Central Transport, Inc., Central Cartage, Co. (jointly “Central”), and Big John Incorporated petition this Court for review of an order issued by the National Labor Relations Board. The Board found that Central and Big John committed four violations of the National Labor Relations Act (“the Act”). 29 U.S.C. §§ 151-160. The Board filed a cross-petition for enforcement of the order. For the following reasons, we enforce the order as to Big John, and enforce in part and vacate in part the order against Central.
I.
Central Transport and Central Cartage are subsidiaries of Centra Inc. Both are trucking companies. Central Transport ships freight in interstate commerce between cities to shipping terminals. After the freight is delivered to the terminals, Central Cartage delivers it to intra-city locations. Central leased mechanics from Big John, a personnel corporation, to maintain trucks at its Roanoke, Indiana terminal. Central Transport and Central Cartage have stipulated that they are a single employer for purposes of this litigation.
Central leased three new mechanics from Big John in late 1987 and early 1988. Ray Carr, a Central employee and the Roanoke shop manager, hired and supervised the mechanics. Big John was paid on a cost-plus basis: it paid the leased employees and withheld the appropriate taxes; it passed these costs to Central and received a fixed percentage in compensation. When they were hired, the terminal mechanics were not represented by a union. Ray Carr informed each new mechanic that the shop was non-union and that the shop would close if employees brought in a union. Five mechanics worked for Central at the Roanoke terminal in April 1989. Three of them signed union authorization cards with Local 414 of the Chauffeurs, Teamsters & Helpers Union, which is affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“the Union”). The Union’s business agent, Michael Hinton, sent a letter to “Mr. Ray Carr, Big John, Inc.” on April 18, 1989, informing him of the Union’s election and requesting recognition. Hinton Letter, Government Exhibit (G. Ex.) 7. The Union conducted an election pursuant to NLRB regulations on April 19, and the mechanics elected the Union by a vote of 3 to 2. On April 21, 1989, the Union petitioned the Board for certification of its representation of the mechanics. The Board issued the certification on May 30, 1989. Big John was the only employer named in the petition and the Board’s Certification of Representation. G. Exs. 3(a), (b), & (c). Central was not made a party to the election and certification proceedings.
After Carr received Hinton’s letter, he asked mechanics Bell and Murdock whether they signed union authorization cards. Both falsely denied signing the cards. The terminal manager, Jim Bowen, questioned mechanic Melton. Melton was the union election observer. Bowen asked Melton if he voted for the Union, and to identify the *1183 mechanics who did. After the election, Carr told mechanic Bell that the shop would close because the employees elected to have union representation.
On July 1, 1989, Hinton wrote to John Anger, Big John’s President, to inform him of the Union’s certification by the Board and to arrange a meeting. On July 14, 1989, Hinton met with Anger to discuss the terms of the mechanics’ collective bargaining agreement. Hinton gave Anger a copy of the Union’s proposal for pension and welfare benefits, the Uniform Indiana Automotive Maintenance Agreement (the “blue book”). The blue book sets forth the agreement reached between the Indiana Conference of Teamsters and the Indiana Motor Carriers Labor Relations Association. Hinton told Anger that the Union could agree to a wage rate lower than that given in the blue book and, during the administrative proceedings, the Board found that Hinton also informed Anger that all the elements of the Union’s proposal were negotiable.
Central Transport, Inc. v. NLRB,
Anger informed Hinton that he needed to discuss the Union’s proposals with Central because Central would be responsible for any increase in labor costs. Anger discussed the proposal with Central Vice President Dennis Toca. According to Toca and Anger’s calculations, the expanded benefits the Union requested would increase the cost of operating the Roanoke terminal $200 per week, per man. On May 31,1989, Toca wrote Anger to warn him that Central would not absorb cost increases due to the unionization. On August 17, 1989, Toca wrote Anger another letter:
We are experiencing a severe downturn in overall business in both the truckload and LTL areas. Consequently, we are looking to keep costs in line and cut whenever necessary.
Therefore, we cannot agree to your request for $200.00 per week per man. We will be forced to discontinue using Big John Inc. in Ft. Wayne effective September 1, 1989 and will undoubtedly absorb the work in other shops in an effort to keep costs in line.
