Leggett & Platt, Inc. v. NLRB ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 2, 2020 Decided February 19, 2021
No. 20-1060
LEGGETT & PLATT, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS,
INTERVENOR
Consolidated with 20-1061, 20-1134
On Petitions for Review and Cross-Application
for Enforcement of Orders of the
National Labor Relations Board
2
A. John Harper III argued the cause for petitioner Leggett
& Platt, Inc. With him on the briefs were Arthur T. Carter and
Arrissa K. Meyer.
Aaron B. Solem argued the cause for petitioner Keith
Purvis. With him on the brief was Glenn M. Taubman.
Barbara A. Sheehy, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Peter B. Robb, General Counsel, Ruth E. Burdick, Acting
Deputy Associate General Counsel, David S. Habenstreit,
Assistant General Counsel, and Elizabeth Heaney, Supervisory
Attorney.
Before: SRINIVASAN, Chief Judge, RAO, Circuit Judge,
and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Manufacturer Leggett &
Platt, Inc. (“employer” or “company”) petitions for review of
NLRB orders which concluded, among other things, that
employer had committed an unfair labor practice (“ULP”) by
withdrawing recognition from its employees’ union based on a
petition signed by a majority of the bargaining unit members
seeking a withdrawal of recognition. The Board deemed this
withdrawal of recognition unfair because of a later petition
circulated by the union to the opposite effect, which the union
had not disclosed to the employer at the time of the withdrawal
of recognition. In reaching this decision, the Board expressly
refused to retroactively apply a Board precedent ruling that
employers engaging in the same conduct under similar
circumstances do not commit unfair labor practices. In its
precedential decision, the Board expressly determined that the
3
rule should be applied retroactively. Before the court,
petitioner contends that the Board’s decision departing from its
precedent in this case was arbitrary and capricious. Because
we agree, we grant in large part the employer’s petition, though
we deny as to a secondary ULP and deny the Board’s cross-
application for enforcement.
I. BACKGROUND
A. The Withdrawal of Recognition ULP
Petitioner is a manufacturer of household and commercial
furniture. It operates a facility in Winchester, Kentucky, for
the manufacture of innerspring mattresses in which it employs
approximately 250 members of the bargaining unit involved in
the present proceeding. At the time of the events underlying
this proceeding, the bargaining unit employees were
represented by the International Association of Machinists and
Aerospace Workers, Local Lodge 619 (“union”). The
employer’s recognition of the unit had been embodied in a
successive line of collective bargaining agreements (“CBA”)
beginning in September of 1965. At the times relevant to this
controversy, the current CBA was effective from February 28,
2014, to February 28, 2017.
In December of 2016, Keith Purvis, a unit employee who
has filed a separate petition now joined in this same
proceeding, began circulating among the bargaining unit
members a petition seeking decertification of the union. The
operative language of the petition read: “The undersigned
employees of Leggett and Platt #002 do not want to be
represented by IAM 619 hereafter referred to as ‘union’.” App.
245-64. Other employees assisted Purvis in the circulation of
the petition. By December 19, a majority of the bargaining unit
members had signed the petition, and Purvis presented it to the
4
plant’s general manager, Chuck Denisio. Management
employees of Leggett & Platt compared the signatures on the
petition with employment records to verify the authenticity of
the petition and confirmed that it was signed by a majority of
the bargaining unit employees.
Based on that determination, on January 11, the company
notified the union by mail that it had received evidence from a
majority of the bargaining unit that they no longer wished to be
represented by the union. Relying on the petition signed by a
majority of the bargaining unit employees, the company
advised the union of its intention to withdraw recognition and
that it did not intend to negotiate a successor agreement. It did,
however, express its intent to comply with the existing
collective bargaining agreement through the scheduled
expiration date.
On January 12, 2017, the company notified the bargaining
unit employees of its intention to withdraw recognition
effective March 1 and that it did not intend to bargain over a
successor agreement. In its communication to employees, the
company also notified them that it would effect several changes
after the expiration of the CBA, including a wage increase,
personal paid time off, lower health insurance deductibles,
shorter periods of time to accrue vacation, implementation of a
stock bonus plan, participation in a 401K plan, and changes in
dental and vision insurance providers and to disability
insurance benefits. As it had promised, the employer
unilaterally withdrew recognition and effectuated its
announced changes in the terms of employment on March 1.
