Conair Corporation v. National Labor Relations Board, Local 222, International Ladies' Garment Workers' Union, Afl-Cio, Intervenor

29,1980 January Congress determine, Register, Tuesday, say 45 Fed. I no more and Appendix). 122 of the Joint (page legislature leave it to the to decide whether it prefers position of this court or that indicated the thereafter Secretary As es- Secretary of the District Court. tablished, as a of the part regulations, a fully explicated plan reviewing petitions designate categories new of foods of

minimal nutritional value as further facts

are and the need developed shown. Thus of the initial categories establishment

was, noted, as the district court a first step dealing problem

toward with the which

Congress provision wanted controlled. Full update categories is made to as more CORPORATION, Petitioner, CONAIR forthcoming. information is v. of the seem Holdings Supreme Court NATIONAL LABOR RELATIONS give approval approach tacit to this where BOARD, Respondent, some reasonable basis for the classification Klutznick, is shown. Fullilove v. 448 U.S. Local International Ladies’ Garment 448, 485, 2758, 2778, S.Ct. L.Ed.2d Union, AFL-CIO, Workers’ Intervenor. Salfi, 902 (1980); Weinberger v. 422 U.S. 749, 769, 2457, 2468, 45 L.Ed.2d 522 S.Ct. No. 82-1623. Williams, (1975); Dandridge United of Appeals, States Court 1153, 1161, 25 L.Ed.2d 491 District of Columbia Circuit. . Argued July Secretary

Here the was faced with the devising regulations to meet obligation Decided Nov. problem Congress perceived of low nu- trient sold to the being competitively foods

food furnished in the programs schools. Secretary, recognizing imprecision category approach regulation practical

still found it to be the most control a temporary

available on basis until further developed

information could be in an order-

ly obliged grant fashion. We are defer- expertise

ence to the of the administrator.

When foregoing perspective, viewed

the action Secretary cannot be held impermissibly be irrational or arbitrary. affirmed in part, part

Reversed

remanded. remand the District On Court

may possibility injunctive consider the

relief.

WILKEY, Judge, dissenting Circuit

part:

I would affirm on the basis of the District opinion. respectfully

Court’s I dissent from

my colleagues’ place views on the time and

limits to the Secretary’s regulations. As

this is a matter totally power within Burstein, City,

Herbert New York for petitioner. Randy Lewis Levine David A. York also Kapelman, City, New entered appearances petitioner. for N.L.R.B., Gofreed, (NLRB Marjorie Atty., Board) tions or S. under the D.C., National Labor Washington, (NLRA with whom Elliott Relations Act Act) to Moore, Counsel, issue order when Deputy Associate General “ Board, ‘outrageous’ has committed Relations National Labor Wash- ‘pervasive’ unfair labor ... D.C., brief, ington, respondent. was on ‘such a nature that their coercive effects N.L.R.B., Spielberg, Atty., Paul Wash- cannot be eliminated application of D.C., entered an ington, appearance also remedies, traditional with the result that a respondent. fair and [representation] reliable election Zimny, City, Max New York whom ”1 Supreme cannot be had.’ Court so Strauss, Reitman, Sidney Jesse H. Bennet category described a of cases in NLRB v. Newark, N.J., Gold, D. Zurofsky, Laurence Packing thereby Gissel opened Silberman, D.C., M. Washington, David question whether a bargaining might brief, were on for intervenor. issue employer’s grave to redress the mis- Taylor, Stephen Carl L. A. Bokat and though conduct even the union involved D.C., Kirby, Tom were Washington, never received authorization cards from a brief for the Chamber of Commerce of the majority unit employees States, United amicus urging curiae representation and lost a election.2 We the order be set aside. confront here the the Supreme situation Court described but did not decide in Gissel: Smetana, Ill., Chicago, Gerard C. was on engaged “outrageous” and brief for the Council on Labor Law Equali “pervasive” unfair practices; the un- ty, urging amicus curiae the order be ion never achieved a card majority, it did set aside. not otherwise demonstrate majority sup- Avakian, Springfield, Michael E. North election; port, and it lost the representation Va., was on brief for on National Center decision, in a three to two issued Labor Policy, urging amicus curiae that the bargaining a order. order be set aside. 7, 1977, On December Local of the International Ladies’ Garment Workers’ WALD, GINSBURG, Before and SCA- (Union) lost representation Union election LIA, Judges. Circuit among production and maintenance em- for the Opinion parts ployees Corporation (Conair Court I-V.B filed Conair Company). (J.A.) Joint by Judge Appendix Circuit 583a-84a. GINSBURG. In administrative proceedings brought by Opinion for the part by Court in V.C filed the Board’s General Counsel to set aside Judge Circuit WALD. remedy results of the election and to unfair Company’s practices, labor an Ad- Dissenting opinion by Judge filed Circuit (ALJ) ministrative Law Judge found that WALD. engaged Conair had in “outrageous” and Dissenting opinion by Judge filed Circuit “pervasive” unfair practices. Conair GINSBURG. Corp., (1982). proposed ALJ’s order directed Conair to statement Separate concurring filed implement extraordinary notice and access Judge Circuit GINSBURG. remedies, including requirement that Co- GINSBURG, Circuit Judge: president nair’s personally read the NLRB’s presents This case a controversial ques- remedial notice to an assemblage tion in federal labor relations law. Central- company’s employees. The ALJ declined to ly at issue is the scope authority order, however, Con- recommend a bargaining gress accorded the National Labor Rela- the union because never obtained authoriza- Packing 1. NLRB v. Gissel 2. See id. 1918, 1939-40, 89 23 L.Ed.2d 547 bargaining enforce the order. bargain- would cards from

tion this Id. at 1284-85 & n. 451 the reasons in Part V.C of For stated ing employees. unit Wald, yet not issued a the court (noting Judge that the NLRB had written opinion, majority). on read- bargaining upholds presidential order absent a card Judge Ginsburg dissents on this ing issue. findings of the ALJ’s affirmed issue; if president, she would allow Conair’s fact, a find- amending them to include elects, designate responsible offi- he so discharged actually that Conair had his be- cer to read remedial notice on Id. at striking employees April half. and access Adopting 1189-90. the notice ALJ, the Board proposed remedies Background I. ruled that “massive further Conair’s manufacture, engaged Conair warranted unrelenting coercive conduct” care, sale, personal and distribution of hair Id. at of a order. imposition bargaining At all products. grooming, related challenged Conair has 1192-94.3 controversy, relevant Conair times NLRB’s decision. offices, con- maintained its administrative not receive We conclude that Conair did oper- warehousing ducted and distributional of, respond opportunity fair notice ations, ap- care produced electrical hair to, it actually discharged a claim that strik- Edison, facility pliances Company’s at 1977; we there- ing employees April at 1203-04.4 Jersey. New order in fore decline to enforce the Board’s occurred, the Edi- When the events issue issue, we On central particular. Id. employed 300 unit workers. plant son Congress empowered hold that Most employees, at 1285 n. 451.5 of these absent a Board to issue Id. Spanish were appears, speaking. majority employ- concrete manifestation of n. 1268 n. we ee representation; assent decline the NLRB's therefore to enforce 1977,6 began In March of the Union respects, order. we In all other Edison organizational campaign at Conair’s grant deny petition Conair’s for review Id. at 1205. In shortly April, plant. early cross-petition the Board’s for enforcement aware cam- becoming after of the Union’s of its order. Company the a series paign, conducted unprecedented management-employee issues, (1) panel On two is divided: in the Union’s meetings response direct nonmajori- authority the NLRB’s to issue a Id. at Vice- order; efforts. 1265. Conair require- ty and Mayorek Kampel Jerry Presidents John and president personally ment that Conair’s all in the meeting employees to an as- held a unit read the NLRB’s remedial notice Id. at 1205. Wald, for cafeteria on 4. semblage employees. Judge plant’s April that dissenting opinion, meeting, the reasons stated in her At that indicated Mayorek decision, Subsequent opinion, Third to the ALJ’s unless otherwise indicated 3. Dairy Coop. held United Farmers Circuit the context. Cir.1980), (3d 633 F.2d 1054 Ass’n authority issue a ALJ, the NLRB had the unit 5. As described nonmajority bargaining remedy “out- order to included: “pervasive” employer rageous” la- and unfair employees production and All maintenance practices. The issued such an order bor including shipping receiving employees, and Dairy United on remand that case. See jani- employees, and warehouse truck drivers Ass’n, Coop. Farmers 257 NLRB employees at torial maintenance ... [the] plant, excluding but office clerical Edison all 1367-68, reject pp. we profes- set out infra employees, plant employees, As 4. clerical challenge credibility determina- Conair’s employees, guards supervisors as sional and findings ALJ, and tions and of fact made Act. defined in the Labor [National Relations] by the affirmed Board. We therefore summa- at 1259-60. factfindings background ALJ’s rize the in this during in Part I described occurred statement. Citations to 261 NLRB 6. All events herein opinion, refer to the ALJ’s unless otherwise noted. rather than organizational knew of the Company that unionization would result in the loss of benefits,11 campaign. pointed promised He then out the bene- certain and various ad- ditional in the provided by Company past, fits benefits future. Id. at 1210- 1205-08, Í2, 1267-68, that certain cur- 1273.12 Rizzuto id. at cautioned warned if he pay wages had to the increased rent benefits would be lost with unioniza- Un- demand, ion tion, 1205-08, 1267,7 go would he would out promised id. at 1210-12, business. Id. at 1267-68. He that in the future the would also Company pro- that, union, stressed without a variety many vide a directly benefits — bring were free to complaints directly to responsive to aired at employee complaints supervisory managerial personnel; 1205-08, meeting. Id. at 1264 & n. union, said, with a he someone would have Mayorek 1272.8 further the em- informed represent workers management, before ployees Company had an “open- resulting 1211-12, Id. at delay. 1267-68. most, door” policy previously unknown to — all, if not employees whereby they could Rizzuto, — Later that same day, Mayorek bring grievances directly to managerial per- and Kampel held several with meetings sonnel.9 This management direct access to groups of ten to fifteen employees during unionization, also would be lost with he they again spoke which current and fu- Kampel warned. Id. at 1262-63. benefits, ture “open-door” policy. reiterated much of what Mayorek said. Id. Rizzuto stated at the small group sessions 1208, 1267, 1272.10 in, that if a union came cheaper it would be Hong Kong to move to than to remain in April On Conair President Leandro 1214-15,1268,1273.13 Edison. Id. at Kam- meeting Rizzuto addressed a second mass pel promised employee deal several unit production held area. complaints aired at these meetings. Id. at His remarks tracked the earlier remarks of 1214-15, 1273.14 Mayorek Kampel. President Rizzuto why stated that he could not understand response extraordinary Conair’s unionize; want he employees would management-employee meetings, Union benefits, then recited current cautioned called an unfair labor strike on the practice Mayorek employ- promised April 7. stated that nonunion 12. In addition the benefits participate profit sharing promised supra ees could Conair’s see note Rizzuto plan, provide and that the Union would security guard’s negative attitude toward the plan plan health insurance inferior Co- employees, they complained, of which had nair offered. 261 NLRB at 1268. change. would Id. Mayorek promised improved wage moving, spoke 13. At the time Rizzuto Conair package, hiring bilingual per- benefits of a already joint participated as a venturer in a complaints, sonnel director to deal with worker Kong facility Hong production for electrical fountain, water installation a new and ex- appliances. hair care at 1204. Id. pansion provide to and cold of the cafeteria hot meals. Id. at 1272. All but the last of these promised complaints Kampel promised provide gloves pro- benefits answered em- 14. to to ployees expressed meeting. assembly-line at the Id. at 1264 workers’ hands to tect and inves- n.& 351. tigate allegedly discharge unfair of work- 1216, er. Id. at 1273. “open- 9. The ALJ doubted that Conair had an groups In contacts with small or individual policy prior April meeting. Id. door” employees, supervisory personnel various reit- at 1262-63. points erated officials had made at the Conair interpreter Mayorek’s An 10. translated and early April meetings. (closing See id. at 1267 Kampel’s Spanish. remarks into simi- Conair plant moving Hong Kong if Union and larly provided Spanish translations of the re- in); (promise wage of new comes id. at April meeting marks made at the 6 mass de- package). Supervisory personnel interro- also 1206, scribed 1210. below. Id. at gated employees their union activi- two about during period. at 1275. ties Id. profit sharing plan 11. These included the and parties gifts. Christmas Id. at 1267-68. J.A. 271a-72a. 1217, April meetings. Id. at early 1277.15 on the 11. morning April then entered employees par- Company unit and the 125-140 The Union Approximately morning,16 that in the strike hold a consent election ticipated stipulation into plant picket. remained at the over 100 pay- on Conair’s among employees all unit Id. at 1218, The strike continued for 1277. This J.A. 581a-83a.22 April roll as of 9. months, September 23. ending over five 6,May election, originally scheduled spon- and numerous Disorganized picketing May pending resolution postponed on line violence17 mark- picket taneous acts of (based on practice charge labor an unfair Id. at days. the first ed two violence) the Company line early picket Thereafter, from a few inci- apart 1287.18 25. 261 April filed with the Board on had 18,19 sig- no during July dents the week of 1; at 1202 n. J.A. 280a-81a.23 occurred. line misconduct picket nificant Id. at 1287.20 strike, During the course of it clear to the Company repeatedly made 13, initiated two ad- April the Union On persistence that striking employees petitioned ministrative actions: loss of would result concerted action representa- certification as unit Board for 20, sent mail- 579a-80a;21 jobs. April their On Conair tive, and it filed an unfair J.A. stating they the strikers that charge against grams Conair based practice labor 15. Roadway April employees Express at driver. 261 NLRB 25-30 unit went other On report the various meet- 1232-36 & n. 172. the Union hall to ings. employees asked for re- Some these During the course of the strike a series of cards, stating of their authorization turn plant night fires at the Edison and one occurred they jobs. did not want to lose their The Union were the windows of the executive offices had been assured them that Conair’s actions illegal shot-gun. blown out No evidence estab- day meeting and the next told a of 50-60 acts, complicity in these lished the Union’s they protest employees could strike to unit 464. however. Id. at 1227 & n. 1287 & n. receiving Company’s Upon an en- actions. finding part response on the thusiastic ployees, from the assembled em- 20. The ALJ based this videotapes pick- exploring op- extensive made of the and thereafter further Conair tions, April approximately 13 or 14 until the Union to call the strike. Id. eters from resolved 1287 n. 465. at the end of the strike. Id. at Approximately April had 100 unit remained 21. As of least workers authorizing away participated picketing signed Union to “act ex- from work and cards during clusively agent representative the entire strike. Id. at 1217 n. 73. [their] purpose bargaining.” Id. at of collective 1205; 17. These included eventually throwing, The Union obtain- rock J.A. 413a. and bottle slashing, calling, against 261 NLRB non- ed another 14 authorization cards. tire name threats workers, nonstrikers, striking injuries at 1205. minor automobiles, damage to the nonstrikers’ Procedure, plant damage property. Id. at 1287. NLRB Statements of 22. See 101.19(b) (1983). pro- stipulation C.F.R. § 18. On April Brotherhood secured a state court vided that Local International Conair Teamsters, Chauffeurs, Union, injunction (consented Warehousemen and J.A. (Teamsters), 306a) limiting pickets Helpers which had in- the Union to a total of 10 of America tervened, forbidding pickets interfering would also be listed on the ballot. 1205; 581a-82a; entry seeking into J.A. see NLRB or vehicles Casehandling (Part Representation plant. Manual II: or exit from the injunction J.A. 273a-75a. This 11022.3(d) (1975). May Proceedings) was vacated on 16. J.A. 591a- second, injunc- 92a. Conair obtained a similar July practice charge tion on remained in effect until the 23. When an unfair 301a-03a, might end of the 319a-21a. strike. J.A. affect the outcome of an election is filed shortly NLRB finds before the election and the 19. The merit, primary during charge prima the usual incident occurred that the facie Roadway pending evening July Express postpone the election reso- 21 when a course is to charging plant person- charge driver his arrived at the Conair lution of the or waiver challenge party right al the election on vehicle and without evident business of its charged Supre- purpose. A Union official struck the driver the basis of the conduct. 396, (1st jack Mfg. Alpert, during argument apparently with a tire nant Cir.1963). v. 318 F.2d 397 Co. picketers’ previous over the treatment of an-