Toca Letter to Anger of 8/17/93, G. Ex. 5. Neither Big John nor Central made counteroffers to the Union and there were no negotiations after the initial meeting between Anger and Hinton. Central closed the terminal on September 1, and mechanics Bell, Mur-dock, and Melton (the mechanics who voted for the Union) were laid off. One mechanic had already left Roanoke, and the fifth was transferred to another terminal.
Hinton, on behalf of the Union, contacted Anger on September 8, 1989 to request bargaining over the effects of the closure of the terminal. On October 8, Anger informed Hinton that he would be unavailable to meet before October 18. The work performed by the Roanoke facility was transferred to a new terminal in Kokomo, Indiana. On October 26, 1989 and in February 1990, Central contacted the three laid-off mechanics directly to offer them jobs at different facilities.
The Union filed separate unfair labor practice charges against Big John and Central. See Board Consolidation Order, Petitioners’ Appendix at 19-20. On October 2, 1989, the charges were amended to allege that Big John and Central were joint employers. On November 13, 1989, the Regional Director of the Board ruled that Big John and Central were joint employers, consolidated the charges against them, and issued a complaint. Id. The complaint charged Big John and Central with unlawful interrogation of and threats to employees, unlawful discharge or layoff of employees, and unlawful refusal to bargain in good faith, violations of Sections 8(a)(1), (3), and (5) of the Act. 29 U.S.C. §§ 158(a)(1), (3), & (5). An administrative law judge (ALJ) heard the consolidated cases on March 4, 5, and 6, 1991.
The ALJ determined that Central employees Carr and Bowen improperly interrogated employees Bell, Murdock, and Melton about their support for, and involvement in, the Union election. The ALJ found that these interrogations violated Section 8(a)(1) of the Act. ALJ op. at *5. The ALJ also found that Carr threatened mechanics Berger and *1184 Bell with shop closure if the Union won the election in violation of Section 8(a)(1). Id.
The ALJ also ruled that as joint employers, Big John and Central faded to negotiate in good faith for a collective bargaining agreement with the mechanics and over the effects of the closure of the terminal. He held that these failures violated Sections 8(a)(1) and (5). The ALJ also rejected the employers’ contention that the decision to close the terminal was economically motivated and forced by a Union ultimatum on benefits. Id. at *5-7. He found the closing was motivated by anti-union animus, and that Central’s decision to reallocate work to other facilities and the effects of. the closure were mandatory subjects for bargaining. Id. at *7. The ALJ held that the layoffs violated Section 8(a)(3) because they were retaliatory. Additionally, the ALJ found that bypassing the Union’s request for effects bargaining and contacting the laid off employees directly violated Sections 8(a)(1) and (5).
The ALJ imposed a series of remedies to correct the employers’ violations. For the unlawful interrogations and threats, the ALJ ordered the employers to cease and desist, and to post an appropriate notice to employees. To remedy the retaliatory terminal closing and layoffs, the ALJ ordered Central to reopen its Roanoke terminal and to reinstate (with back pay) the three laid off mechanics. To remedy Big John and Central’s failure to bargain in good faith, he ordered the employers to bargain in good faith and to post a notice. ALJ op. at *9.
The Board affirmed the ALJ’s rulings. It rejected Central’s claim that the Union and the Board’s failure to join Central in the certification proceedings barred a finding that it was required to bargain with the Union. Central contended that the ALJ’s finding that it and Big John are joint employers violates due process because Central had no notice of the joint-employer allegation until the Union filed its amended unfair labor practice charge in October 1989. Other than a minor amendment to the recommended order, the Board affirmed the ALJ’s order. Board op. at *1-2. Big John and Central petition this court for review of the Board’s order and the Board seeks enforcement.
II. Analysis
Standard of Review
We have jurisdiction to consider the parties’ petitions under 29 U.S.C. §§ 160(e), (f).
NLRB v. Joe B. Foods, Inc.,
A. Central’s Joint Employer Status
The focus of Central and Big John’s petition for review of the Board’s order is the Board’s determination that they are joint employers. Central argued in the administrative proceedings and maintains here that the Union and the Board were precluded from asserting a joint employer relationship by the decisions in
Alaska Roughnecks & Drillers Ass’n v. NLRB,
Certification is the “final and effective action” and the “conclusive act of decision” in the Board’s determination of the parties for collective bargaining.
Inland Empire Dist. Council v. Millis,
Like this case,
Alaska Roughnecks
involved leased employees and the lessee’s refusal to bargain with a union representing the leased employees. Mobil Oil Company operated an offshore oil drilling platform and leased employees to operate the platform from Santa Fe Drilling Company.