At the same time that the above events were unfolding, the
union began collecting signatures for a counterpetition
supporting the continuance of recognition of the union’s
representation. The union’s efforts began with an open house
5
at the union hall on January 18, 2017, and continued through
February 28, the scheduled expiration date of the CBA.
Eventually the union did obtain the signatures of a majority of
the bargaining unit employees. This included 28 “cross-over”
signers, that is, employees who signed both petitions. The
employer disputes the validity of some of the signatures,
contending that the open house had included sign-up sheets that
did not specify that they were part of the petition. Nonetheless,
a majority of employee signatures does appear on it. A critical
fact underlying the current litigation is that the union never
informed the management of the existence of the counter-
petition or its claim to a counter-majority. Instead, it only
informed Leggett & Platt by correspondence dated February
21, 2017, that: “By receipt of your letter dated January 11,
2017, you claim a majority of IAM represented employees no
longer wish to be represented by the IAM. We do not believe
your claim.” App. 326.
The only other paragraph of the letter demanded
bargaining but provided no further facts related to the disputed
majority. The union filed a ULP complaint on March 1, still
not having informed the employer of its counter-petition and
claimed counter-majority.
B. The Aiding ULP
While the proceedings relating to the first ULP were
ongoing, Purvis and other employees circulated a second
petition for decertification. Although that petition is being held
in abeyance by the Board pending resolution of this
proceeding, the union filed a complaint for an alleged ULP
arising out of the circulation of the second petition. The second
ULP involves an event in April when Steven Day, Human
Resources Manager for employer, allegedly assisted in the
circulation of the second decertification petition. According to
6
the allegations and the Board’s findings, a newly hired
bargaining unit employee, Cordell Roseberry, reported to work
on his first day at Leggett & Platt on April 5. Roseberry
testified that Steven Day “pointed at me and then he pointed at
Purvis then he more like motioned me to walk over to Purvis.”
Roseberry did. Purvis asked him if he had signed any kind of
petition and then asked him to meet him at his truck after work.
Day offered unrelated reasons for the gestures involved on
the occasion, testifying that he directed the new employee to
Purvis so that Purvis could introduce him to his new supervisor.
The Administrative Law Judge hearing this case did not find
him credible, particularly because Purvis never introduced
Roseberry to his new supervisor. The union contended and the
Board found that the employer had committed another unfair
labor practice by “actively soliciting, encouraging, promoting,
or providing assistance in the initiation, signing, or filing of an
employee petition seeking to decertify the bargaining
representative.” Enter. Leasing Co. of Fla. v. NLRB, 831 F.3d
534, 545 (D.C. Cir. 2016).
C. The Proceedings
After the union filed unfair labor practice charges against
the employer, the General Counsel of the NLRB issued a
complaint and notice of hearing on April 11, 2017, regarding
the withdrawal of recognition and the subsequent changes in
employment conditions. Later the General Counsel filed an
amended complaint including both alleged ULPs. The case
was assigned to an Administrative Law Judge, who conducted
a hearing July 24-26, 2017. Purvis and other bargaining unit
employees moved to intervene. The ALJ denied the
intervention motion. This denial is the subject of Purvis’s
separate petition before this court.
7
The ALJ concluded that the employer had committed a
ULP in violation of sections 8(a)(5) and (1) of the National
Labor Relations Act by withdrawing recognition and thereafter
changing conditions of employment without submitting to
bargaining with the union. In so doing, the ALJ followed
Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001),
which explained that when an employer doubts that a union
continues to enjoy majority support among employees, “Board
elections are the preferred means of testing employees’
support.” 333 NLRB 717, 725-26 (2001). Absent a Board
election conclusively showing a loss of majority support, the
company withdraws recognition of the union only “at its peril.”
Id. at 725. Following Levitz and Parkwood Developmental
Center, 347 NLRB 974 (2006), the ALJ ruled that Leggett &
Platt had committed an unfair labor practice, and that it further
violated section 8(a)(1) of the Act when the Human Resources
Manager directed a new employee toward petitioner Purvis.