1363 Meanwhile, inside the jobs plant, Company their quit to have would be deemed in its efforts to eliminate unrest persisted 22. April to work on reported they unless nonstriking employees.28 among Conair 1268; 1237-38, J.A. 453a.24 261 NLRB at officials, meetings both at and in remarks each striker a let- sent subsequently Conair employees, to individual continued to en- which, Spanish dated June 9 ter management to voice to courage workers rein- version,25 “full and immediate offered they might have. 261 any grievances accept unconditionally you ... if statement 1265; 1226, 371, 1262, NLRB at 1257 & n. NLRB at return to work.” 261 our offer to director, personnel 2328a. A bilingual J.A. 216,1268; 452a.26 Final- n. J.A. 1238-39 & 4, com- promised by Mayorek April July to the strikers in sent letters ly, Conair employment plant menced at the Edison Spanish stating English August Thereafter, at June 1. 261 NLRB 1238. the insur- Company had notified that planned implemented Company medical employees’ carriers for the ance variety many response benefits29 — no that the strikers plans and life insurance during early raised employee complaints at worked for Conair. longer Id. meetings. 1274 & n. April 371; 1239, 1268 & n. J.A. 484a.27 392.30

24. Spanish (1981); Jimmy mailgrams full in L.Ed.2d 118 Dean Meat stated in both English: 227 NLRB HAVE YOU REPEATEDLY TO WE CALLED 27. The letters stated Spanish in full in both YOUR JOB. DESPITE YOUR PROMISES English: SO, HAVE FAILED RE- TO DO YOU TO Employee: THERE IS VIO- PORT FOR DUTY. LENCE, NO Dear requested FREELY ENTER THE EMPLOYEES You have been on two occasions months, report YOU REPORT TO WORK PLANT. UNLESS within last three you AT FRIDAY APRIL YOUR REG- ON work and have failed to do so. Under TIME WILL BE policies, ULAR STARTING YOU our medical and life insurance “Ces- employ- DEEMED HAVE VOLUNTARILY TO QUIT in a class sation of active service YOUR JOB. eligible be deemed ees for insurance shall 1237-38; J.A. 453a. The Union 261 NLRB at employment.” Consequently, termination of practice charge against filed an unfair labor companies we have advised the insurance alleging mailgrams May that the Conair on you working are for Conair. discriminatory discharge and that threatened a recognize must also that all accrued You discharged April employees were so as of suspended vacation benefits have been 22. J.A. 285a. you mailed to within 30 all forms will be days. 25. The ALJ concluded that of Conair’s 75-80% 1239; J.A. One insurance 484a. Spanish speaking employees were and noted notifying company letters sent strikers Spanish of the 1977 strikers 79% they longer them that were no covered because surnames. 261 NLRB at 1268 n. 369. employment on the had terminated their Conair ground 26. they job[s].” Spanish ver- had “left The letter stated in full in the [their] NLRB at 1268 & n. 371. sion: 20, 1977, IS OUR TELEGRAM OF APRIL Throughout posted the strike Conair three HEREBY HEREBY ARE RESCINDED. YOU plant stating large signs in effect outside its FULL AND IMMEDIATE REIN- OFFERED employees were not on strike. 261 that Conair OR, STATEMENT TO YOUR FORMER JOB concluded, The ALJ NLRB at light EXISTS, A IF TO YOUR JOB NO LONGER actions, signs other that these of Conair’s SUBSTANTIALLY POSI- EQUIVALENT they conveyed message to the strikers TION, IF YOU ACCEPT UNCONDITIONAL- Company longer were no considered LY RETURN OUR OFFER TO TO WORK. employees. Id. at 1269. 216; n. J.A. 452a 261 NLRB at 1238-39 & English (emphasis added). version re strike, 29. On April prior for the Conair “upon your placed portion the italicized employees. gave gifts to its first time Easter An to return to work.” unconditional offer 1216, 1274. Id. at obligation unfair has an to reinstate express practice their will labor ingness strikers who 30. Sometime between See, e.g., end of the June 1 and the Mastro to return to work. system NLRB, 270, 278, Company Corp. strike the established 350 U.S. Plastics by bidding 349, 355, (1956); promoting Teamsters current 100 L.Ed. 309 1247; salary up (D.C. jobs, standards and id. at set Local 115 v. 640 F.2d 1247-48; began ratings, performance Cir.), denied, id. at 102 S.Ct. cert. they able than the

After a and summer concerted ones held before spring the strike, however, never action, offered rein- the Union informed Conair 23; statement to thirteen strikers.34 September on strike would end on be- striking employees, half of all the Union 23, approved On November offer to return made an unconditional to formal settlement the unfair labor prac- Id. 1240, work at 1277. day. on that The tice charges alleging picket Conair had filed offer Company accepted the but refused to line Union. J.A. 362a- misconduct reinstate In- immediately.31 strikers 66a.35 The representation initially election stead, reported when the strikers to the scheduled for 6 was thereafter re- May 28, on re- plant September Company scheduled for December 7. 261 NLRB at Id. quired job them applications. to fill out 1202 n. 1. the two weeks During prior to 1240-41, During period at 1278. vote, personnel supervisory repeatedly October 4 to November most of strik- employees stated to various unit that Co- ers received offers32 and re- reinstatement president nair’s would close the Edison 1241,1279.33 Id. at turned to work. plant Hong Kong Conair and move if to the Union Id. at 1248-51, initially jobs offered five strikers less won the election. desir- 1269.36 newsletter, 1248; parking employee id at allocated one was arrested who outside the spaces by addition, plant seniority, pled guilty loitering, id. sometime id. at 1242- election, 43, 1281, representation employees respond- between June 1 and five who and the had Company expanded provide rejoined the cafeteria ed to the June strike, but 9 letter later food, 1246-47; 1243-44, hot id. at 1281. id. at instituted formal ter- Conair mailed 1247; layoff procedures, mination and id. at offers of reinstatement two strikers at incor- union, addresses, employee rect to send established an credit id. at and failed an offer to 1248; clubs, id.; organized brought employee one social im- striker. When these errors were id.; attention, proved safety Company procedures, bilingual to Conair’s hired a refused to nurse, id.; Further, gave holiday employees discharged correct them. Id. Conair on their birthdays, id.; provided drinking three had extra foun- reinstated strikers who taken autho- area, 1274; 1244-46, production tain in the id. at rized leave. Id. at 1281-82. The Un- supplied gloves assembly practice charges protest- ion to the filed unfair women labor line, discharges. id. these J.A. 367a-69a. Despite promises, presented no new Conair required 35. This settlement the Union to cease wage package during prior the strike or to the picket and desist from further line miscon- during election. strike, occasions On numerous post duct and to notice settlement for explained Conair officials to the non- days. J.A. 364a. striking employees illegal that would be original April charge against Conair’s package offer such a before Conair’s labor informally May Union had been settled on 12. problems Id. at were solved. 1226 & n. Regional J.A. 282a. The Board’s Director with- 1273. prior approval drew his of the settlement and 31. responded by filing Union to this refusal August complaint issued a Company after the charge. practice another unfair J.A. practice filed a second unfair labor 341a-42a. charge alleging further Union violence. J.A. 322a-31a. The Union the General Counsel 32. Conair made the offers means of mail- September 1, reached a formal settlement on gram English only written in and mailed a 332a-40a, because, objected J.A. but Conair prior days scant one to four to the date on alia, guilt inter not Union did admit employee report which the had for work in stipulation. n. 1. J.A. 362a accept. order to 261 NLRB at 1278. 36. Supervisors had made similar statements to 33. work, unit Upon October. returning the strikers had to Moreover, meeting 1248-49. aat mass for unit fill out new tax and insurance forms. The employees held on October President Rizzu- Company many wrote “new hire” on company give to warned that can no what the returning replaced strikers’ cards and time promised Union and still remain in business. original date of hire on several strikers’ attend- during Id. at 1271. also stated Rizzuto ance records with the date. return Id. 1241- meeting Company October could spell plans improved out its future ben- 34. Company object to offer refused reinstatement efits because the Union would again, to picket pointed four were who arrested on the Board. Id. at 1273. Once he pled guilty obstructing pas- Company’s “open-door” policy. line and Id. at sage vehicle, of a motor id. at 1279- they supported union, on several occa- current benefits if Supervisors also warned that, victory, 1270-71; event of a Union by threatening sions id. at its employ- their would receive employees plant they supported ees with closure if 1250, 1253-54, Id. at Christmas bonuses. union, 1269-70; id. by at threatening plant 1270. “Raffle tickets” inundated the discharge employees engaging its was a that a vote for Union warning action, 1268-69; id. at protected concerted 1251-53, Id. plant vote for closure. at by promising (expressly impliedly) or and Conair distributed cam- Finally, 1269-70.37 its granting benefits to induce Spanish paign (printed literature both 1273-75; unionization, renounce id. at by 1254) and and English, id. at “Statements coercively interrogating several employees declaring Company’s Account” activities, concerning their union at id. profit was for nonunion em- sharing plan 1275-76; by creating impression and Id. at 1270. ployees only.. its union activities were employees’ lost the December 7 election Union surveillance, under id. at 1276. See id. at 69;38 eight were vote of 136 votes The ALJ further 1288. determined that and forty-one cast the Teamsters39 bal treatment disadvantageous Conair's of un- lots J.A. 583a-84a. On challenged. were strikers, practice fair labor based their Regional the Board’s Di March activities, was unlawful under both in which he consoli complaint rector filed a 8(a)(3) 8(a)(1) section and section challenge dated the Union’s the election violations, NLRA.42 category In this with drawn from the various allegations failure Company’s ALJ included the to rein- charges the had practice unfair labor Union immediately upon state the strikers their filed 261 NLRB at 1202 & against Conair. work, unconditional offer to return to id. at 2;n. 370a-93a.40 J.A. 1279; its failure to reinstate five initially Regional on the Director’s com- Hearings substantially equivalent to positions strikers days, plaint thirty-eight ran for commenc- 1279; pre-strike jobs, their id. at its 23, 1978, ing and on June ending on March strikers, failure ever reinstate thirteen 2,1978. 1202 & n. July 261 NLRB at 4. On 1281; discharge previ- of three id. and its 30, 1980, issued his the ALJ decision strikers, at 1282. id. ously reinstated id recommended order. J.A. 260a. The ALJ 8(a)(3) 8(a)(1) 1288. viola- Conair’s that Conair had violated section determined concluded, tions, were sufficiently the ALJ 8(a)(1) soliciting employ- of the NLRA41 place Company’s and numerous to grave during organizational ee cam- grievances “outrageous” “per- conduct within the more elaborate than paign through means Supreme category vasive” described (ex- with the promise used and previously at 1285. Court Gissel. Id. pressed reported grievances implied) or 1266-67; The ALJ’s recommended directed adjusted, 261 NLRB at would be from the loss of Conair to cease and desist enumer- by threatening prior complaint part: This several com- 37. stated in 40. amended These tickets relevant 345a-61a, 286a-93a, plaints. 370a- See J.A. ALL WIN AN EXPENSE PAID EXCITING 93a; pp. infra 1369-70. IN TRIP NEW FACILITIES TO CONAIR’S KONG. BEAUTIFUL HONG DONATION: 158(a)(1) (1976), 8(a)(1), 41. Section 29 U.S.C. ONE UNION VOTE practice for makes it an unfair labor an em- linking Id. There is evidence at 1251. Com- with, restrain, ployer “to or interfere coerce pany distribution of “raffle tick- these employees” rights the in the exercise of NLRA ets.” Id. at 1269-70. accords them. 38. consisted of the 300 unit em- The electorate ployees payroll April 158(a)(3) as of 8(a)(3), (1976), 9. Id. at on Conair’s Section 29 U.S.C. § 42. discouraging membership n. 451. encouraging bars or “by any organization discrimination in regard employment proceed- to hire or tenure of withdrew from the The Teamsters employment.” ings term or condition of 1977. J.A. 583a n. on December ated unfair labor violat- II. Threshold Issues manner,43 8(a)(1) any other section objections initially Conair raises two implement extraordinary and to notice and contends that each of them warrants a deci- vacating sion the Board’s order in its entire- Id. at access remedies. 1285.44 The first, ty. Company argues the bargaining ALJ declined to recommend a timing representation of the among election order, however, because the Union never unit contravened policy NLRB had obtained authorization cards from a regulations; second, and and that credibili- majority of the unit and the employees45 ty assessments with a along host of other Board, decision, at time of the the ALJ’s ALJ, made the findings and adopted by nonmajority bargaining had never issued a Board, the lack foundation in the record. Id. at 1284-85 & n. 451. order. objections Both are insubstantial. full generally Board affirmed Timing of the Representation Election A. Id. ALJ’s findings proposed remedies. 1, 1977, September On the Union 1189-92; id. at 1195 & n. 28 at (Chairman and the Board’s General Counsel reached a id. at 1199 Water); (Member Van de Hunt- formal settlement of the prac unfair labor er).46 vote, aBy divided the Board also charges alleging picket tice line misconduct imposed bargaining order retroactive by the Union. J.A. 332a-40a. A term of April 1977—the began date Conair the settlement required post the Union to Id. of unfair campaign practices. labor remedial notice at its offices for sixty days. Finally, 1192-94.47 the Board majority con- J.A. approved 335a-36a. The Board the April mailgram cluded that resulted settlement, over objections, Conair’s on No discharge the actual em- striking vember 1977. J.A. 362a-65a. The rep ployees April on 22—and thus Conair was resentation election was then held on De cember 1977. J.A. 583a. pay liable for back strikers from that Id. date until end the strike. The election occurred several weeks too soon, maintains, 1189-90 & n. 5. Conair because the Union’s proposed upon working prior any 43. The ALJ’s order called time election Company pay to reinstate back participate. all strikers which the Unión will initially refused reinstatement or recalled and 261 NLRB at 1285. discharged. later His order also awarded back pay represented to all 45. strikers whose reinstatement The Union’s 138 cards was 46% delayed. 1283; employees. 261 NLRB at J.A. 263a-64a. 300 unit Id. at 1285 n. 451. required 44. These remedies Conair to: Van de Chairman Water dissented from the (1) (in a notice Mail remedial order both requirement Board’s affirmation of the Spanish English) to all current and former President Rizzuto himself read the remedial employees, place appropriate the notice in employees. notice to the current Id. at 1196 n. company publications, and have President Riz- employees; zuto read the notice to all current (2) publish newspapers the notice in local impose 47. Three Board members voted to ' weeks; four bargaining Only members, order. two of these (3) years grant for two the Union reasonable however, concluded that the order should be boards, plant upon request; access to (4) bulletin 4; April retroactive to one member of the ma- years grant for two the Union reasonable jority prospective only. voted be Id. at plant during access to nonwork areas of the opposed n. 24. Two & members who time, employees’ upon request; nonwork bargaining order in this case nonetheless be- Union, (5) supply request upon made generally lieve that NLRB orders year, within one the names and addresses of accept should be retroactive. We therefore employees; current representation NLRB counsel’s to this court (6) years give for two the Union notice of imposed that the order the Board speeches Company employ- made to its April Conair is retroactive to 1977. See unionization, concerning equal ees time Response Interrogatories NLRB to the Court’s thereto; respond and facilities to Supplemental (August 1983) Brief at 1-3 years give right for two the Union the cases). (citing speech deliver a 30-minute “laboratory con- misconduct destroyed misconduct had Union harmed Conair when ditions,” and the Board’s own regulations Thus, lost that election. Union even if not be indicate that such conditions could should have NLRB deferred election sixty-day restored until expiration sixty days posted date until after Union it is not posting period. note first that We notice, is not positioned remedial Conair that NLRB called altogether policy clear complain. Scheduling election dur- for a in this More sixty-day wait case. period the required Union error, one, importantly, if there was post a cease and desist notice did not reduce was harmless. of the Company’s the force unfair practices at which the Board’s that, order is di- provide do “ex- regulations circumstances, cept in no elec- rected. exceptional period