The Alaska Roughnecks and Drillers Association (“the Roughnecks”) conducted an organization campaign aimed at all Santa Fe employees in Alaska. The Roughnecks filed two representation petitions with the Board. The petition at issue named only Santa Fe as the employer. Santa Fe received notice of and participated in the Board’s certification proceedings. Id. at 734. The Roughnecks stipulated at the certification hearing that Santa Fe was the employer, and the Regional Director accepted the stipulation. No claim was made that Mobil was the employer or that Santa Fe and Mobil were joint employers. Id. The Board certified the Roughnecks as the bargaining representative for the employees on Mobil’s drilling platform. Santa Fe notified Mobil that it would require more money if collective bargaining with the Roughnecks resulted in a wage and benefit increase.
Mobil decided to solicit new bids (including one from Santa Fe) for the platform operations, anticipating that collective bargaining would increase its labor costs with Santa Fe. Another company’s bid was lower than Santa Fe’s, and Mobil notified Santa Fe that it was cancelling their contract. It contracted with the competitor.
Mobil petitioned the Ninth Circuit for review. The court noted that there was no evidence that Mobil was guilty of anti-union bias, and that the basis of the Board’s ruling was its determination that Mobil was a joint employer. Mobil contended that it could not be required to bargain with the Roughnecks because: (1) it had not received an opportunity to participate in the certification proceeding, (2) it had not received notice or an opportunity to challenge the joint employer finding, and (3) because the Roughnecks had not requested bargaining with Mobil until after it terminated its contract with Santa Fe. Id. at 735. The Ninth Circuit agreed.
Resting its decision on due process considerations, the court held that because Mobil was not given notice and a timely opportuni
*1186
ty to challenge the Board’s determination that it was a joint employer, Mobil was not obligated to bargain with the Roughnecks.
Alaska Roughnecks,
We find the Ninth Circuit’s reasoning persuasive, and adopt its sound approach. We believe, however, that it is the Act, not the Constitution, which requires that the Board be bound by its determinations in certification proceedings. The regulations that require the identification of the employer in the certification petition are mandatory.
See
29 C.F.R. §§ 102.61(e), 102.63. Moreover, as the Ninth Circuit noted, petitions for certification may be amended to include joint employers.
Alaska Roughnecks,
In this case, as in Alaska Roughnecks, the Union was aware of the relationships between Central and Big John when it commenced the representation proceedings. Big John was the only employer notified of the proceedings by the Board, and only Anger (its President) participated. Anger signed off as the employer on all of the Board’s documentation. The Union did not allege that Central was a joint employer until after the terminal was closed, the employees were laid off, and the first unfair labor practice charge was levied. We agree with the Ninth Circuit that this notice simply came to late to permit the Board to impose a duty to bargain upon Central.
We are not persuaded by the Board’s arguments that a stipulation entered into by the parties in the administrative proceeding, and the union’s presentation of authorization cards to Central manager Ray Carr prior to the certification proceedings, justify a finding that Central is a joint employer. Board op. at *1. Central stipulated that the facts surrounding the operation of the Roanoke terminal support a finding that Central and Big John were joint employers of the mechanics, but expressly preserved its argument that the Union and the Board were precluded from asserting the relationship under Alaska Roughnecks. Therefore, the factual stipulation has no significance for our evaluation of the impact of the certification proceedings.
The Board also argues, relying in part upon
Alaska Roughnecks,
that the letter Hinton sent to Ray Carr at Big John — which informed him that a majority of the mechanics signed union authorization cards and demanded recognition — was sufficient to notify Central that it was deemed a joint employer with bargaining responsibilities. We disagree. First, the letter identified Carr as a Big John employee.
See
Hinton Letter of 4/18/89, Government Exhibit (G. Ex.) 7 to Administrative Hearing (“Mr. Ray Carr, Big John, Inc.”). Although this letter might make Central aware of the Union’s organizing activities, it would not notify Central that it was deemed a relevant employer. Indeed, it would have the opposite effect because Carr was identified as a Big John employee. In
Alaska Roughnecks,
the court found that Mobil’s awareness of the union’s organizing activity did not constitute adequate notice of
*1187
its joint-employer status when the union did not demand recognition until after certification and the termination of the Santa Fe contract.