The ALJ then ordered the remedies including a bargaining
order requiring Leggett & Platt to recognize the union without
holding an election, as Purvis and other employees had sought.
Thereafter, the Board affirmed the ALJ’s findings and
adopted essentially the same remedies, including the
affirmative bargaining order. Leggett & Platt, Inc., 367 NLRB
No. 51, slip op. at 4-5 (2018). On January 8, 2019, Leggett
petitioned this court for review of the Board decision. While
that petition was pending, on July 3, 2019, the Board issued a
decision in a parallel case, Johnson Controls, 368 NLRB No.
20, which also dealt with the withdrawal of recognition by an
employer based on petition signatures. The Board in Johnson
Controls overruled the Levitz-Parkwood rule upon which the
ALJ had relied, criticizing that rule’s facilitation of “the
union’s ability to gather its counter-evidence secretly, together
with the ‘peril’ rule of Levitz.” Johnson Controls, supra, slip
op. at 2. In particular, the Board held “that proof of an
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incumbent union’s actual loss of majority
support . . . conclusively rebuts the union’s presumptive
continuing majority status when the contract expires.” Id. The
union may no longer secretly gather signatures on a
counterpetition to reestablish majority status; the only way it
may reestablish majority status is “by filing a petition for a
Board election within 45 days from the date the employer gives
notice of an anticipatory withdrawal of recognition.” Id.
Crucially for this case, the Board also announced that its new
procedures would apply retroactively “to all pending cases in
whatever stage.” Id. at 13 (citation omitted). At that point, at
the Board’s request, we remanded this case to the Board on
August 7, 2019, for reconsideration in light of Johnson
Controls. After remand, the Board determined that it would
not apply Johnson Controls retroactively in this case and
reaffirmed its original decision imposing the bargaining order.
After unsuccessfully seeking reconsideration from the Board,
Leggett & Platt filed the present petition.
II. ANALYSIS
A. The Withdrawal of Recognition
The major issue in Leggett & Platt’s petition for review
addresses the Board’s refusal to retroactively apply its
precedent in Johnson Controls, supra, to this case. In Johnson
Controls, as in the present case, an employer was accused of an
unfair labor practice for asserting an anticipatory withdrawal of
recognition when it had a decertification petition by bargain
unit employees in hand. An anticipatory withdrawal occurs
when the employer announces prior to the expiration of a CBA
that it will not continue to recognize the union and will not
bargain for a renewal of the CBA relationship. In Johnson
Controls, as in the present case, the union had obtained a
counter-petition with sufficient cross-signers to create a
9
majority opposing decertification. In each case, the union did
not inform the employer of the existence of the second petition.
Consistent with then-existing Board precedent, the Board was
asked in each case to find an unfair labor practice by the
employer despite the union having concealed its supposed
majority until after filing the ULP complaint. In Johnson
Controls, the Board, considering Judge Henderson’s criticism
of its prior practices in Scomas of Sausalito, LLC v. NLRB, 849
F.3d 1147, 1158-59 (D.C. Cir. 2017) (Henderson, J.,
concurring), announced a new standard applicable to this type
of anticipatory withdrawal.1 The Board specified that in cases
such as this, the employer may rely on the majority signatories
in the petition it has in hand to proceed to withdrawal.
Most specifically, the Board stated that “if, within a
reasonable time before an existing collective-bargaining
agreement expires, an employer receives evidence that the
union has lost majority status, the employer may inform the
union that it will withdraw recognition when the contract
expires, and it may refuse to bargain or suspend bargaining for
a successor contract.” Johnson Controls, supra, slip op. at 9.
The Board noted that the union then had several options,
including “if the union wishes to reestablish its majority status,
it must file an election petition.” Id.
Of particular relevance to the employer’s argument in this
case, the Board expressly projected retroactive application of
1
The Board in Johnson Controls characterized the majority opinion
in Scomas as criticizing the Board’s practice, but the Board relied
primarily on Judge Henderson’s separate concurrence in its order.
See, e.g., Johnson Controls, supra, slip op. at 8 (citing Scomas, 849
F.3d at 1160 (Henderson, J., concurring)). Judge Henderson
criticized Levitz, but the court forthrightly applied it, even while
vacating the Board’s bargaining order. Compare Scomas, 849 F.3d
at 1155 with id. at 1158-60 (Henderson, J., concurring).