tion should be held until the posting expired.”48 has But circum- “exceptional Supports B. Evidence Substantial stances” here. Almost all may present be Findings ALJ’s of the on April Union’s misconduct occurred Conair’s attack on the ALJ’s findings do 12, eight 11 prior and months 1977— not merit extended discussion. The Compa- 7,1977 NLRB December election date. 261 we ny insistently urges that overturn the (ALJ at 1219-26, Opinion). 1287 The re- credibility ALJ’s determinations. Our re- maining of misconduct occurred incidents view of record confirms that we have 18, during July the week of 1977—four and no to do so. cause one-half to the election. Id. prior months Moreover, on the strike ended that, general, The ALJ stated in 1977; 23, September there had not even testimony he credited the of the General been a for two one-half picket line and Counsel’s witnesses over testimony prior months election. id. at Company’s witnesses. Id. at 1265.50 1240, 1277-78. It would not been have nothing inherently arbitrary, There we unreasonable, circumstances, under these note, believing one side’s witnesses and for the NLRB to conclude that effects any other’s. not the See Bruce Duncan Co. v. of the Union’s line misconduct had picket NLRB, 1304, (4th 590 Cir.1979); F.2d 1309 dissipated 7, prior to December 1977.49 NLRB, 1357, cf. v. 455 F.2d 1368-69 UAW (resolving all event, (D.C.Cir.1971) & n. 12 factual argument fails on Conair’s practical comprehend party in favor ground. We do not conflicts of one does not ALJ).51 how a Board-held election tainted bias of We find arguably establish no tena that, upon testimony regulation 48. The 50. The ALJ observed relevant states of the practice charges large settlement of unfair Counsel’s was “in General witnesses election, blocking given forthright manner, processing the elec- in a measure “However, clear, petition proceed. detailed, may except generally unequivocal tion more and circumstances, exceptional election in nature no corroborative consistent other, posting period importantly apparently should be held until the each and most expired” charging party present unless the waives its with the other evidence consistent record”; right ground testimony challenge Company’s the election of the on the witnesses, hand, posting period expired. that the had not NLRB on the other was “for the evasive, Casehandling (Part Representation part contradictory, guarded Manual II: most defensive, Proceedings) (1975) (emphasis quite equivocal, 11730.8 times unclear original). Conair never executed a waiver. in some instances such an incredible Opening Cross-Respon- unworthy Brief of Petitioner and as to be of belief.” nature (additional dent at n. at 1255. See id. at 1266 & 358 crediting testimony for not of Vice- reasons Mayorek). course, President agency, 49. An should observe see, FCC, regulations, e.g., own 530 Gardner v. 1086, cloudy charge (D.C.Cir.1976), exception F.2d without 1089 and the 51. The that the ALJ fully position election-timing is less than of the NLRB disbelieved Conair’s witnesses suggests holding example, concluding issue that the Board’s rules For accurate. strikers during posting periods engaged during elections while in misconduct the first strike, charges outstanding days are bear clarification. the ALJ credited testi- two 1368 contrary assigning given by ble basis for ALJ’s credibil evidence credited General , than we

ity weight calls in this case less have reviewed each Counsel witnesses. We See, such assessments. generally accord examples Company52 cited 984, NLRB, e.g., Local Union No. IBEW v. most, contention. At reject Conair’s 113, (6th Cir.1982); v. 697 F.2d NLRB in each argument Conair has an case Oldsmobile, Inc., 99, Pace 681 F.2d 100-01 might rational of fact triers drawn (2d Cir.1982). appraisals His are neither testimony. conflicting conclusions “hopelessly incredible” nor “self-contradic circumstances, Under such this court has no See, tory.” uphold We therefore them. authority upset the conclusions reached Nichols, Inc., e.g., NLRB v. 704 F.2d S.E. See, e.g., the ALJ and the Board. (6th Cir.1983) (uphold unless Industries, v. NLRB Concord Furniture basis”); “lack[ing] Corp. a rational Mead Inc., Cir.1982); (1st 675 F.2d Ken NLRB, (11th Cir.1983) 697 F.2d Trucks, worth Inc. v. 580 F.2d (uphold “inherently unless unreasonable or (3rd Cir.1978).53 self-contradictory”); v. American Geri-Care, Inc., Cir.1982) (2d 697 F.2d April Mailgram: III. incredible”), (uphold “hopelessly unless cert. Discharge denied, — U.S. —, Threatened or Actual (1983); L.Ed.2d 807 Boston Mutual Life In vote, a three to two By NLRB, 169, 170 surance (1st Co. v. 692 F.2d held that one of the ALJ’s conclusions of Cir.1982) (uphold beyond unless “the bounds law did not reach far ALJ enough. The reason”); Retail, see also Wholesale & 20,1977, had determined that April Conair’s Department NLRB, Store Union v. 466 F.2d mailgram striking employees threatened 380, (D.C.Cir.1972) (NLRB 386-87 finding discharge 8(a)(1) in violation of section witnesses, based on testimony of two al (hereafter, 8(a)(1)).54 the NLRA The § though by contradicted of a testimony third mailgram Board’s decided that the witness, testimony affirmed because relied 8(a)(3) (here violated section of the NLRA on was not “hopelessly incredible”). after, 8(a)(3)) well,55 because it § threat; than it in Conair also contends that amounted more fact many of the ALJ’s findings supported by employment are not terminated the strikers’ as of substantial they ignore evidence because April 1977.56 We hold that Conair was mony Company Compare noted, 8(a)(3), witnesses. id. at 55. As earlier § U.S.C. 158(a)(3), encouraging 1218-19 discouraging & n. 80 with id. at 1219-26. bars or § membership any organization “by labor dis- Opening 52. See Brief of Petitioner and Cross- regard crimination in to hire or tenure of em- Respondent 47-50, a, b, d, (examples 52-53 e ployment any employ- or term or condition k).& ment.” reject 53. For similar reasons we Conair’s asser- discharge practice 56. Actual of unfair labor tions that the ALJ mischaracterized credited 8(a)(1) by strikers not violates “inter- § evidence, Opening see Brief of Petitioner and with, ferpng] restrainpng], coercpng] or em- Cross-Respondent (“Wahler 50-55 in- ployees” right engage in the exercise of their f, examples g, j 1), cident” and & and reached protected activity, concerted it also discour- evidence, conclusions based on insufficient see ages membership by “discriminatipig] 49, 52, c, h, (examples n). id. at 55-56 m & See regard employment” to hire or tenure of Regional Bd., Amalgamated Midwest Joint 8(a)(3). violation of § Clothing Workers v. 564 F.2d The Board’s modification of the ALJ’s deci- (D.C.Cir.1977) (“Our function is not to overturn dramatically pay sion increased back Conair’s equally plausi- the Board’s choice between two Union, liability. by mailgram letter and ble inferences from the facts if the choice is 21, 1977, September dated notified Conair ”). reasonable.... strikers’ unconditional offer return to September work as of noted, NLRB at 8(a)(1), 54. As earlier 29 U.S.C. § (ALJ Opinion). company 1277-78 A has a five- 158(a)(1), practice makes § unfair labor day period nondischarged with, restrain, to reinstate unfair for an “to interfere practice employees” rights labor strikers once an unconditional coerce in the exercise of Drug Package NLRA accords offer to return is made. See them. asserted, practice unfair the issue Union in an labor notice that timely not afforded actual, was mailgram presented charge against May filed Conair threatened, Accordingly, merely discharge. episode mailgram violated 1977.57 the Board’s determination we reverse 8(a)(1) 8(a)(3). Specif- J.A. 285a. § § 8(a)(3). violated mailgram episode § charged: ically, Union 20, 1977, April or about On continu- Background A. date, [Conair], by its officers and 20,1977, mailgram Conair sent a April On threatened its dis- agents, stating in striking employees, to each of its charge, April discharged and on said . English Spanish: both employees, because of their activities on REPEATED- WE HAVE CALLED YOU 222, ILGWU, behalf of Local ... and for LY DE- TO RETURN TO YOUR JOB. protected their concerted activities. The SO, YOUR PROMISES TO DO SPITE foregoing employees consisted of those HAVE TO REPORT FOR YOU FAILED who have supported and are VIOLENCE, THERE NO DUTY. IS the strike called Local 222. supporting FREELY ENTER THE EMPLOYEES added). (emphasis J.A. 285a PLANT. YOU REPORT FOR UNLESS practice The first official unfair labor FRIDAY APRIL 22 1977 AT WORK ON complaint lodged against TIME Conair YOUR REGULAR STARTING BE DEEMED TO HAVE YOU WILL Regional May Director QUIT YOUR JOB. VOLUNTARILY It covered unfair 1977.58 19,1977, prior May charged by Union reported . striking employees J.A. 453a. No reference and therefore did not include mailgram. to this response to work in concerning A statement (ALJ Opinion). mailgram. at 1238 22-CA-7672, involving mailgram allega- The AU there- 113-14 8(a)(1) tion, May concluded violated was filed on 1977. J.A. 285a. fore Conair when, 8(a)(3) days Regional five after the uncondition- NLRB Director’s initial com- § The 26, 1977), (September 31, 1977, only the plaint, May alleged al offer was made filed on those anyone. Company charge by had not reinstated contained in the first the violations (ALJ Opinion). Eighty-one NLRB at Union. See J.A. 286a-93a. 4, were reinstated from October strikers charge in No. The Union filed the third Case 7, proposed The ALJ’s or- to November 1977. 29, 1977, September J.A. 341a- 22-CA-7939 on required make whole those strik- der Conair to 42a; Acting Regional Director’s first the during period ing employees wages lost the 11, complaint, filed on November amended 26, 1977, September to “the date of a from 1977, charges the three Union consolidated first by [Conair], of reinstatement bona fide offer time, and, allegations first for the contained may their actual reinstatement as the case be.” mailgram controversy. See J.A. about the Id. at 1283. charges, in 345a-61a. Three additional Case Actually discharged practice unfair labor 22-CA-8173, 22-CA-8220, and 22-CA- Nos. 8238, strikers, however, pay are entitled back 26, January by were filed the Union on discharge the absent an uncondi- date of —even 1978, 21, 24, February February respective- and part tional on their to return to work. offer Regional ly. The Director’s J.A. 367a-69a. Goodwill, Inc., 27, See Abilities and 8, complaint, issued March second amended (1979). 27-28 The Board’s modification 1978, charges rep- the six and the consolidated when ALJ’s decision therefore moved the date hearing. petition J.A. 370a- resentation Sep- pay obligation the back commenced from 93a. 26, 1977, April the tember 1977. Thus five months to Board’s order adds over Co- by 3(d) § Counsel is authorized 58. General pay obligation labor nair’s back to each unfair NLRA, 153(d), to file unfair 29 U.S.C. § practice striker. complaints. Regional practice Di- labor rector, particular agent for the Board in separate labor 57. The Union filed six unfair (1983), authority region, has 102.5 § C.F.R. during practice charges against and Conair appears complaints where it an unfair to issue shortly organizing campaign. The first after its practice charge merit. See 29 labor C.F.R. 22-CA-7586, charge, filed on No. Case 102.15, (1983). Regional Di- 102.74 If §§ April the same 1977. J.A. 271a-72a. On charging complaint, file a rector declines to day, petition the Union also filed a for certifica- may appeal party this decision to the General representation No. tion of in Case 22-RC-7119. charge, 102.19 § No. 29 C.F.R. J.A. 579a-80a. The second Case Counsel. in strikers violation initially, discharge mailgram episode appeared, Exhibit 8(a)(3). General Counsel first amend- See Regional § Director’s Acting l(cc)-(hh). Conair, No- issued on complaint against ed J.A. 345a-61a. That

vember ALJ, hearing At before the Conair April pleading alleged: “On or about Mayorek testified that he Vice-President plant, its Edison did [Conair] employees who re- striking knew of no loss of employ- threaten its April work in to the response turned to support ment if continued to the Un- they 1485a, and that as mailgram, April J.A. labor J.A. organization.” ion or other 22, 1977, con- striking employees were added). 350a (emphasis quit have voluntarily sidered their “[t]o jobs.” Referring J.A. 1486a. this testi- Acting Regional Director’s Notably, mony April and to content of pleading did not the Union’s incorporate ALJ that mailgram, the concluded the mail- charge were in fact dis- that discharge gram threatened in vio- expressly charged reason mailgram. 8(a)(1). lation 261 NLRB at 1268. of § its confinement of the Matching allegation comprehensive Nothing ALJ’s deci- employment,” ... loss of “threaten[ed] sion, 1980, however, July issued indicates amended cited complaint first as an controversy question issue 8(a)(1), 8(a)(3), in this context. § § 20, 1977, April mailgram whether the occa- prac- J.A. 360a. As to other unfair labor discharges sioned actual violation however, tices in the pleading, identified contrast, 8(a)(1) 8(a)(3). By in in- § § provisions, the complaint asserted that both alleged stances where the con- complaint 8(a)(1) 8(a)(3), had been violated. § § 8(a)(3), evi- duct in violation § 353a-58a, J.A. 360a. the ALJ supported allegation, dence A amended complaint second issued on 8(a)(3) had been violated. concluded § March 1978. J.A. It 370a-93a. added See, 417, 1279, n. e.g., id. see, 376a, new J.A. allegations, e.g., 385a- decision, ALJ’s exceptions 86a, but verbatim the repeated mailgram General Counsel asserted charge as set out in the first amended com- by: erred Judge plaint. Again, pleading J.A. 377a. to find violated [f]ailing mailgram stated [Conair] incident violated 8(a)(1) Section of the Act dis- 8(a)(1); 8(a)(3) charge no was asserted § charging practice all of its unfair in relation to this incident. J.A. 391a. Fur- April 22, fail- strikers as ther, noted, as the ALJ “at the commence- provide appropriate remedy hearing ment of the the [before ALJ] connection therewith. during the course thereof the second amended at various complaint amended Deci- Exceptions General Counsel’s times by counsel for the Counsel to Judge General sion of the Administrative Law at 14, 1980).59 include allegations (November additional violations The Union filed ... at 1202. asserted exception, specifically 261 NLRB similar [Conair].” “to None these further amendments to the should have been ordered Conair complaint prac- second make all of the unfair labor alleged amended actual [affected] n ment. Ultimately, exception agreement appeared first 59. This in the record the settlement in the collapsed. General Counsel’s Mem- Counsel Proposed Opposition orandum Settle- cryptic reference in The General Counsel’s Agreement ment dated October precision with 1979 to the issue stated October September year over a after the hear- exceptions not indi- his November 1980 does closed, Un- before the ALJ Conair Conair; timely although cate notice negotiated pro- ion included a settlement July 1980, opinion did not issue until ALJ’s stating vision that Conair not liable would be hearing ended on June Notice ade- settlement, pay. Opposing back quate provide opportunity a fair to defend stated view that General Counsel his Conair before, after, must occur is record practice labor owed the unfair strikers back closed. 22, pay April until their reinstate- pay tice strikers ... whole for loss 261 NLRB at 1190 n. 5 (citing Southern commencing April 1977 until the date of Inc., Newspapers, 154 n. 1 a bona fide offer of reinstatement.” (1981)) (emphasis added). Charging Party’s Exceptions to Deci- Hunter, joined Board Member by Chair- Judge sion of the Administrative Law Water, man Van de dissented from the ma- (November 7, 1980). jority’s extension of the ALJ’s decision on unanimously The Board affirmed the the mailgram episode. They reasoned: ALJ’s determination that the mailgram un- discharge issue was initially raised [T]he lawfully striking threatened charge but was not al- [Union’s] 8(a)(1). discharge violation of § leged an unfair labor practice in the agree We that the fully supports record [Regional complaint, Director’s] [thus conclusion, ALJ’s and Conair does not seri- leading to believe that the dis- Conair] ously argue otherwise. Three of charge issue was not before the Board. members, however, five further de- 3(d) of Sec. the Act vests the authority to termined that the ALJ’s conclusion should issue unfair practice complaints augmented be in line with exception Counsel, with the General and in this case pressed by the General Counsel and the the General Counsel saw fit not to allege Union; these members cited record evi- mailgram had violated the Act dence supporting contention “that by unlawfully discharging [Conair’s] April 20 also mailgram violated Section striking employees.... is not the [T]his 8(a)(3) of the Act by unlawfully where, type of case during the hearing, terminating striking employees.” 261 the General Counsel discovers previously NLRB at 1189-90. unavailable evidence indicating additional Conair, in responding its brief to the Gen- practices.... unfair labor General [T]he eral Counsel’s and exception, Union’s had Counsel had long been aware of the exist- objected that the pleadings failed to alert it ence of the mailgram.... patent- [I]t to the presence of an actual termination ly permit unfair to the General Counsel issue stemming mailgram. from the the discharge to raise issue at such a late Board’s majority declared as its answer to stage, and after the record has been