The facts presented here are similar. First, the Union did not inform Central that it deemed Central a joint employer until after the contract with Big John was canceled and it filed charges with the Board. Second, although
Alaska Roughnecks
considered
Ace-Alkire Freight Lines, Inc. v. NLRB,
In this case, however, we find that because (1) Hinton requested recognition but addressed Carr as an employee of Big John, and (2) the subsequent formal representation proceedings did not include Central, any notice of joint employer status that Hinton’s letter might have provided was abrogated. We also reject the Board’s position that because Anger kept Central apprised of the Union’s demands in negotiations, Central intervened in the negotiations. In
Alaska Roughnecks,
Santa Fe notified Mobil that its labor costs might increase as a result of collective bargaining, and Mobil found another source of employees.
Finally, the Board’s citation of
American Air Filter Co.,
The other case upon which the Board relies in its opinion below is also unavailing.
*1188
In
U.S. Pipe & Foundry,
B. Big John’s Refusal to Bargain
Big John does not raise separate objections to the Board’s finding that it unlawfully refused to bargain with the Union. Instead, both employers raise joint arguments and contend that the Board’s holding was “clear error” because there was no refusal to bargain. Because Central had no duty to bargain, we will consider these joint arguments only as they pertain to Big John.
Under Section 8(a)(5) of the Act, it is an unfair labor practice for an employer to refuse to bargain with employees. 29 U.S.C. § 158(a)(5);
see NLRB v. Overnite Transp. Co.,
Big John contends that the Union refused to bargain, and failed to properly request bargaining, so its failure to bargain cannot be unlawful. It asserts that Hinton’s position on employee benefits was inflexible, and that his demand illustrates that the Union’s bargaining with Big John was not in good faith. After Anger informed Hinton that Central would close the Roanoke terminal due to economic necessity, Anger and Hinton discussed the situation on the phone. Big John argues that Hinton’s failure to demand a face-to-face bargaining session at that time illustrates that the Union never requested bargaining over the closure, and effectively waived the right to bargain. The waiver is further evidenced by the Union’s attempt to arrange a bargaining meeting through written correspondence rather than over the telephone. Petitioners’ Brief at 39. If the Union really wanted to bargain, Big John argues, Hinton would have telephoned, not written letters. Moreover, the “communications from the Union did not convey a tone of urgency or notify Big John of the existence of an immediate concern on behalf of any unit members.” Id. at 40. Therefore, Big John argues, its direct contacts with employees about other available positions and its failure to respond to Anger’s written requests for bargaining were justified.
The ALJ saw the events a little differently, and we believe his conclusions are supported by substantial evidence in the record. An employer has a duty to bargain over the effects of a closure
in a meaningful manner and at a meaningful time. The closure cannot be a “fait accompli” which would make good-faith bargaining “futile or impossible.” The determination of whether an employer has provided such meaningful and timely notice is essentially one of fact, and the Board’s findings in this regard are to be accepted if supported by substantial evidence.
Emsing’s Supermarket,
Given the tone of Toca’s letter (quoted
supra
at 4), Hinton’s persistent requests for bargaining, and the timing of Big John’s contacts with the laid-off mechanics, we believe the ALJ’s determination that Big John refused to bargain in good faith is amply supported by the record. This is the sort of evaluation “that Congress committed to the expertise of the Board and that generally deserves our deference.”
Emsing’s Supermarket,
C. Non-Bargaining Violations of the Act
We also find that the remainder of the Board’s findings are correct, and the corresponding sections of its order should be enforced. Central’s lack of formal status as a joint employer does not excuse the threats to, and interrogations of its employees, nor the retaliatory layoffs and closing of the Roanoke terminal. The NLRA prohibits any employer (whose activities affect interstate commerce) from interfering with, coercing, or in any way restraining employees from exercising their rights to organize and select bargaining representatives, regardless of whether the employees are represented by a union. 29 U.S.C. § 157. Indeed, the Act is designed in part to protect employees from these actions when they are attempting to select a bargaining representative.
Threatening employees with shop closure or discharge, or coercively interrogating them to discourage union activities violates Section 8(a)(1) of the Act. 29 U.S.U § 158(a)(1). Any conduct which interferes with, restrains, or coerces employees in the exercise of their rights to form, join, or assist labor organizations is prohibited.
Id.
Section 8(a)(3) prohibits business closings motivated by anti-union animus.
