 N.L.R.B.
90, 1988 WL 214278 at *1-2 (1988). "By effectively announcing to
[represented workers] that they would be excluded from any increase,
the [employer] . . . discredited and disparaged the Union in the eyes
of its members" in violation of § 8(a)(3). Rocky Mountain Hosp., 289
NLRB No. 138, 130 L.R.R.M. (BNA) 1487, 1489 (1988) (internal quotation
marks omitted).6
The majority has not explained why an employer may shield its
discriminatory conduct from Board scrutiny simply because the acts
of discrimination occur contemporaneously with negotiations. The
majority's decision conflicts with longstanding Fourth Circuit prece-
dent holding that the Board may order an employer to return to its
prior practices even when the union is seeking in negotiations to
encourage the employer to do so. For more than twenty years it has
been the law in this circuit that an employer may not persist in a prac-
tice that has been "appraised as discriminatory in itself" simply
because in a negotiation session the union has sought to dissuade the
employer from persisting in the unlawful practice. E.I. duPont de
Nemours & Co. v. NLRB, 501 F.2d 135, 137 (4th Cir. 1974) (per
curiam) (employer eliminated job-related privileges in represented
units but allowed unrepresented workers to retain privileges; Board
properly may order restoration of privileges and bar employer's nego-
tiator from insisting to impasse on their elimination); NLRB v. Atlan-
tic Int'l Corp., 664 F.2d 1231, 1233 (4th Cir. 1981) (employer
unilaterally reduced wages of union workers at time when employer
was seeking to negotiate a wage reduction; Board properly ordered
_________________________________________________________________
6 Another union, the United Textile Workers, had organized one Field-
crest plant. Fieldcrest granted UTW-represented workers the same
increase it granted unrepresented workers. Thus Fieldcrest may also have
impermissibly favored one union over another, in violation of NLRA
§ 8(a)(2). The Board did not, however, address whether Fieldcrest vio-
lated this section.
34
restoration of wage); cf. NLRB v. Weathercraft Co., 832 F.2d 1229,
1232 (10th Cir. 1987) (Board may order remedy "restoring the eco-
nomic status quo").
As in Atlantic Int'l the Board here simply ordered "a restoration of
the status quo ante." Id. at 1233. Fieldcrest's prior policy was not to
allow any wage disparity to exist between its union and non-union
workers, but here Fieldcrest unilaterally imposed a disparity in an
avowed effort to break the union and to dislodge it from the plants it
had organized. If "deprivation" of a benefit in contravention of an
employers' past policy of granting it "would discourage the choosing
of representation by a union," the Board may order an employer to
grant the benefit, regardless of whether the union is contemporane-
ously seeking the same benefit at the bargaining table. E.I. duPont,
501 F.2d at 136.
In both H.K. Porter and in Clearwater , by contrast, the union was
asking for an unprecedented benefit. In H.K. Porter the union sought
check-off (i.e., automatic deduction of union dues from employee
paychecks), something the employer never had allowed in the past. In
Clearwater the union demanded both check-off and a retroactive
increase in pay. In this case the union simply asked the employer to
follow its existing policy of maintaining equivalent wages between its
union and non-union plants. The distinction between the situation
presented in Clearwater and that in duPont and Atlantic Int'l is so
straightforward that the Clearwater panel did not even cite duPont
and Atlantic Int'l.
Today's judgment on the pay issue also puts us in conflict with the
law of every other circuit that has considered the question. A circuit
split should not be created "without strong cause." Mayer v. Spanel
Int'l Ltd., 51 F.3d 670, 675 (7th Cir.) (Easterbrook, J.), cert. denied,
116 S. Ct. 563 (1995); accord Butler County Memorial Hosp. v.
Heckler, 780 F.2d 352, 357 (3d Cir. 1985). The majority does not
explain why this case is so compelling as to justify a departure from
applicable precedent in this area.
In Eastern Maine the First Circuit upheld a make-whole remedy
identical to the one ordered here. There the employer departed from
past practices and withheld from represented workers a wage increase
35
it granted to unrepresented workers. The employer's conduct was held
to violate NLRA § 8(a)(3) because the employer created the wage dis-
parity with the intent of discouraging union membership. Eastern
Maine, 658 F.2d at 9-10. The First Circuit expressly rejected the
employer's defense -- identical to the defense asserted here -- "that
it legitimately withheld the wage increase as an economic weapon to
improve its bargaining position." Id."[A] make whole order [ ] to
remedy a section 8(a)(3) violation [ ] is a standard type remedy in dis-
crimination cases and does not exceed the Board's authority." South
Shore, 630 F.2d at 45 n.7; accord Pegasus Broadcasting of San Juan,
Inc. v. NLRB, 82 F.3d 511, 513 (1st Cir. 1996).
The majority's holding conflicts not only with the law of the First
Circuit but also with the law of the Seventh, the Sixth, and the District
of Columbia Circuits. In NLRB v. Thill, Inc., 980 F.2d 1137 (7th Cir.
1992), the employer made a pay increase retroactive for its unrepre-
sented workers but refused to do so for its represented workers. The
Board found that the employer violated § 8(a)(3), and the Seventh
Circuit enforced the Board's make-whole order. Judge Posner said for
the court that the "workers' entitlement to backpay cannot be
doubted" even though the union had sought to negotiate wage
increase retroactivity. Thill, 980 F.2d at 1141. Indeed, the court held
that workers were entitled to be paid interest on the increase. Id.7 In
Peabody Coal, 725 F.2d at 366, the Sixth Circuit expressly followed
the Eastern Maine rule and enforced the Board's make-whole rem-
edy. And the District of Columbia Circuit held, in an opinion written
by Judge Mikva, that where a wage increase given to unrepresented
workers and denied to represented workers amounted to "a deviation
from accepted prior practice" and the decision to create a wage dis-
parity "was motivated by anti-union animus, [or by] a discriminatory
desire to discourage union membership," the Board may find a
§ 8(a)(3) violation and order the employer to make its union employ-
ees whole by granting them the same increase. Acme Die Casting, 26
F.3d at 165-66.
_________________________________________________________________
7 Graphic Communications Union v. NLRB, 977 F.2d 1168, 1171 (7th
Cir. 1992), upon which the concurring opinion relies, see ante at 22, is
inapposite because that case relates only to an employer's duty to dis-
close financial information to union negotiators. The Board did not find
a § 8(a)(3) violation in that case.
36
The majority's holding on the pay remedy puts us at odds with our
own precedent and with the law of our sister circuits. Accordingly, I
respectfully dissent on that issue. Otherwise, I concur.
37