this lack of objection: notice speculate closed.... can only as to [W]e Although asserts that it had no [Conair] might changed how its liti- [Conair] April mailgram notice would gation strategy presented its facts dif- litigated be as a 8(a)(3), violation of Sec. issue, ferently discharge if the with its complaint specifically alleges that the substantial backpay liability, had been mailgram threatened employees with dis- raised. timely Once the record has been charge in violation of 8(a)(1), Sec. closed, and, will, called, if you all bets it is paragraphs other of the complaint allege too late to raise the ante and attempt that other conduct violated [Conair] chips. collect additional 8(a)(8). Further, Sec. exceptions, in its 261 NLRB at 1199 n. 39. argued that the law and the [Conair] interpretation of the facts now in the B. Analysis record do not support the finding of a We agree with the dissenting violation. does argue not that it [Conair] Board members that the critical issue is not was precluded from adducing any excul- whether there is substantial evidence in the facts or patory that it would have altered indicating mailgram record that occa its presentation of the any case in man- actual sioned termination of the strikers’ ner. we Accordingly, find no merit to issue, believe, employment. That we should contentions since the issue was [Conair’s] Board, not have been fully litigated by and all reached operative underlying facts Conair was never told before the finding 8(a)(3) hearing of a are present violation in the rec- record closed that the stakes included liabil 22,1977. ord. April effected on ity discharges agreed in fact have by charging parties matter that opened Union dis- mailgram episode spelled “clear that But it must be litigate. threat of such charge, and not the mere exactly what the issues understand parties adjudicated complaint by action. But the are had.” Kuhn proceedings are when ALJ, although par- amended in several Board, 183 F.2d v. Civil Aeronautics during ticulars before and the course both (D.C.Cir.1950). never asserted more than hearing, Further, presence of evidence in the in violation of the threat of termination support charge record to unstated in a ALJ, 8(a)(1). And the who canvassed the § complaint any or amendment thereto does extraordinarily case in an de- thoroughly party against not mean the whom decision, apparently regard tailed did not charge is made had notice that the issue fairly posed actual as a matter discharge being litigated. was introduction of “[T]he for resolution. already evidence relevant to an issue assert, It will not the Board’s do may case not be to show used consent did, paragraphs that “other trial of a new issue absent a clear indication complaint allege[d] that other conduct that the who introduced the party evidence 8(a)(3).” violated Sec. [Conair] attempting to raise a new issue.” at 1190 anything, para- n. 5. If such “other Morris, (11th v. 676 F.2d Cioffe graphs” might have reinforced Conair’s an- Cir.1982) Harvester (quoting International ticipation 8(a)(1), it faced an § Truck, Corp. Credit v. East Coast 547 F.2d not 8(a)(3), an contention in relation to § (5th Cir.1977)). we mailgram. Nor do believe was that, Conair’s burden to show had it been “[a]ctuality Because it is the of notice due notice of an actual discharge accorded ..., not technicality, govern[s],” [that] claim mailgram, based on the it could have Board, Kuhn v. Aeronautics 183 F.2d Civil pre- ... facts” or “altered its “adduc[ed] 842, pleading amendments ten- may be sentation” to defeat the claim. id. See appellate dered on review. See C. Here, Erectors, as in McLean-Behm Steel Wright Miller, &A. Federal Practice Inc. Occupational Safety v. and Health Re- at 476-78 Procedure: Civil Commission, (5th view 608 F.2d incomplete But “if the record is or if it is Cir.1979), “because the record ... does party opposing uncertain whether the uncontrovertibly petitioner reveal unplead- motion to amend had notice of the prevailed could not have defense to stage, ed issue at the trial the appellate 8(a)(3)] charge, prejudice we find re- [the court should render its decision in conformi- quiring reversal.”60 ty upon with the issues relied the lower We stress that we do not rest on the reaching judgment.” court in Id. at 478. notion that the NLRB’s General Counsel is It is at least uncertain whether Conair rigidly bound his initial statement of a had fair notice or understood that the dis- complaint or successively even his amended charge part issue was of the case tendered pleadings. 15(b) Rule of the Federal Rules ALJ, to the ALJ. The who not even did provides apt Civil Procedure analogy. mention the issue in an otherwise exhaus- 15(b), Under Rule can pleadings be amend- conclusions, tive findings set of evi- evidence, ed to conform to the even after dently perceive did not the question judgment, when “issues not raised [therein] “by express implied had been tried or con- are tried by express implied consent of 15(b). sent.” See Fed.R.Civ.P. Under the Indeed, the parties.” 15(b). Fed.R.Civ.P. here, Board, presented formal amendment circumstances unnecessary pre- serve the result of a fair acting appellate trial of an issue as an body, should “Granada”, 60. procedural process, Jimenez Tuna Vessel first-reader element of due 415, (5th Cir.1981) (“[E]ach party F.2d 420 and trial ambush is ... favored no[t] being tried, entitled to know what is or at least to the means to find out. Notice remains

1373 NLRB, 803, (D.C. with 527 conformity its in Workers F.2d 807 decision “rendered] by the Cir.1975), denied, 907, as framed and resolved the cert. U.S. S.Ct. issue[ ]” Wright Miller, supra, 6 C. & A. ALJ. See 832 (1976). 48 L.Ed.2d conclude, the reasons stat- at 478. We ed, “finding the Board erred in A. Conduct Conair’s (1) of 8(a)(3) violated and Section [Conair] The ALJ concluded that “the ex discharging its by discriminatorily the Act 22, 1977,” unfair labor committed 261 tensive striking employees April on ‘perva and the AU’s . .. are so and modifying ‘outrageous’ NLRB at in [Conair] to that Board remedy conform to proposed to ... a fair impossible sive’ as render[] finding. 261 NLRB at 1285. The election.” ALJ’s the conclusion62 as con accepted Engaged “Outrageous” IV. Conair in analysis with the Board’s of Conair’s gruent Labor Practices “Pervasive” Unfair terms of the conduct in four variables: Not Misconduct Offset Union violations, gravity Company’s Two determinations underlie the per which their effect extent coercive first, a fair election remedial directives: unit, timing, their vaded held wake of Conair’s could not be in the to which them.63 degree repeated Conair violations of “outrageous” “pervasive” referred the gravely The Board first NLRA; second, not en the Union did labor coercive nature Conair’s unfair sufficiently grave misconduct gage stressing Company’s threats practices, or any bargaining preclude issuance of plant reprisals against to close the and its might appropriate. be der that otherwise Next, 1192.64 striking employees. Id. at The evidence credited in the administrative Company’s the Board noted viola- NLRB and court proceedings,61 prior Further, constantly repeated. tions were decisions, support both determinations. prac- the Board observed that the unlawful Neither is vulnerable under deferential began high intensity tices level of of review we when apply standard after shortly organizational Union’s in a exercise of engages Board reasoned commenced, eight an continued over drive NLRB v. Gissel expert judgment. See election intensified as the period, month 32, 615-16, 612 n. Packing U.S. neared, times and even occurred several n. (1969); Clothing Finally, election. Id. at 1193. Amalgamated after the L.Ed.2d supra pp. pointed 1360-62. the threats to dis- See 64. The Board 61. striking employees, charge refusal opinion disagreed; in his 62. Member Hunter strikers, delay in reinstat- reinstate certain extraordinary provisions access strikers, notice discharge subsequent ing the other provide remedy. adequate would 261 NLRB strikers, threats to of several reinstated and the position at 1199. Chairman Van de Water’s on plant as the close the most coercive Conair’s this issue is unclear. See id. at 1195. numerous violations. 261 NLRB at 1192- See variables NLRB’s de- 63. These derive from the emphasized its The Board also de Ass’n, Coop. Dairy cision United Farmers April mailgram that the resulted termination (1981) [hereafter, Unit- 773-75 discharge striking employees actual all II], Dairy ed other case in which the rejected April id. at 22. See 1192. We have bargain Board has ordered an made with that determination because it was majori- a union that never even a card obtained pp. supra See 1368- out fair notice Conair. ty. (Board Opinion). See 261 NLRB at 1192 discharge” regard We do not the “actual Dairy The United II decision also identified Pedro’s, however, critical, cf. determination history as relevant misconduct (D.C.Cir. 652 F.2d 1011-12 Inc. v. determining possible. whether a fair election is 1981), because Board concluded Dairy II, United NLRB at 773. The precluded the alternative Conair’s conduct acknowledged evidence the absence of Company even if a fair election did engaged Company the instant case that the striking employees April discharge all the practices prior unfair to the events 261 NLRB at 22. See 1193 n. 18. issue. See 261 NLRB at 1192 n. 16. 1374 impact involvement coercive of an conspicuous estimating

Board cited highest Conair’s officials and the use employer’s unlawful anti-union activities. meetings publications mass as factors Manufacturing United Oil Co. v. See serving impact to insure that the coercive 1208, NLRB, (3d Cir.), 672 F.2d 1213 cert. unit. pervaded Id. — 446, denied, —, 103 U.S. S.Ct. 74 confluence of factors thus identified (1982); NLRB Montgomery L.Ed.2d 601 v. undergirded by Board is substantial evi- Co., 996, (10th 554 F.2d Ward & 1003 Cir. whole, see, e.g., dence on record as a Co., 1977); Trucking Jim Baker see supra; NLRB, v. Corp. Universal Camera 340 U.S. Foods, Inc., v. Ely’s also NLRB 656 F.2d 290 474, 456, (1951); 71 S.Ct. 95 L.Ed. 456 Pe- (8th Cir.1981) (majority bargaining order dro’s, NLRB, 1005, Inc. v. 652 1011 F.2d upheld where committed (D.C.Cir.1981),65 adequately justifies 8(a)(1) violations). § the conclusion that Conair’s conduct fell into the egregious category. most recognizes Case law further Prior NLRB and court decisions sustain possibility of a fair rerun election is the Board’s judgment as to the character reduced when high corporate par officials impact of Conair’s conduct. Precedent see, ticipate practices, in the unfair labor acknowledges the gravity threats close NLRB, e.g., Rapid Manufacturing Co. v. 612 See, plant. NLRB, e.g., Sinclair Co. v. 144, (3d Cir.1979); Wright F.2d 149 Plastic 575, 588-89, 395 81, 615, U.S. 611 n. 89 S.Ct. Products, Inc., 635, (1980), 247 NLRB 635 1918, 1926-27, 31, 1938 n. (1969) 1940 when the violations affect most of (threats plant closure alone provide suffi See, employees. e.g., unit Electrical Prod justification cient for majority bargaining ucts Corp. Division of Midland-Ross order); Products, NLRB, Donn Inc. v. 613 NLRB, 977, (3d Cir.), 617 F.2d 987 cert. 162, (6th Cir.) F.2d 166 (plant closure is one denied, 871, 210, 449 101 66 U.S. S.Ct. of the most coercive threats can company (1980); L.Ed.2d 91 v. Montgomery NLRB denied, during election), make cert. 447 Co., 996, (10th Ward & 554 F.2d 1003 Cir. 906, 2988, U.S. 100 64 L.Ed.2d 855 1977). Repetition practices, unfair labor (1980); Laboratories, Chemvet Inc. v. practical reinforces judgment suggests, NLRB, 445, (8th Cir.1974) 497 F.2d 448 their coercive effect. also NLRB v. See (same); Wright Products, Inc., Plastic 247 Co., Plywood Fort Vancouver 604 F.2d (1980) (same); 635 Manu Rapid Co., facturing (1978) (9th Cir.1979) 239 NLRB and drastic (“[rjepeated (same), enforcement part, denied nature of the coercive behavior” warrants (3d Cir.1979). F.2d 144 Reprisals against majority bargaining order as cert. remedy), union proponents similarly recognized are denied, 100 S.Ct. See, as highly e.g., coercive. Jim Baker L.Ed.2d 599 Trucking Two fortify additional considerations our (“threat of termination is a serious unfair view that we have no cause in case labor practice, the effectuation of [and] guess expert appraisal second the NLRB’s such a threat is even serious”), more en un quality and effects of Conair’s mem., (9th forced Cir.1980); F.2d 866 First, activities. in several lawful this case cf. First Lakewood Associates v. respects is similar to the one other case (7th F.2d 424 n. Cir.1978) (it gener nonmajority which the Board concluded a ally universally but not true that “section necessary because an 8(a)(1) violations are less serious and have employer’s “outrageous” “pervasive” less residual impact 8(a)(3) than ... section unfair labor violations”). 8(a)(1) precluded a fair re numerosity violations figured (United as well turn election prominently Dairy Farmers Coop pp. (ALJ’s supra findings supported evidence). 1367-68 are substantial underlying the factors identified Association, Amalgamated