See First National Maintenance Corp. v. NLRB,
1. Interrogations
Carr admitted at the administrative hearing that he asked employees if they signed authorization cards, and Central does not contest that Bowen questioned Melton about the election. ALJ op. at *4, *5. To determine whether questioning about union activities violates the Act, we ask “whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act.”
Sunnyvale Medical Clinic,
2. Threats
The ALJ found, and the Board affirmed, that the employees were threatened with terminal closure if the union was elected, another violation of § 8(a)(1). The employers raise three challenges to the ALJ’s determination. They assert that Carr’s testimony was more credible than the mechanics’ testimony, that his statements were not threats because they merely expressed Carr’s opinions, and that the statements could not be attributed to them because Carr did not have authority to close the terminal.
Carr admitted that he told mechanic Berger that the terminal would probably close because of the Union’s election in 1989. The ALJ found that Carr also told the mechanics when they were hired in 1987 that union representation would result in the terminal’s closure. The 1987 remarks fall outside the Act’s six-month period of limitations. See 29 U.S.C. § 160(b). Nevertheless, the ALJ properly considered the remarks as evidence . of anti-union bias. The ALJ also found that before the election, Carr told mechanic Bell that the terminal might “possibly” close if the Union won.
Central contests these findings, primarily arguing that Carr was a more credible witness than the mechanics who testified. But we will not overturn an ALJ’s credibility determinations absent extraordinary circumstances. These include a clear showing of bias by the ALJ, utter disregard for uncontroverted sworn testimony, or acceptance of testimony which on its face is incredible.
NLRB v. Advance Transp. Co.,
The employers also challenge the determination that Carr’s comments to Bell in 1989 were threats because they were merely a “man-to-man confidence.”
Id.
at 23. They contend that because these statements were merely statements of opinion based on Carr’s “gut feeling,” they cannot be threats.
Id.
at 23-24. But predictions of the economic consequences of union activity must be “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at_”
Wiljef Transp., Inc. v. NLRB,
Finally, the employers argue that Carr’s threats cannot be imputed to them because Carr had no control over the decision to close the terminal. Because the employees knew Carr was not in a position to authorize the closure of the terminal, the mechanics could not have construed his opinions as threats. This assertion is nonsense. We have held that supervisors’ threats violate the Act, just as effectively as threats from the CEO.
See Northern Wire Corp. v. NLRB,
S. Retaliatory Layoffs
An employer may not discharge an employee because of. union activity. 29 U.S.C. § 168(a)(3);
NLRB v. Transportation Management Corp.,
Central argues that it decided to close the terminal because the Union’s inflexible bargaining position “was simply unacceptable to Central.” Petitioners’ Brief at 27. It further contends that the ALJ’s acceptance of Union Representative Hinton’s version of the Union’s bargaining position was clearly erroneous.
Id.
But, as we have noted, credibility determinations are left to the ALJ absent extraordinary consequences. Both parties presented versions of the course of bargaining, and Hinton’s version was not inherently incredible.
See Advance Transp. Co.,
Statements by Carr and other Central managers reflected a history of anti-union bias. Further, the layoffs and terminal closure occurred within a month and a half of the Union’s certification and the commencement of bargaining. Only employees who voted for the union were laid off. The ALJ found that the terminal’s work was simply transferred elsewhere, and that the mechanics were busy until the closing. ALJ op. at *5. The closing fulfilled Carr’s prediction of the consequences of unionization. We believe these facts are sufficient to support the ALJ’s conclusion that the mechanics’ union activities motivated the closure and layoffs in violation of the Act.
Conclusion
For the foregoing reasons, the Board’s cross-petition for enforcement of its order to remedy Big John’s and Central’s violations of the Act is granted, except for those portions which pertain to Central’s refusal to bargain. We vacate that portion of the order which requires Central to bargain with the Union. See Order, §§ 1(d), 2(d), ALJ op. at *9, *10. We also strike the portion of the Notice to *1192 Employees affirming Central’s duty to bargain. See Notice to Employees, Board op. at *2. Of course, if the Union becomes certified as the representative of Central’s employees, Central is obligated by .the Act to bargain in good faith. The remainder of the relief afforded by the Board’s order is appropriate.
Petition for Review Granted in Part; Denied in Part.
Cross-Application for Enforcement Granted in Part; Denied in Part.
Notes
. An employer who fails to raise its objection to a Board pronouncement that it is a joint employer in a timely manner can waive that objection.
See NLRB v. Western Temporary Services, Inc.,