10
the “new rule.” The Board observed that its “usual practice is
to apply new policies and standards retroactively to all pending
cases in whatever stage, unless retroactive application would
work a manifest injustice.” Id. at 13 (internal punctuation and
citations omitted). The Board then expressly declared that
“applying the rules adopted here retroactively and dismissing
the complaint would not work a manifest injustice.” Id.
Briefly put, the employer argues that the Board’s refusal to
apply the rule adopted in Johnson Controls to the present case
is erroneous, arbitrary, and capricious. We agree.
Ordinarily, when this court undertakes to determine
whether retroactive application of a new rule that an agency
produced in adjudication is appropriate, we undertake a
balancing of the effects of retroactive application “against the
mischief of producing a result which is contrary to a statutory
design or to legal and equitable principles.” SEC v. Chenery
Corp., 332 U.S. 194, 203 (1947). In this case, the Board has
done the heavy lifting for us, by determining itself that it must
apply the rule “retroactively to all pending cases in whatever
stage, unless retroactive application would work a manifest
injustice.” Johnson Controls, supra, slip op. at 13 (internal
quotations omitted). Our duty, then, becomes to apply the
usual standard of administrative review, that is we must
determine whether the Board’s action was arbitrary or
capricious. It was.
Courts have long recognized that “any agency’s
unexplained departure from prior agency determinations is
inherently arbitrary and capricious in violation of APA
§ 706(2)(A).” Nat’l Treasury Emps. Union v. Fed. Labor
Relations Auth., 404 F.3d 454, 457 (D.C. Cir. 2005) (internal
quotations omitted). Therefore, an agency’s “failure to follow
its own well-established precedent without explanation is the
very essence of arbitrariness.” Id. at 457-58. Clearly, the
11
Board has departed from its prior established precedent by not
applying the Johnson Controls standard retroactively to this
case—Johnson Controls and this case are factually
indistinguishable. We need then only determine in APA terms
whether that departure is unexplained or, following the Board’s
own language in Johnson Controls, whether it would work a
“manifest injustice.”
We note that in the present case the Board’s decision and
order begins by acknowledging that this circuit has
disapproved the routine use of bargaining orders like the one in
this case. The Board further acknowledges that such an order
must be justified by a reasoned analysis that
includes an explicit balancing of three
considerations: (1) the employees’ [section] 7
rights; (2) whether other purposes of the Act
override the rights of employees to choose their
bargaining representatives; and (3) whether
alternative remedies are adequate to remedy the
violations of the Act.
Leggett & Platt, Inc., supra, slip op. at 1 (quoting Vincent
Indus. Plastics v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000)).
Therefore, for the Board’s bargaining order to be upheld, the
Board must have justified not only a reasoned departure from
its own precedent, but also its choice of a remedy punishing the
employees by depriving them of their right to choose their own
representatives because of an allegedly unfair labor practice on
the part of their employers. The Board fails in both
undertakings.
Briefly reviewing Johnson Controls, the Board in that case
considered facts directly parallel to the ones before it in this.
That is, the employer had in hand a petition evidencing
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majority support for decertification. The union thereafter
possessed, but concealed, a petition indicating majority
opposition to decertification. In Johnson Controls, the Board
announced a new approach to anticipatory derecognition in
cases with factual backgrounds like Johnson Controls and this
case. Under the new approach, if a union loses majority
support within 90 days of contract expiration, it can only
reestablish majority support through an election or petition
within 45 days. Supra, slip op. at 2. Johnson Controls stated
that it would apply retroactively, so we remanded this case, at
the NLRB’s request, to allow the Board to determine how
Johnson Controls would apply to this case in the face of its own
decision that Johnson Controls would apply retroactively,
“unless retroactive application would work a manifest
injustice.” Id. at 13.