erative (1981)),66 722 Clothing NLRB, v. 257 Workers 803, and is from cases in which distinguishable it 527 F.2d 806-07 (D.C.Cir.1975) (no violations, not 8(a)(3) Board did reach that conclusion.67 no threats of discharge, § Inc., Cf. Towing, NLRB v. Jamaica no grievances, 602 F.2d solicitation of interroga no tions, 1100, (2d Cir.1979) (one impression surveillance, 1104-05 no reason of no benefits, threat to withdraw promises remand is Board’s failure to fewer explain appar denied, cert. grants benefits), ent and of inconsistency issuing bargaining of a 426 907, 2229, 96 order when Board had not an U.S. S.Ct. 48 L.Ed.2d issued such 832 Regional Board, (1976); Southwest Joint Second, cases). in similar Conair’s Amalgamated NLRB, Clothing Workers v. “outrageous” misconduct was more and 1027, 441 (D.C.Cir.1970) F.2d 1034-35 “pervasive” (no than the misconduct demon closure, plant threats of no threats of in dis strated other cases which this court charge, grievances, no solicitation of no im affirmed the Board’s decision to issue surveillance, pression of no involvement bargaining pros order because president, company fewer 8(a)(3) viola § pects for a fair rerun appeared election dim. tions, promises fewer grants and of bene Sprinkler See Road Fitters Local Union No. fits, and fewer threats to withdraw benef NLRB, 669 v. 11, (D.C.Cir.1982) 681 F.2d 24 its).68 (no closure, threats of plant no threat of benefits, losing grievances, no solicitation of B. The Union’s Misconduct promises benefits, no grants or fewer cert. denied, of discharge), threats that, It is disputed not on three — U.S. —, 103 (1983); S.Ct. 74 L.Ed.2d 1025 days in the course of five and one-half Lankford, Dairy appropriate. Nonmajority United II from this case differs in that employer prior history Bargaining Study Indecision, there had a of unfair A Orders: 46 practices, discharged labor over Albany L.Rev. 20% bargaining (including primary unit activist), Towing Co., physical 67. See Belcher and NLRB No. even threatened violence slip op. (1982) (although single However, company on a was a recidi- occasion. the two cases vist, both, discharges, there were no have these common pany mass threats of features: the com- (as others) closure; president repeatedly discharge, plant company or well as threats of president personally discharges plant closure; participate did not threatened and in un- practices; company actually discharged employees, grant- fair labor unionization effort occa- benefits, response; coercively interrogated employees, ed sioned no immediate fewer and non- 8(a)(3) impression surveillance; discharge occurred); and created violations Paul Distributing company responded swiftly severely slip op. 264 NLRB and No. (1982) (although beginning two of the unionization drive and seven unit contin- discharged, company committing practices were ued recalled union unfair labor activ- over days later; period; ist five no extended and in both threats were made to the cases the coer- masse; message effectively through- unit spread en and individual threats cive made Moreover, bargaining days discovery three out the after unit. unlike the unionization Dairy II, repeated thereafter); employer in effort were not United en- United Conair also Inc., gaged Supermarkets, (1982) (un- employee extensive solicitation NLRB 1291 grievances, variety fair subsided several months threatened to terminate benefits, prior election; employee delayed company and did communi- reinstatement not masse; practice Compare high unfair labor strikers. cate en level threats officials did Dairy II, threats; separation geographical United NLRB 772-74 with Part make I, pp. supra 1360-1361. unit members diffused coercive impact); Inc., Carpets, Fred Lewis 260 NLRB “outrageous” “per- The NLRB has found (1982) (no grievances, 843 surveillance; solicitation vasive” other misconduct cases. company all committed viola- See, e.g., Restaurant, Inc., Sambo’s single day). tions on enforced, (1980), (9th 641 F.2d 794 Cir.1981). cases, The Board decided these however, approved bargain yet also 68. This court when did not claim the authori- Oil, ty ing nonmajority bargaining order in Chemical & to issue Atomic Workers orders to remedy (D.C.Cir.1971), Consequently, Int’l such 445 F.2d 246-47 conduct. it is not Union denied, analyzed clear that t. situations cer 713, presented rigor necessary (1972), involving to deter- 30 L.Ed.2d 730 a case order, nonmajority bargaining highly mine whether a numerous and sustained coercive unlaw all, authority practices. if within the Board’s remedial ful whether, as strike, of We not decide in this case significant episodes do long month misconduct, rule, grave union general Picketing was occurred. striker violence egregious even if offset more opening on the disorganized massive and misconduct, imposition of precludes Board attempt- April Employees days, Compare order. remedial line encountered picket to cross the Center, F.2d Curing Triumph NLRB v. shoving. strikers pushing Uncontrolled 462, (9th Cir.1978), and Donovan 476 traffic, rocks, slashed threw obstructed 1316, 1321 (2d Cir.1975) (in 520 F.2d tires, windshields. Several and smashed bargaining propriety majority of deciding injuries. These workers sustained minor “effect of should balance order Board found, incidents, the ALJ were chaotic of gravity against the Company’s violations NLRB at Union-planned. 261 See denied, 423 misconduct”), cert. the Union’s nn. 1287 642 L.Ed.2d 1053, 96 46 U.S. arrival of of evening July On the Note, Bar Union Violence & with (1976), premises apparent for no a truck at Conair’s Laura Approach A to Orders: New gaining violent business reason occasioned further 1640,1658-65 (1979) Modes, U.PaL.Rev. assaulted incident. The truck driver was gravity focus on (advocating exclusive damaged. his truck was id. and See misconduct).70 only address union We 1232-36. is when a strike at hand: circumstances testimony The ALJ determined from the out peaceful, marred generally some the strik- provoked that “victims” short contained within a of violence bursts own un- ers’ misconduct and that Conair’s direction, we not traced to union span and created a “volatile situa- lawful activities to the Board’s prepared declare are not 456. He further tion.” id. at n. bar See otherwise appropriate issuance of an that, two following found the chaotic first order an abuse of discretion. gaining strike, violence subsided. See days V. Remedies long Sep- In from April

id. stretch tember, concluded, III, the “strike was supra, ALJ in Part For the reasons stated peaceful in a manner generally portion conducted we decline to enforce predicated directives significant picket with no line misconduct.” Board’s “make whole” discharge of strikers upon alleged Id. at 1287.69 partner record, police, another and on a later date beat 69. On review of the we concluded findings employer 8(a)(1) supports plant; the ALJ and § substantial evidence underlying outside violated supra pp. employ- by coercively interrogating these 8(a)(5) observations. § 1367-68. ees, discharge, soliciting employees threatening union, refusing and to bar- withdraw balancing ap- 70. For the Board’s five-factor gain). Maywood proach problem, see Plant rulings refusing to enforce For court Plastics, Grede NLRB misconduct, bargaining after union see orders Board has declined issue (2d Carpets, 463 v. World F.2d Cir. bargaining when union’s misconduct orders 1972) (picketers threatened nonstrikers serious, considerably more em- and the cars; plant managers in low and sticks chased considerably ployer’s grave, mis- less than the promised supervisor em occasion level one conduct in this case. See Allou demonstrated ployees stated that a benefit and on another Distribs., Inc., (1973) (six 201 NLRB company president warehouse would close deliberately agents plant entered and then accept union); United NLRB v. rather than employ- threatened and intimidated all ten unit (2d Corp., 391 F.2d 829 Mineral Chemical & petition; they ees until employer withdrew decertification 1968) (union representative numerous and 8(a)(1) 8(a)(5) Cir. violated and § § employee, grabbed anoth pickets one knocked soliciting promising petition, im- decertification severely benefits, refusing bargain); ground, proved owner so Air- er to and beat Co., hospitalization; Fireplace required craft Mantel months & he over five (1969) (union deliberately engaged 8(a)(1) 8(a)(3) in extended § violated damage; campaign property creating impres intimidation employee, discharging one by refusing 8(a)(5) to bar- violated § surveillance, soliciting employee an sion of gain); (1963) NLRB 1592 Laura Modes surveillance). engage in (union representatives partner inside one beat trying plant, “pushed employee call around” A. The Nonmajority Bargaining Order April explain We below why, 1977.71 despite acceptance our of the Board’s evalu- for the first time in the “outrageous” ation Conair’s conduct as long NLRA,73 history square court “pervasive,” reject we the Board’s non- ly held that the NLRB authority majority bargaining remedy. order In all despite issue a the absence respects, uphold other we the Board’s reme- of tangible evidence that the union ever dial order. We divide our discussion of the support secured the of a majority of the Board-imposed remedies into three parts: employees.74 affected The full Board itself (1) order; (2) extraordinary did not rule unequivocally on the question notice and access generally; remedies until the case hand.75 The issue the requirement president that Conair’s vexing76 because it upon trenches em personally read the Board’s remedial notice ployee choice, freedom matter at the assembly of current employees.72 very center of our national labor relations require “make whole” require Other directives Co- case before it did not resolution of the (1) discriminatorily nair to: charged reinstate all dis- preliminarily,” “conundrum ... even noted appropriate pay strikers with back that pan it not “d[id] share Third Circuit [the computed day awards of their uncon- [general confidence el’s] that the Board’s reme work; ditional offer to return to make authority is so broad” as dial] to embrace the previously any all whole reinstated strikers for power employer bargain to order an to with a pay resulting Company’s loss of from the dis- concretely union that has not demonstrated criminatory delay reinstating them after majority support. Teamsters Local 115 v. work; their unconditional offer return NLRB, 392, 7, (D.C.Cir.), 640 F.2d 397 n. 398 (3) rehire all strikers reinstated after the strike denied, 827, 119, cert. 102 S.Ct. 70 subsequently discharged, appropriate but with (1981). L.Ed.2d 102 pay back awards. 261 See NLRB at 1195 (Board 1283, Opinion); (ALJ Opin- id. at 1289 Dairy, supra, 75. The remand in United ion). requirements unquestionably These are disposed by panel consisting of a of three power. within the Board’s broad remedial of the five Board members. of Two these ad- generally Dodge NLRB, Phelps Corp. v. 313 position hered to their earlier that the NLRB 845, 849-855, 177, 187-200, 61 U.S. 85 authority possesses nonmajority a issue bar- L.Ed. 1271 order; gaining “recognized the third the Third upon binding decision as Circuit’s the Board for earlier, 1360, supra p. posi- 72. As stated our purpose deciding that case.” Conair diverge tions on the Board directives listed Corp., (1982) (dis- 261 NLRB 1191 n. 14 Judge Ginsburg above first and third. Dairy II). Thus, cussing majority United Judge Scalia hold that the Board lacks authori- never, case, the Board has until ty issued a nonmajority order; bargaining to issue a nonmajority order on Judge the basis of its own bargain- as- Wald would enforce authority ing sessment that it has do order for so. the reasons stated her dissent- Scalia, ing opinion. Judge Judge Wald and by Judge the reasons out Commentary, generally set Wald in Part favoring V.C 76. while non- opinion, uphold presidential of this the Board’s bargaining cases, egregious orders in directive; reading Judge Ginsburg dissents on Bok, Compare is far from unanimous. The this issue. Regulation Campaign Representa- Tactics in tion Elections Under the National Labor Rela- 73. The Act been in effect since 1935. See Act, (1964), tions 78 Harv.L.Rev. 132-39 Act, National Labor Relations ch. 49 Stat. Golub, Propriety Issuing Bargain- Gissel (1935) (codified 449 as amended at 29 U.S.C. ing Orders Where the Union Has Never At- (1976)). §§ 151-169 Majority, (1978), tained 29 Lab.L.J. 631 Note, Dairy Cooperative United Farmers Asso- NLRB, Dairy Coop. 74. United Farmers Ass’n v. Bargaining ciation: Orders in the Ab- (3d Cir.1980); 633 F.2d 1054 cf. NLRB v. Em Showing sence of a Clear of Pro-Union Ma- pire Corp., (6th Cir.1975) 518 F.2d 863 n. 3 jority, (1980) (all 80 840 advocat- (stating in dictum is clear that the “[i]t Colum.L.Rev. authority nonmajority Board to issue bar- may, egregious Board where it finds unfair la gaining orders), Hunter, Minority with practices, Conair: bargaining bor enter order even Bargaining NLRB, though Usher in Orders 33 the union is unable to demonstrate (1982), Ostan, (citations Bargaining represents majority”) omitted); Lab.L.J. Orders: NLRB, Dairy Revisited, and United J.P. Stevens & Co. v. Gissel Farmers F.2d (5th Cir.1971) (1982), (strongly suggesting 521-22 RelX.J. and 49 Geo.Wash. Employee dictum). court, panel (1981) (all questioning same in A of this al Board author- L.Rev. though leaving question open ity orders). nonmajority bargaining because issue the Board a card Absent port.78 orders Nonmajority policy. au- Board lacks of reliabil- degree if the pose this dilemma: with estimate cannot them, offend employers who to issue thority respond- would employees how ity escape will egregiously most the law there- Inevitably, election.79 in a free ed arse- remedy in the NLRB’s stringent most re- order nonmajority fore, a nal; authority and Board has the if the with a choice freedom employee places and incessant patent it to sanction exercises guess educated agency’s government employees practices, unfair a union with better will fare period77 prolonged for a may be saddled one.80 than without majority sup- enjoying with a union elections, per forty-eight while recognized cent of a nonma- on the basis 77. A union having over qualify cards from jority bargaining for the authorization does not those order seventy per won sev- one-year protection cent of the from decertification petitions enjoyed enty-four per competing elections. union election cent omitted). (footnote election. See a valid Board unions certified Id. at 565 9(c), 29 U.S.C. recently reported § Relations Act has not been National Labor this data However, Truesdale, 159(c) (1976). has con- updated. from John C. See Letter sistently Taylor, held that an under Secretary, L. Carl Executive bargain so for a reasona- (Sept. a union must do attorney of Commerce for Chamber year), period (generally without ble one time 1982), reprinted Chamber of in Brief of the See, e.g., regard majority status. union’s Amicus Cu- States as the United Commerce E., Inc., Plastics Keller (1966); app. riae at A-l Foundry and Mach. Poole 34, Bros. Co. (1951). also Franks majori- See 36 NLRB has achieved a card the union 79. When 819, 64 S.Ct. bargaining U.S. v. 321 ty, a remedial Board assumes the (1944) (“[A] bargaining relation- 88 L.Ed. 1020 by employer’s illegal conduct rectifies the order permit- rightfully ship established must be once Conair, quo restoring 261 ante. See the status peri- for a ted to exist and function reasonable Water, (Chairman Van de NLRB at 1196-97 concurring given be a fair chance to od in which it can dissenting part). part and in in Moreover, succeed.”). the union and em- once indulged assumption when a cannot be That majority bargaining signed ployer a collective have employees never manifest- the of pre- agreement, Board’s contract bar rules at approval id. of unionization. See ed sumably bargain- a in that will bar new election Hunter, part concurring (Member and dis- in agreement, ing unit for duration (union campaigns senting part) are in election years. longer provided three it lasts no than employee “subject flow in sentiment to ebb and Corp., NLRB 1123 See General Cable do with con- as has little to that as often not otherwise, duct, engaged in one of lawful or Weiler, omitted); (footnote parties”) cf. deny who doubt or 78. Board members Rights Keep: Securing Workers’ Promises bargain- authority nonmajority NLRB’s to issue NLRA, Self-Organization 96 Harv.L. Under employees ing pointed out orders have Dickens, (1983) (citing Un- W. Rev. against representation in more collective vote Campaign Representation Elections: ion Conair, than half of all Board elections. (Oct. 1980) (unpublished Ph.D. disser- Vote 108 (1982) (Chairman 261 NLRB at 1197 & n. 35 Economics, tation, Department Massachu- of Water, concurring part de in and dissent- Van (unions Technology)) would of setts Institute Dairy ing part) (quoting in United Farmers only of elections studied if won Ass’n, 46-47% Coop. 1043 n. cleanly); entirely campaigned su- employer had (Member Penello, Dairy I) (hereafter, United majority (unions pra a of elections note 78 lose dissenting part) concurring part and in in been cards have even when authorization reports). citing 1980 NLRB annual 1978 and employees). signed by of the affected 50-70% relationship union authoriza- On the between results, and election the Fourth Cir- tion cards majority sub- observed that a 80. The Board’s Logan Packing cuit said in NLRB S.S. showing, “approxi- such as the stantial card Cir.1967): (4th 386 F.2d 562 case, mately percent” shored 46 NLRB-imposed bargaining shown present- McCullock Board Chairman up order. an indi- to the Bar Association data ed American However, the Board did not at 1194. cating relationship large between card- some bargaining a to its issuance of deem critical majorities signing Un- and election results. “any showing of a rea- order ... affirmative presented cards ions authorization which majority projecting for a union’s thirty fifty per employees sonable basis cent of the from Bok, supra elections; support.” note per Id. But cf. those cent of the won nineteen having remedy (nonmajority bargaining order fifty to sev- authorization cards is a enty to “cases in which there per should be confined won cent of Nothing governing now in the text of itself a Gissel reversed Fourth Circuit statute, legislative suggests history, or decision which had refused to sanction a serious Congress contemplated general despite author- misconduct and of proof in face ity designate select or union had once obtained authorization cards for employees, majority of whom from a employees.82 The Court never signaled arrangement. assent observed, nonetheless, its views and guid- Nor do lower court secure judges have those the Fourth Circuit were not far Supreme ance from Court this issue. apart: lawlessness, To discourage employer ar- actual area disagreement be- [T]he guably positioned the NLRB should be position tween our here and that choose for the prospect when Fourth Circuit large practical election, of an untainted held within a rea- refusing matter. While to validate the frame, sonable appears time remote. We general use aof bargaining order re- recognize the appeal position that a cards, liance on the Fourth Circuit never- nonmajority bargaining order be may theless left open possibility of impos- only potentially effective means to check an order, without need of employer’s designed unlawful conduct inquiry into majority status on the basis organizing a union’s nip campaign otherwise, cards in “exceptional” Nonetheless, bud.81 we believe that cases marked “outrageous” “per- statutory gap we face is deep too vasive” unfair labor practices. Such an agency or court to fill. A fundamental order would an appropriate be remedy for policy choice is at Is it appropri- stake: ever practices, noted, those the court they if ate to an agency’s “big (even substitute if are of “such a nature that their coercive good) brother” judgment effects cannot be appli- eliminated employees’ express choice of a bargaining remedies, cation of traditional with the representative? decision, That basic we be- result that a fair and reliable election lieve, Congress, should be left as the cannot be had.” organ government accountable Gissel, U.S. S.Ct. at 1939- people establishing the main lines of our [quoting Logan Packing, 570) 386 F.2d at national labor relations policy. (emphasis added). the Supreme recognized, As Court 1. The Gissel dictum Fourth Circuit’s in both decisions Gissel and Supreme yet The has not Court confront Logan Packing generally disfavored reme- ed a case it requiring to decide whether the Indeed, bargaining Logan dial orders. the power has to issue a bargaining Packing dictum indicated the Fourth Cir- order where the union has not shown ma cuit’s whether uncertainty nonmajority a jority status. In NLRB v. Packing Gissel be bargaining order could reconciled with 575, 613-14, Co., 395 U.S. 89 S.Ct. egregious the statute even in the most cir- however, (1969), 23 L.Ed.2d 547 of light guaranty cumstances: of “[I]n 1939 - High Court, citing dictum from NLRB 7 of to employees’ rights not be [NLRA] 562, 570 Packing F.2d Logan S.S. use of a represented nonmajority bar- [the (4th Cir.1967), appeared contemplate order], gaining if ever must be appropriate, of such an possibility extraordinary order. reserved for cases.” F.2d possibility Weiler, (bar- supra reasonable the union would 81. But cf. note at 1795 ultimately prevailed gaining imposed by years of absence order the NLRB after employer’s acts”). Instead, organizing “highly unlikely” unlawful a union’s is “[t]he drive predicate nonmajority “produce enduring critical to issuance a a viable and of collective reasoned, order,” bargaining bargaining relationship”). the Board is its finding employer’s exceptional that the conduct possibility repre- has “foreclosed the a fair of 82. Four cases were consolidated for decision in Gissel; sentation election.” 261 NLRB at majorities. all four involved card appro- is misconduct of showing omitted) (emphasis add- (footnote at 570-71 where re-emphasize, we should priate, ed). point at showing that one also a there is dictum, recit- Court’s Gissel Supreme The case, a in such majority; a the union had dictum, has read to been ing Fourth Circuit em- course, effectuating ascertainable of two characteristics: cases with encompass important a choice becomes as ployee free the most falls into employer’s conduct deterring employer misbehavior. goal as campaign the union’s egregious category; fashioning remedy in the exercise majority.83 a card point achieved at no then, discretion, proper- can are com- characteristics with these Cases the extensive- take into consideration ly Gissel one” “category described as monly practices unfair employer’s of an ness cases. con- effect on election past of their terms holding Supreme Court’s The recur- of their and the likelihood ditions Gissel, however, second is confined finds If the Board future. rence the union shows in which category,84 cases erasing the effects possibility majority employee had point that at one it a fair practices ensuring past support: rerun) use of (or fair election holding here is only of our The effect remedies, is though present, traditional of the bar- use approve once employee sentiment slight and extraordinary cases gaining in less would, on through cards bal- expressed which less pervasive marked ance, protected by bargaining be better un- tendency still have nonetheless order, an order should issue. then such strength impede majority dermine 1940-41 at at 89 S.Ct. au- 395 U.S. The Board’s processes. the election omitted). added) (citation The (emphasis lesser order on a thority to issue such an position and that See, our here e.g., at ment between Local F.2d Teamsters Gissel, large.” Fourth 613, Circuit 396-97. Thus, High Court’s at 1939. S.Ct. Supreme reference Gissel Court’s quality apparently was on the concentration possibility Board-imposed or- Packing Logan indicated conduct inquiry into need of ders “without order, justify might not on the perhaps read to indicate more status” has been “without an order could issue notion that such Prior its reference than the intended. Court inquiry majority status.” into need Packing dictum, Logan to the Fourth Circuit’s High probability referred that the Court Supreme out Court had set its reasons casually dispensing inquiry into approach disagreeing Fourth Circuit’s with the heightened the statement status is issues,” major 395 U.S. at “on all immediately out after set the Court made Logan 1939, including distrust of un- that Circuit’s Packing dictum: cards, ion its view authorization add, itself, long had we should The Board Taft-Hartley bar- amendments had ruled out order, issuing bargaining policy of a a similar majorities, gaining of card orders on the basis 8(a)(5) or even of a violation in absence § accept the Board’s Cumber- and its refusal to demand, only bargaining when that was a available, Id. 89 S.Ct. at land Shoe doctrine. at remedy for substantial effective then softened its multi- 1930-1938. Court practices. unfair labor rejections positions ple of Fourth Circuit Gissel, 614, at 1940. The U.S. at 89 S.Ct. 395 open pointing “left Circuit had out of the as illustrative cited two cases Court bargaining possibility” issuing orders with- of policy: of Ameri- United Steelworkers Board’s sufficiently inquiry majority in out into status NLRB, (D.C.Cir.1967), F.2d 770 v. 376 ca 613, 1939; egregious cases. Id. at 89 S.Ct. at 479, NLRB, Penney F.2d 485-86 v. 384 J.C. Co. (Board Logan Packing, at 386 F.2d 570 see “may employer Cir.1967). mis- (10th involved Both power” impose bargaining have the destroy designed card the union’s conduct remedy egregious unfair labor order as a majority. practices). dictum, Logan Packing, category had mentioned includes Because in A84. third Gissel enough Board-imposed possibility or extensive bar- not serious raised the violations bargaining because remedies gaining “exceptional order in cases” marked warrant orders authority concededly “pervasive” would “outrageous” labor within the unfair adequately 395 U.S. a fair election. See practices, Supreme ensure in Court Gissel 615, disagree- at 1941. say 89 S.Ct. at able to that “the actual area holding in Gissel to “with the task devising Court thus anchored its remedies to ef principle that majority the NLRA’s core policies fectuate the Act.” NLRB v. accept free should be Seven-Up 344, 346, Bottling U.S. reject union A representation. bargaining 287, 288, (1953).86 97 L.Ed. 377 S.Ct. In case, in two” “category order Court task, this performing Board has wide reasoned, not mis- “deter[s] discretion, subject to limited judicial re behavior,” it ascertainable “effectuat[es] Paper view. Fibreboard Corp. Products v. free choice.” employee NLRB, 203, 216, 398, U.S. 85 S.Ct. cases, In one” “category by con prime 13 L.Ed.2d 233 A function of trast, free is not employees’ choice as judicial review, however, limited is to certainable. There is tension between the ensure that the Board’s decisions are con objective of unfair deterring practices See, sistent with the premises. Act’s basic effectuating expressed senti majority e.g., H.K. Porter v.Co. 397 U.S. dictum, reciting believe, ment. Dictum we (1970) (Board’s S.Ct. L.Ed.2d 146 is not reliable indicator of the Court’s authority remedial does include direct probable view on a tense issue. “[A]ll an employer to accede particular to a can fairly be said the Gissel is [of dictum] clause); contract cf. Republic Corp. Steel that the left open Court the issue of wheth NLRB, 61 S.Ct. 85 L.Ed. 6 er the Board has the statutory authority to (1940) (Board exceeded its remedial authori issue a absence of a in ty ordering repay govern showing that the enjoyed major union ever ment wages paid to illegally discharged issue, ity support.”85 In deciding that workers because Board is not empowered to statute itself our should be dominant guide. public vindicate rights). 2. The pillars: Wagner, Act’s twin freedom Senator architect the original majority NLRA,