To determine whether retroactivity would create a
manifest injustice, the Board considers “the reliance of the
parties on preexisting law, the effect of retroactivity on
accomplishment of the purposes of the Act, and any particular
injustice arising from retroactive application.” SNE Enters.,
344 NLRB 673, 673 (2005). Since the Board expressly
recognizes its own consistent practice of retroactively applying
new policy to “all pending cases in whatever stage,” Leggett &
Platt, Inc., supra, slip op. at 2, it appears that the Board has
painted itself into a corner which it can escape only by
demonstrating some manifest injustice. It hasn’t. In discussing
its decision not to apply retroactivity, the Board observes that
in its original decision in this case it had relied on “long-
established existing law under Levitz.” Id. This is hardly
different than any other case as to which retroactive application
is considered. That is, retroactivity of a new policy generally
supposes that the old policy was different. The Board then
supposes that applying the revised policy under Johnson
Controls to this case “would negate the Board’s deliberate
13
determination to the contrary.” Id. Of course it would. But
again, that is what retroactivity is all about.
We then come to what may be the crux of the Board’s real
reasons for not applying Johnson Controls retroactively. The
Board observes that the prior decision imposing the bargaining
order “had been in effect for over [six] months before the
issuance of Johnson Controls, [and] the parties should have
been negotiating for, and perhaps could have reached, a new
collective-bargaining agreement during the intervening
period.” Id. The Board then goes on to observe that reversing
the bargaining order “would not only disrupt the bargaining
relationship of the parties to this case but also incentivize
parties to delay compliance with bargaining orders in the hope
or expectation of a change in the law.” Id. In other words, the
Board’s refusal to follow its usual and express retroactivity
policy will be abandoned to punish the employer for having the
temerity to appeal the original order to this court and to
disincentivize later parties from such exercise of their rights.
The Board has miserably failed to explain how it is a manifest
injustice to recognize the party’s right of appeal. See 29 U.S.C.
§ 160(f) (“Any person aggrieved by a final order of the Board
. . . may obtain a review of such order . . . .”).
With uncharacteristic brevity, the Board also declares that
it has declined to apply Johnson Controls retroactively to this
case for “institutional reasons.” 2 It is not clear how an agency
departing from its controlling precedent escapes the bonds of
the arbitrary and capricious standard by reciting a conclusion
2
The Board argues that the employer never raised to the Board
its argument that the Board failed to adequately specify its
institutional reasons and that we therefore cannot consider the
argument. See 29 U.S.C. § 160(e). The Board’s contention rests on
little more than differences in the phrasing of the argument in the
company’s briefs to this court and those to the Board on rehearing.
14
without explanation. To say that this was an adequate
explanation would gut that standard of all meaning.
Given our conclusion on the retroactivity issue, it is plain
that the Board’s bargaining order cannot stand. While we are
perhaps exercising an excess of consideration for the Board, we
will briefly note that the Board has not successfully
demonstrated how the propriety of the bargaining order in this
case is any different than in any of the numerous cases outlined
in the Board’s own opinion. See Leggett & Platt, Inc., supra,
slip op. at 1 (citing Vincent Indus. Plastics v. NLRB, 209 F.3d
727 (D.C. Cir. 2000); Lee Lumber & Bldg. Material Corp. v.
NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); Exxel/Atmos,
Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994)).
As the Board recognized after that recitation of citations,
for an affirmative bargaining order to survive judicial review,
it must balance three considerations: “(1) the employees’
[Section] 7 rights; (2) whether other purposes of the Act
override the rights of employees to choose their bargaining
representatives; and (3) whether alternative remedies are
adequate to remedy the violations of the Act.” Id. In an
apparent effort to satisfy its need to address those
considerations, the Board states, “(1) An affirmative
bargaining order in this case vindicates the Section 7 right of
employees who have been represented by the Union since
1965.” Id. at 2. This of course does not take the present case
outside the norm. Affirmative bargaining orders in
anticipatory decertification cases presuppose that the
employees have been represented by a union for some period
of time.
Then the Board tells us, “(2) An affirmative bargaining
order serves the purposes and policies of the Act by fostering
meaningful collective bargaining and industrial peace, and by
15
removing the Respondent’s incentive to delay bargaining in the
hope of further discouraging support for the Union.” Id. at 3.