choice and rule in employee said of rule: majority selection representatives [Democracy in industry must be based is charged upon by section same principle as in democracy 10(c) Act, 29 160(c) (1976), rule, U.S.C. government. Majority with all its I, Dairy (Member 85. United 242 NLRB at 1040 majority, not the union’s card could be dis- Penello, concurring part dissenting pensed Supporting interpretation in with. Conair, part), quoted in immediately 261 NLRB at following the sentence the ones (Chairman Water, concurring part Van quoted Judge de dissent Wald’s in which the dissenting part). explicitly majori- referred Court to “the union’s ty.” 395 U.S. at Judge Sinclair, S.Ct. suggests Wald that in one of short, point that the union in resolved, Sinclair had opinion the four cases the Gissel majority support once achieved was not' an Supreme approved in fact Court issuance of a merely stating item case, raised the facts inquiry order without into the un- 1927, only id. at to be ion’s status. See Wald dissent at thereafter set as aside irrelevant. apparently Supreme 1392. She reads Supreme words, While the Court’s discussion of Sin- Court’s 8(a)(5) “even in the absence of a § crisp, violation,” clair is less than we doubt that more is to mean “without need of fairly inquiry High extractable from the into status.” We do Court’s words not com- prehend why employer engaged than this: if the these statements should be in sufficient- re- garded synonymous. ly egregious At coercive and the the time the Court Gissel, majority support, decided employer Board doctrine had it that once had then even if the good bargain employer’s grave could in faith refuse to offenses do not include a proffer majority 8(a)(5) violation, in bargaining may face of a union’s of a card a § is- committing forthwith, 8(a)(5) i.e., without explo- an § violation. sue without further Board See, e.g., prospects Aaron Bros. 158 NLRB 1077 for ration of an untainted rerun elec- Thus, (1966). 8(a)(5) required an § violation a tion in the foreseeable future. majority plus something employer card more— 10(c) provides, part, in request. 86. Section relevant that rejecting bargaining bad faith in a .., Court, Sinclair, “the shall take discussing such affirmative ac- When the Gissel policies bargaining tion as will ... effectuate the of the said a order could issue “even in the 10(c), 8(a)(5) likely Act.” National Labor Relations Act absence of a 29 § § violation” it meant employer’s 160(c) (1976). bargain, refusing § bad faith to U.S.C. 1382 against for or choices—whether enforce protection the best

imperfections, employees: is the surest union —made as it rights, just workers’ mankind that political liberty guaranty of assures that amendment A committee has discovered. yet are employees states that the law when section guaranteed the rights half to a near (1935). For 7571 Cong.Rec. 79 from com- prevented 7, will be centrally stated: Act has century, rights to exercise such employees pelling selected designated Representatives words, In other will .... against their of collective purposes for the employees Congress grants when employees in majority activities, it specified right engage shall purposes, for such appropriate unit right grant them also means of all representatives be exclusive they if do therein engaging from refrain unit.... in such to do so. not wish 372, Act, ch. Relations Labor National 27 245, Cong., 1st Sess. 449, (1935) (codified H.R.Rep. No. 80th 453 9(a), 49 Stat. § (1947) 3425 (1976)) (em- Cong.Rec. 93 159(a) (1947). also 29 See § amended at U.S.C. (“This Hartley) (statement freedom of choice added). Congressman The allied phasis right to ... explicit received statement guarantees also bill principle [t]he [workers] to select workers join the start: fellow from the[ir] own of their bargaining agent collective right have the to self-or- shall Employees is not one that say, is to choosing, form, join, or assist labor ganization, ”). collectively upon them .... bargain forced organizations, own their through representatives one ex Congress authorized has . choosing... rule that a union’s general ception Act, 372, 7, ch. Relations § National Labor re bargaining agent as exclusive selection 449, (codified as amend- (1935) 49 Stat. of a approval advance quires the add- (1976)) (emphasis at 29 ed U.S.C. § of the con recognition In of the workers. ed). needs, Congress industry’s unique struction to validate in 1959 the NLRA responded to concerns amended Congress industry. agreements in that “prehire” into being pressured were Disclo unions; Labor-Management Reporting section it amended joining 705(a), Pub.L. em- Act of § sure Wagner expressly, Act to provide, (codified at 29 519, 545 U.S.C. to refrain right have the Stat. “shall also ployees the Act 8(f) of 158(f) (1976)).87 activi- Section such § or all of [concerted] industry Act, that a construction provides now Management Relations ties.” Labor an unfair labor’ not commit 120, 101, 136,140 does employer ch. Stat. § a collective by signing plain legisla- practice that the Report House made the union union before agreement with a sought the Board from preclude tors supp majority employee established employ- on the imposing agency’s choice view, plain the main rule in ees; With instead, respect the NLRB was ort.88 Bridge, history: Orna legislative & explained Ass’n of Structural national 87. As Workers, Iron mental [allowing indus- construction One reason for (1978). See also L.Ed.2d prehire agree- try employers to enter into McNeff, Todd, Inc. v. Jim representing then ments with unions not 1753, 1755-57, — U.S. —, —, 75 L.Ed.2d 830 103 S.Ct. necessary employees] is that it is 8(f) (discussing general purpose of his labor costs to know enacting it). Congress’ rationale for upon making the which his before estimate practice labor ... not be an unfair be A second reason is shall bid will based. [I]t engaged primarily in employer must be able to have available for an industry building to make ready quick supply and construction of skilled craftsmen engaged covering employees agreement referral. industry building and construction H.R.Rep. Cong., ... No. 86th 1st Sess. building Admin.News, organization (1959), pp. of which Cong. & with a U.S.Code employees ... 2424, 2442, are members quoted and construction v. Inter- NLRB Local

1383 however, Congress expressly Workers, limited the Iron supra; McNeff, cf. Jim Inc. “prehire” agreement 8(f) exception: Todd, section — U.S. at — —, v. 103 S.Ct. entering denies unions agreements such at 1757-1759 (emphasizing 8(f) section one-year protection from petitions election must light be construed in of Act’s domi accorded certified unions section 9(c)(3). nant' free choice majority rule princi National Labor 8(f), See Relations Act § ples). 158(f) (1976). U.S.C. § In harmony with the intention of Nonmajority bargaining orders are Congress to permit only a exception narrow not within the NLRB’s current reme- to the freedom of choice-majority rule dial discretion premise, precedent Board underscores the Our national labor policy relations is de- voluntary, voidable character 8(f) of section signed to ascertainable em- “effectuat[e] agreements: an employer who refuses to free ployee choice” and “expressed” majori- abide by 8(f) agreement an § does not Gissel, ty sentiment. U.S. thereby violate the duty imposed to bargain at 1940. A S.Ct. nonmajority bargaining 8(a)(5), section unless the union can dem order departs design. from this Absent a See, onstrate its majority status. e.g., R.J. union election victory or some other con- Smith Construction 191 NLRB 693 crete manifestation of majority assent See also NLRB v. Local Inter union representation, is impossible to national Association of Bridge, Structural & project the employees’ choice reliably; im- Workers, Ornamental Iron position a bargaining order in cir- these 651, 655, (1978) S.Ct. L.Ed.2d cumstances runs a high risk of opposing the (prehire agreement is voidable “until and majority’s will.90 Judge Wald points out unless majority support attains [the union] effectively dissent the majority’s unit”), the relevant quoted in Jim will also may be frustrated when an em- McNeff, Inc. v. Todd, — U.S. —, —, ployer’s unlawful acts have eliminated the 1753, 1757, L.Ed.2d 830 (1983). prospect of a reliable election. would She vein, In the same Supreme Court has substitute the coercion Conair imposed 8(f) ruled that section agreements do not an opposing coercive imposed by force shield unions from the Act’s restrictions on government. Without a clear direction picketing coercing aimed at employer an Congress, recognizing prepared into we are a union or to rec- at pressuring ognize authority, arrogate selecting particular into administrative or labor organization power ourselves, bargaining representat remedy possible as its one ive.89 Local injustice International by taking Associ the substantial chance ation Bridge, & Structural Ornamental imposing another. because ... practice status of such labor It shall be an unfair labor for a labor organization has not been organization established under agents picket or its ... or provisions prior of section 9 of Act picketed, picket cause to be or threaten to or making agreement of such an .... picketed, any employer be cause to an where 8(f), National Labor Relations Act § 29 U.S.C. object forcing requiring thereof or an em- 158(f) (1976). § ployer recognize bargain or with a labor industry, Outside the construction an em- organization representative as the of his em- ployer recognizes who a union before ployees, forcing requiring employ- or support is demonstrated commits an unfair la- employer accept ees or select such practice good bor if even acted in organization bargain- as their collective represented major- faith union in fact ing representative, organi- unless such labor ity employees by the time formal collective currently representa- zation is certified as the bargaining agreement signed. See ILGWU tive of such .... (1961) (upholding 366 U.S. 731 8(b)(7), National Labor Relations Act § determination violated NLRA 158(b)(7) (1976). U.S.C. § 8(a)(1), §§ violated 8(b)(1)(A)). supra 90. See notes 78 & 79. 8(b)(7) provides, part:

89. Section of the Act Given premise. rule choice-majority note, we does “expertise,” Administrative however, statute, we shape on the weight command current great to appear not nonmajori- placed not authority Congress has statutory Board’s believe question the NLRB’s order. within bargaining orders nonmajority bargaining ty to a issue arguments Strong egregious has seen discretion.93 NLRB remedial granting before. of Conair’s against the order for and conduct on made can be Act, administering Adminis- Through question. decades in authority Board initiative, no issued, on its own however, view, it in our should judges, and trators response to in nonmajority bargaining order debate preempt anticipate or endeavor “perva- and “outrageous” political employer’s an of this issue and decision first so, very It did for sive” conduct. arena.94 case; that action time, and it took in this bare, margin. Rem- a one-vote and Access Extraordinary Notice B. Generally edies is torn the NLRB past, as in the

Today, order is- nonmajority bargaining over earlier,95 and restate set out We three-member sue. The current ac and extraordinary notice here, a set of that, an chilled atmosphere in maintains re in the Board’s included provisions cess anti-union behav- employer’s egregious violations Notice of Conair’s medial order. order ulti- ior, nonmajority bargaining order, desist cease and of the Board’s and freedom of mately employee will enhance and English and both Spanish written in maintain, insis- members choice.91 Two Company’s presi signed by personally of the conflict be- tently, that “resolution at his employee to each dent, is to be mailed and remedial needs” majority rights tween home; posted be copies are to or her nonmajority by the issuance of in notice to be is Company premises; employ- “fraught danger orders is publications; appropriate in Conair cluded only Supreme ee freedom of choice.”92 weekly twice published is to be and it in inconclusive. expression point Court For two newspapers. in four weeks local em- the one time it authorized Congress, Union access to afford the Conair is years, without recognition of ployer boards, employ and to Company bulletin majority employee support, did showing of areas in nonwork Company premises ees on confines. so within narrow A current list time. during nonwork is to be and addresses names employees’ wishes to add to the Congress If years, for two Union. Also furnished industry permit and exception construction of, equal notice given is to be Union bargain nonmajority impose the Board to to, Company respond time and facilities employer’s for an ing orders as sanction concerning union speeches it campaign, anti-union flagrantly unlawful Further, prior representation. qualifications so with whatever may do in years two within Board election held prevent appropriate deems the Union is participates, the Union freedom of which too far from the veering bargain by refusing 8(a)(5) Conair, of the Act lated § 1194. See 91. union-proposed dues good in faith over (refer- at 397 Local 640 F.2d Teamsters 92. rejected provision, as outside Court checkoff ring in United Member Penelio’s decision authority order that em- remedial Board’s Conair, Dairy I). at 1197 261 NLRB See ques- ployer clause to the contract accede Water, part concurring (Chairman Van de tion). (Member dissenting part); at 1199 id. Hunter, concurring part dissenting in well-presented argument the debate For 94. I, (Mem- Dairy part); at 1043 United really beside the “is over orders dissenting Penello, part concurring in ber regulatory frame- point,” the current part). Weiler, supra reshaping, see basic work needs note 93. Cf. H.K. Porter Co. v. (1970) (while not 25 L.Ed.2d 146 supra note 44. ruling overturning vio- permitted be to deliver a 30-minute company, and should be for reserved ex- speech to employees Company time. See traordinary cases no remedy where lesser 1195; (ALJ 261 NLRB at id. at 1285 Opin- will purpose. achieve remedial How- ion). ever, we uphold the Board’s exercise of ordering discretion in this remedy unusual

The Board has ordered similar measures here because we find uniquely appropriate in involving several other cases pervasive patterns circumstances to warrant it. illegal employer conduct. This recently court reviewed al upheld requirement The a particular man- provisions most identical set of in Team agement official read to employees the (D.C.Cir.), sters Local 115 v. 640 F.2d 392 Board’s notice of their rights, although denied, rt. 102 S.Ct. ce used,97 rarely subject has been judicial (1981). 70 L.Ed.2d 118 respect With scrutiny in this court before. In Teamsters measures, the appropriateness of these this Local 115 v. (Haddon House), NLRB case is indistinguishable from Teamsters (D.C.Cir.1981), F.2d 392 this court refused Local 115. We have upheld the Board’s requirement to enforce the Board’s that the determination here that Conair’s extreme president of company personally read the fair, conduct ruled out a reliable election in notice. The court reached that conclusion the foreseeable future. Teamsters Local after painstaking review of the facts 115 concerned an employer whose “numer case, resting reversal of the Board ous and egregious” unfair labor practices particularized on “the lack of a need” for “may poisoned have so the well” that a fair such an ad hominem remedy. Id. election longer was “no viable.” id. at important Most our purposes, the court Mikva, Judge 399-401.96 writing for found that in record Haddon House the court in Teamsters Local cogently personal revealed little involvement explained why extraordinary notice and ac president in the employer’s numerous cess un- remedies are within the range practices. fair labor The ALJ in Board’s corrective action when that case employers conduct anti-union had not campaigns patently remedy, recommended such a unlawful manner. We adopt reasoning his the Board itself special had articulated no uphold the Board’s above-stated notice reason for singling president out the as the requirements. access indispensable purveyor of the Board’s find- ings and orders. The Board’s only ration-

WALD, Judge: Circuit president’s ale —that personal reassur- C. The Notice-Reading Order ance to the employees would have greater impact presumably justified Board, following The —would the recom the same remedy prac- unfair every ALJ, mendation of the ordered presi tice case. The court concluded in these dent and owner company personally circumstances that the personal dignity in- to read aloud assembled employees terests of the president outweighed the the Board’s notice of employee rights and marginal benefits of requiring personal his employer obligations. Corp., Conair participation public reading. (1982). NLRB The Employer court in Haddon House was careful to argues note requirement is punitive, presence of different oppressive and circumstances in unwarranted. We are Dairy Cooperative United Farmers support language aware that there is Associa- tion, (1979), of a recent decision of this remanded court view requirement that such a is particularly grounds, (3d other Cir.1980), F.2d unpleasant for the chief executive officer where the Board had ordered presi- also Board, authority imposed 96. The then uncertain as to its requirement 97. The Board such orders, nonmajority bargaining to issue did at least two cases in addition to those dis- Inc., Supermarkets, cussed infra. See United issue one in Teamsters Local 115. (1982); Loray Corp., 261 NLRB 1291 employees, in violation of sec- his promised the notice.98 In to read personally dent many improvements working emphasized 8(a)(1), had tion that case personal participation including “open president’s wages, extensive conditions sought be remedied. grievances in the violations policy” by which were solic- door Rizzuto, as well as Id. at ited. 1264-65. Thus, way in no foreclosed Haddon House officials, issued this high company other egre- in another case possibility at a series promises of and barrage threats the ac- might justify gious circumstances meet- “captive audience” unprecedented of occasioned indignity knowledged personal held to violate section ings, themselves order of a extraordinary by the Board’s n. 15. 8(a)(1). Id. at 1191 at 403. Re- reading. 640 F.2d presidential follow-up in this case grettably, the ALJ’s find- apparent it is Thus specifically itself to again failed to address Board, throughout that adopted by the ings, that in the record the circumstances special crusade at Conair anti-union the relentless here, But as distin- justified remedy. this to de- personally himself Rizzuto committed House, the ALJ who guished from Haddon means, by the drive unlawful feating find- remedy, the and whose recommended dis- of reasoned undermining possibility in this matter were ings and conclusions fear promoting by systematically cussion Board, adopted by ample findings the made Neverthe- improvements. promising and support of fact to the recommendation less, Rizzuto’s Employer the now asserts president required be to read personally the challenging a personal dignity as basis for employees. notice to the to em- that he read aloud requirement Rizzuto ALJ found that President will notice that Conair ployees communicated to personally repeatedly the future.99 engage practices not in such in the ominous threat transfer employees company may a indeed president of Kong plant if the were operations Hong protest oppres- entitled to as ordinarily be 1271. unionized. 261 NLRB he to the em- requirement sive a read shutdown, held plant The threat of itself occasion,100 single a state- ployees, even on a practice beyond to be an unfair labor rights company’s his obli- ment of their amendment, first id. at protection of the inter- dignity the Act. The gations under centerpiece of Conair’s became the requirement must implicated by ests such a campaign. intense anti-union Subordinate may always carefully weighed be be officers, employ- the threat repeating in practices, when unfair labor how- decisive ees, personal Rizzuto’s stressed President egregious, entirely ever are carried out or against as the basis for the animus unions per- management primarily by subordinate 1267, 1269. relocation. Id. at threatened pervasive personal it is the sonnel. But employ- threatened personally Rizzuto also the un- as involvement of President Rizzuto in of benefits such ees with the withdrawal that creates fair labor this case and the em- parties Christmas bonuses justification his personal Union the need and plan if the ployees’ profit-sharing Furthermore, remedy. In order to Rizzuto involvement their personally won. supersed- clearly been the order without sion in IUE case has 98. The Third Circuit enforced ed, overruled, reading actually by public discussing propriety if not our more House, ap- employer had which requirement. not recent decision Haddon Because Board, though remedy proved requirement challenged public reading before designation president permit as reader. an initial attack on review. not its court did not in less loaded Haddon House recast the issue 633 F.2d at 1064. terms, princi- invoking not absolute democratic back our decision The dissent reaches dignity particularized ples the “lack of a but Elec., Machine supra p. International Union Radio & requirement. need” for the (D.C.Cir. Workers v. F.2d 1967), require permits language characterizing Rizzuto to read 100. The Board order “incompatible public reading either ment of as the notice to the assembled together gatherings, Em- principles dignity in smaller as the the democratic Ginsburg ployer at 1289. at 2. deci- chooses. 261 NLRB man.” See dissent Our creat- dispel atmosphere intimidation Act tions to order bargaining with the Un- large part president’s ed in own by upon ion based findings, accepted actions, justifiable statements and it is panel, that no other remedy at least formal require one declaration “dissipate could the lingering effects of [Co- personally him that the statuto- employees’ massive and unrelenting coercive nair’s] ry rights respected will be in the future. any possibil- conduct” which “has foreclosed The Board’s order be reasonably can thus ity holding a fair representation elec- Act, said purposes to effectuate tion,” and that “a remedial bargaining or- punitive, as argued by the Em- der is the to restore way ployer. emphasize While we remedy statutory right their to make a free and such ordered here be re- should uncoerced determination they whether wish extraordinary served for giv- circumstances represented to be collective need, particular rise remedial it is important to recall that a labor organization.” Corp., notice be Conair by president read the is nor nothing more (1982). In the face of less than an official statu- statement of the findings, my colleagues weakly such profess tory rights and to have obligations found frustration and vexation “employers that been violated by Employer. the Under the offend the who law most will egregiously special case, of we will circumstances this escape the stringent remedy most in the this aspect enforce of the order.101 Board’s Maj. Op. at arsenal.” 1378. Yet NLRB’s are they forced to comb the through words Conclusion of statute the and thousands of of pages its the (1) For reasons stated we to decline extensive legislative history for the few the of portion enforce the “make Board’s they thin strands weave into a statutorily- whole” directives on al- premised Conair’s rejection based of the authority Board’s to leged discharge April 22, strikers of on do one of anything about the worst cases of 1977; (2) we to decline enforce the Board’s labor it unfair has encountered in order; in all respects other fifty year history. its I paradoxical, we find it deny Conair’s for review and petition grant cross-petition the Board’s enforce- for can yea incomprehensible, they accept that ment its of order. findings the Board’s of massive violations Employer, of the Act by undermining the

It sois ordered. embryonic support, labor infer and then WALD, Judge, dissenting: Circuit the “purpose” of the Act an intent of the Congress deprive only Board of the I dissent. I that the believe Board had authority under the National Labor Rela- it remedy believes can at some point being mystified statutory provision barring remedy. as We confess to rather such Al- by legal position Judge though alluding supposedly “punitive basis for the taken to the Ginsburg opinion in her does not order, dissent. quality” Ginsburg dissent did, rely, ultimately Haddon House actually appear argue dissent does that facts; particular appears it even concede attempt patent order is “a to achieve ends remedy ap- if the ever it is authorized is fairly than be other those which can said to propriate Judge here. Nor do we believe that policies of effectuate the the Act.” Fibre- Ginsburg argument heavily on rests her NLRB, Paper Corp. board Products v. 379 U.S. suggestion, contrary judgment, to the Board’s 203, 216, 398, 405, 85 S.Ct. 13 L.Ed.2d 233 reading president might that a be less (1964); Virginia Elec. & Power Co. effective; expert such an intrusion into the 533, 540, 63 S.Ct. 87 L.Ed. judgment certainly would be un- Board language While elevated of Finally, appeal principle warranted. barring vaguely ring, the dissent has a constitutional specific remedy performance provision princi- or no constitutional identifies personal inapt. breach of is service contracts ple offended We believe action. principle operates legal That a factual and that more than an affront to the sensibilities of context too remote serve as the basis for required wholly judges justify individual is overturning an exercise remedi- eliminating remedy this from the Board’s arse- legal al discretion. Yet no other foundation for nal. position opinion is evident. The cites no eli- of a support right to employees’ restore the future near found, how- Board also vote. The gible not have a choice to have or make a free basis to ever, a reasonable offbase there was totally union. Either have en- would the Union findings, my colleagues conclude in its responsi- Employ- but for mighty joyed majority support usurped for themselves relying primarily remedial emasculating practices, the Board’s er’s bility unfair its point con- at one in extreme cases fulfill fact that the Union authority upon the poli- mandate to “effectuate support forty-six percent gressional had the Act.” cies Id. at 1194. employees. predicted as to the Certainly conclusions Findings The Board’s I. illegal practices the Employer’s effect of Conair Board found not the ineffectiveness process, the election Act, violations that the had violated but ef- remedies, probable and the alternative that, outrageous pervasive