It is not clear how this sentence adds anything to this case not
present in all other parallel cases. And “(3) A cease-and-desist
order alone would be inadequate to remedy the Respondent’s
withdrawal of recognition, refusal to bargain, and unilateral
changes.” Id. Again, the Board is not telling us anything about
this case that would not be true in all cases.
As with the retroactivity issue itself, the Board’s attempt
to justify extraordinary treatment does not come close to taking
it outside the “essence of arbitrariness” stated above.
Therefore, as to the decertification issue, we will grant the
employer’s petition and deny the Board’s cross-application for
enforcement of its orders.
B. The Assisting Issue
Petitioner does not fare so well, nor respondent so poorly,
on this issue as with retroactivity. The employer argues that
the NLRB erred by concluding that Leggett unlawfully aided
Purvis’s second petition for union decertification. An
employer commits an unfair labor practice if it “actively
solicit[s], encourag[es], promot[es], or provid[es] assistance in
the initiation, signing, or filing of an employee petition seeking
to decertify [a] bargaining representative.” Enter. Leasing, 831
F.3d at 545. Anything more than ministerial aid, including
allowing signature collection during work, violates the NLRA.
Id. at 544-45. Leggett does not dispute that if Day actually
directed Roseberry to speak to Purvis to get Roseberry to sign
the decertification petition, it would amount to improper aid.
The only question, then, is whether substantial evidence
supports the NLRB’s finding that Day did direct Roseberry to
Purvis to have Roseberry sign the petition. Substantial
16
evidence is lacking only when, considering the record as a
whole, no reasonable factfinder could have made the same
finding as the agency. Inova Health Sys. v. NLRB, 795 F.3d
68, 80 (D.C. Cir. 2015). Evidentiary review of NLRB findings
is, and is meant to be, highly deferential. Id. We will not
disturb the credibility determinations of an ALJ unless they are
“hopelessly incredible, self-contradictory, or patently
unsupportable.” Wayneview Care Center v. NLRB, 664 F.3d
341, 364 (D.C. Cir. 2011). “Although an ALJ’s credibility
determinations are entitled to significant deference . . . they are
not immune to judicial scrutiny.” Sutter East Bay Hosps. v.
NLRB, 687 F.3d 424, 438 (D.C. Cir. 2012).
Substantial evidence supports the NLRB’s finding. The
ALJ heard testimony from Day and Roseberry as to the events
in question and determined that Roseberry’s testimony was
credible while Day’s was not. The only reason that petitioner
offers that we should disturb that credibility determination is
that the ALJ could have credited both testimonies, as they do
not necessarily conflict. Petitioner is probably correct that
Roseberry could have seen and heard everything to which he
testified, and Day could nevertheless have intended for
Roseberry to meet with Purvis so that Purvis would introduce
Roseberry to his new supervisor. The fact that Purvis never
actually introduced Roseberry to his new supervisor makes that
unlikely. But more importantly, the fact that the ALJ could
have reconciled the two testimonies does not confer an
obligation upon him to do so. Hearing the witnesses in the first
instance, the ALJ believed Roseberry’s testimony but did not
believe Day’s. It is the ALJ’s job to choose which factual
accounts are credible, not ours. We will not disturb the ALJ’s
determination and consequent finding.
We therefore deny employer’s petition as to this issue.
However, as the Board has treated these cases as one
17
throughout and entered a remedial order applicable both to the
erroneous conclusion that the employer had committed an
unfair labor practice with respect to the decertification as well
as the assisting, we cannot grant the cross-application for
enforcement. We therefore grant the employer’s petition in
part and deny it in part. We vacate the remedial order and
remand for the adjudication of an appropriate remedy for the
assisting ULP taken alone.
As to the separate petition of Purvis, we note both that the
Board has wide discretion on intervention, but we do not wish
to make a precedential decision on the standards that might be
applicable since there seems to be no remaining harm from any
error that might have been involved. We dismiss Purvis’s
petition as moot in light of our disposition of Leggett & Platt’s
petition. We further note that the Board has before it
apparently a petition for an election. If that is correct, then it is
difficult to see why the Board, if it is in fact concerned about
the rights to choose representation of employees, does not
simply proceed to order such an election. Be that as it may.
The short conclusion is that employer’s petition is granted in
part and denied in part and the Board’s cross-application is
denied.
So ordered.