had been so illegal on the Union’s fect of that conduct words, in the Board’s majority support original ability to obtain even our remedies nor neither traditional involve, ordinary questions than even more and notice reme- extraordinary our access the Board of fact, the utilization linger- dissipate dies effectively can judg- experience expert accumulated massive and Respondent’s effects underscored Supreme ment. The Court has By this unrelenting coercive conduct. deference when necessity judicial conduct, Respondent has foreclosed reviewing such determinations. Comment- holding representa- a fair possibility of a by a circuit court that ing on the assertion exceptional tion these election. Under of posting cease desist order the circumstances, find that a remedial we ordinarily effectively remedy notices would only way order re- bargaining is stated, practices, the Court unfair labor statutory right store their courts and not the ... is for Board “[i]t uncoerced determina- make a free and determination, on its that based to make represented tion wish to be they whether to the effects on the expert estimate as organi- bargaining by in collective labor of practices of unfair labor process election zation. NLRB Pack- intensity.” v. Gissel varying 575, 32, 612 n. 89 basis 395 S.Ct. It was on the of U.S. 261 NLRB at 1193. 32, 1918, L.Ed.2d 547 Of 1939 n. 23 findings these that the Board ordered the Union, support course, always must bargain with Board Employer to explanation and with a reasoned inability Union’s to demon- conclusions spite of the It in the record. did so strate, substantial evidence through cards oth- authorization erwise, here.1 any it had at time obtained 16, (1962), nor objects 8 L.Ed.2d 230 normal Employer the Board failed to 1114 n. The NLRB, turnover, v. making Franks Bros. Co. changed employee the is- circumstances consider 702, 817, 818-19, 703-06, inappropriate 88 321 64 S.Ct. af- U.S. suance of a Shape Ship (1944); NLRB v. Main years passage the unfair L.Ed. 1020 ter the of six since Co., Inc., 434, (D.C.Cir. place. Although F.2d 443 tenance practices it did not 474 labor took changed grounds overturning any particular 1972), offer of cir- is for evidence However, significance cumstances, argues duty of subse has a order. it validity whether, quent example, for of a Board order inquire events as to there among sharp dispute changes subject the circuits composition been Drives, Compare NLRB v. and the Board. or other forces that would Inc. workforce outside , 354, (7th Cir.), cert. denied sub dissipate lingering 440 366-67 tend taint of earli- F.2d Dairy Employees v. & Drivers Appellant nom. General NLRB, er events. Brief for Em- [hereinafter 229, 912, ployer’s majority implicit- 30 L.Ed.2d 404 U.S. 92 S.Ct. 43-44. Brief] NLRB, 963, G.P.D., Inc. v. rejects (1971); ly objection, reaching 430 F.2d 185 this thus issue Cir.1970), denied, (6th rt. statutory agree objec- 401 U.S. authority; I 964-65 974, ce 1193, (1971); fails, my reasoning 28 323 S.Ct. L.Ed.2d tion and I own summarize Cleaners, Inc., 1086, Staub guidance may F.2d NLRB v. whatever offer. denied, (2d Cir.1969), cert. U.S. 1089-90 time, NLRB passage Neither the mere (1970) (up- 25 L.Ed.2d Katz, 748 n. 82 S.Ct. evaluating impact of the unfair repetitions these and other violations multiply of the Act Conair, strength practices

labor the Board fol and du- ration of the impression left on employ- analysis Dairy lowed its United Farmers ees. The same multiplier effect results Association, Cooperative from the manner in which Respondent (1981) (United II), which Dairy identified timed its i.e., unlawful swift conduct — extent, “gravity, timing, and constant and severe initial against retaliation repetition” key of violations as the factors organizational efforts, Union’s a lengthy bearing upon whether the employer’s illegal campaign of unfair labor practices, an conduct was so outrageous pervasive as increase in violations as the election to foreclose the possibility of a fair election. neared, and two unlawful discharges even 261 NLRB at 1192. Summarizing its find after the election. In moment and dura- ings follows, heavy the Board laid stress tion, the timing of Respondent’s unfair repetition on the timing insidious underscored its enduring Employer: violations committed resolve to oppose unionization chilling rights effect on employee means and deeply imprinted on employee a single discharge plant or threat of clo- memories the drastic consequences sure is difficult erase. enough to Several seeking representation. holding subsequent inquire possible Board’s refusal subsequent to consider into events before events) Peoples System, First, issuing bargaining Inc. v. gen- Gas order. it would NLRB, (D.C.Cir.1980); 629 F.2d 35 NLRB v. erate enormous administrative difficulties at (9th Cir.1979) Drug, Western 600 F.2d possibly delay the Board level and resolution of (requiring events). Board to consider certain including Employer basic issues in the case required This court has the Board to liability consider Second, as well as remedial measures. subsequent particularly events when note- Employer’s we would reward the efforts to worthy unusually high events such as an rate postpone the enforcement of an effective reme- turnover, Shape Ship NLRB v. Maintenance dy by attaching every delay normal Co., Inc., 474 F.2d at or the union’s deci- process requirement “bonus” the form of a wholly sive loss in a valid election free of em- proceedings entailing of further additional de- ployer coercion, Peoples System, Gas Inc. v. lay. Circuit, The Ninth confronted with a simi- brought 629 F.2d at have been issue, jugular: lar went to the the attention of the Board or the court. I am [Delay] is an unfortunate but inevitable re- aware of no such event in this case. Further- process hearing, sult of the of decision and more, previous in neither of these two cases prescribed deny review in the Act. And to guilty had the tial, been found of substan- enforcement, with or without remand for re- “outrageous pervasive,” much less un- occurring consideration on the basis of facts practices. (“[n]o fair labor See 474 F.2d at 442 decision, put premi- after the Board’s is to overt anti-union animus ... was demonstrated upon litigation by employ- um er; continued the employees.”); to of its 629 F.2d at 39 hope resulting delay it can that the will (court emphasized “borderline nature of the produce facts, a new set of as to which the duty bargain). violation” of to See also NLRB readjudicate. Suppose Board must then that Corp., (10th v. Wilhow 666 F.2d so, again against the Board does finds Cir.1981); Drug, NLRB v. Western 600 F.2d at employer. petition the There can then be a (turnover only need be considered in close court, it, petition to this a decision and a cases, egregious cases). not As the Fifth Cir- Supreme By for certiorari to the Court. that practices cuit stated about similar to the Em- surely time there will almost be another new ployer’s here: process stop? set of facts. When is the to may shop Practices live on in the lore of the (9th NLRB v. L.B. Foster 418 F.2d repress employee and continue to sentiment denied, Cir.1969), cert. 90 S.Ct. long most, all, original partici- after or even 25 L.Ed.2d 398 pants departed. have The Board is not com- occasion, especially significant On subse- pelled past practices to that atten- infer have quent may critically events undermine the uated, directly especially practices striking at ability Board’s to draw educated inferences security employees, the heart of the of the about future events from circumstances at the plant, such as threats to close the blacklist- violations, time of the even ex- in the case of ing, and the like. tremely possibility, serious violations. This Bandag, (5th Inc. v. 583 F.2d however, compel require does not us to the Cir.1978). inquire possible Board in this case to into sub- against Additional considerations militate im- sequent events.

posing requirement a blanket study support the ma- wholeheartedly with the main cited of I agree Id. at 1193. the actually in this no statement confirms jority’s have cause majority that “we the that serious unfair expert premise Board’s the NLRB’s guess to second case have significant of Co- practices employers and effects of the appraisal quality the union.4 support to- on the for have effect level unlawful activities.”2 We nair’s agrees judg- majority case the Finally, the Board’s upheld day unanimously of coer- campaign conduct that the that the coercive with the Board Employer’s ment perva- mark the work- such an indelible on intense and exceptionally has left cion was that I the Board’s extraordina- is in of that assessment light force that even It sive. restore the and access remedies would review factual ry briefly notice the basis an un- right began make its employees their conclusion. Union Board’s April union representation. coerced decision about in March and organizing campaign forty-six per- of about support 11 had The Board also found that was reasona- 1205. at employees. cent of the Union would have ble to conclude that Em- days only Yet after onset the Em- enjoyed support but for majority April group on ployer’s campaign Board’s ployer’s egregious conduct. The twenty-five thirty employees approached issue, on this which I crit- finding consider Union, stating Employer’s ical,3 on kind of precisely rests same their losing threats had made them fear body expertise precedent, the same their several the return of jobs; requested degree and is thus entitled to same Id. The Union secured cards. 1191. other conclusions concern- deference April cards after fourteen authorization probable impact ing the seriousness Id. at 1205 n. 15. day began. the strike practices. unfair labor Yet particular im- Employer’s conduct such an over Board’s If the had majority swiftly passes al- impact who had probable conclusion as effect mediate support abil- for the Un- ready expressed coercive on the Union’s initial their ion, gain support, asserting certainly it was reasonable for ity majority “[ajbsent a cannot that it had an majority, may card Board conclude have relatively how any degree reliability equally inhibiting impact forecast with in a responded employees— would have small number of undecided Maj. Op. election.” at 1378-1379. would free about fifteen —that have sent into rejection expert fifty percent This cavalier union over the mark and recognition judgment posture majority purposes. is inconsistent with the status for little but respect question assumed with There is the Union properly deference gain but closely the Board’s related conclusions would continued adherents Furthermore, unanimously Employer’s here. relentless anti-union upheld Weiler, Maj. Op. Keep: continues: 4. The cites Promises to Securing Rights Self-Organization Workers’ First, respects this in several is similar case NLRA, Under the Harv.L.Rev. in the one other case which the Board Dickens, (1983) (discussing Repre- W. Union nonmajority bargaining order concluded a (Oct. Campaign and Vote sentation Elections: necessary employer’s ‘outra- because an dissertation, 1980) (unpublished Depart- Ph.D. geous’ ‘pervasive’ practices and unfair labor Economics, of ment of Massachusetts Institute election, precluded a rerun and it is dis- fair Technology)) unions for the conclusion that tinguishable in from cases which the Board just would have won under half of all elections did not reach that conclusion. cleanly. employers campaigned entirely if had omitted). (citations at 1374-1375 Id. Maj. Op. study The con- at n. 79. same cluded, however, pro-union that the number of re- See infra 1370. The Board disclaims employer votes was reduced where 15% necessary prereq- liance on this as a conclusion unfair labor or ac- included threats bargaining Corp., 261 uisite to a order. Conair supporters. Weiler, against supra, tions union is a 1194. Because conclusion particular, study at 1781-86. In results aspect significant factual for the of the context indicate that is most ef- intimidation however, statutory authority, I Board’s claim of enjoy when union does fective over- validity discuss its here. whelming support. Id. at process, The Board’s conclusion in this the election the Board could issue campaign. a rea- if supported by adequate bargaining remedy is thus order as a even respect con- union lost election. precedent subsequently established Board soning, of unfair labor cerning impact various went summarize in Court on to some evidence in the practices, and substantial appro- detail the factors that determine the record. a in priateness order three categories of cases: Authority II. The Board’s a Issue Despite our reversal of Fourth Circuit Bargaining Non-Majority Order below in Nos. major 573 and 691 on all statutory issues, The Board rested its claim of the actual area of disagreement authority large in part on the Supreme position between our here and that of the opinion Packing Court’s in NLRB v. Gissel Fourth large practical Circuit is not as a U.S. L.Ed.2d matter. While refusing to validate the (1969), subsequent judicial general and on inter- use of a bargaining order in re- pretations I, too, cards, of that decision. find liance on the Fourth Circuit never- support for the Board’s authority open theless left possibility impos- cases, language order, of these reasoning a without need of that, as recognizing always Supreme inquiry into majority status on the basis Supreme otherwise, Court dictum even with Court “exceptional” cards or in holdings, giveth as what the Court it can cases marked by “outrageous” and “per- event, away. taketh In because easily vasive” unfair labor practices. Such an of nonmajority bargaining issue orders order would be an appropriate remedy for smoldering has been on the Board practices, noted, those the court if they decades, this court for I a searching believe are of “such nature that their coercive inquiry legislative into the histo- language, effects cannot be eliminated appli- Act, ry, policies underlying remedies, cation of traditional with the the practical well as effects on labor rela- result fair and reliable election of upholding tions cannot overturning itself, be had.” The Board we Board, add, is pronouncing called before should had a long similar policy judgment on either side of the issue. I find of issuing bargaining order, ab- sources, singly none these or cumula- 8(a)(5) sence violation or even a any contrary indicators to what the tively, bargaining demand, when that was the available, Supreme appeared Court to be saying only effective remedy sub- contrary, Gissel. On the I conclude from unfair practices. stantial my inquiry of a issuance non-ma- effect of our holding here is order under jority bargaining exceptional approve use bar- these may circumstances like well be the gaining extraordinary less cases only way policies “effectuate the pervasive marked less practices which Act.” nonetheless still the tendency to un- dermine majority strength impede A. The Gissel Decision and I Category processes. the election The Board’s au- Cases thority to issue such an order on lesser showing misconduct appro- Gissel, major- the Court decided that a priate, reemphasize, we should where cards, ity unambigu- authorization a showing point is also that at there one face, ous on their “convincing constituted union a majority; case, the had in such a of majority evidence If em- support.” course, effectuating of ascertainable em- refused ployer bargain to with a union that ployee free choice becomes as important a cards, had valid and majority obtained a of deterring as goal employer misbehavior. at the same independent time committed practices tending unfair labor to undermine at 89 395 U.S. S.Ct. at 1939-40 the majority impede added). union’s and strength (citations omitted) (emphasis The 1392 omitted). (footnote majority As the the Id. of approval thus reinforced its

Court is bargaining cryptic, order the court’s statement “Category non-majority suggests, I” interpretation by conceivably open indicat- is to an the Fourth Circuit and by described of is to of a showing majority support that a that its reference the “absence ing extraordinary “less cases” to necessary only 8(a)(5) in violation” alludes the em The Court also Category into II. lack faith in re falling possible of bad ployer’s of even less seri- category Maj. Op. a third to See at n. 85. fusing bargain. described order bargaining in which no to a open reading ous offenses language But also Id. at without an election. appropriate necessary did not to that Court feel 615, at 1941. of un 89 S.Ct. into the status inquire majority Be disposing in of case. ion Sinclair I description Category of Court’s employer’s nature of the cause extreme violations outrageous pervasive cases of impos made a fair election coercive conduct a order is warranted bargaining where into Cat placed sible and therefore Sinclair majority “without of into sta- inquiry need I, to the Board did not have meet egory majority tus” is characterized as showing II of that Category requirements dictum, palliative rejected mere a majority the union had obtained a card dejected Fourth I presumably Circuit.5 unlikely a fair election was too that as majority am not certain majority disregard showing support. this In one “dictum” can be so dismissed. easily adopted court the latter previously This four cases decided Court Supreme interpretation, declaring Gissel, the appears applied Court “approved the bargaining Court Gissel for analysis appropriate it described as without a against order entered Sinclair Category I eases: showing because prior union 585, Sinclair, No. the Board made ‘exceptional’ the facts or ‘outra indicated finding, left the First Cir- undisturbed practices.” Amalga geous’ unfair cuit, employer’s repris- that the threats of NLRB, v. 527 F.2d Clothing mated Workers that, ab- al were so coercive even in the 803, (D.C.Cir.1975), cert. denied sub 808 violation, a 8(a)(5) bargain- sence of a § NLRB, Jimmy Richard Co. v. 426 U.S. nom. necessary order would have been 2229, 907, (1976). 96 48 L.Ed.2d 832 S.Ct. effect those repair the unlawful Virtually I of has every threats. The therefore not other court know did as- interpreted similarly, have to called the Gissel decision make determination suming catego- above the existence of an extreme the intermediate situation may cases ry bargaining that a fair rerun election in which order risks majority.6 were too in the absence of a card might possible great not be issue however, the case materi- disregard employees Only recently, the desires of did through Dairy Coopera- the cards. alize.7 In Farmers already expressed United 1379-80; Op. 1979, Maj. uniformly at see de- also Team 7. Prior the Board had orders, NLRB, 392, even in cases clined issue 640 396 sters Local 115 v. F.2d violations, “outrageous” “pervasive” House); (D.C.Cir.1981) (Haddon Employer’s showing status. the absence of Dairy Coop. Brief 36. Cf. United Farmers Inc., Missouri, Fuqua E.g., Homes 1054, NLRB, (3d v. Ass’n 633 F.2d 1065-66 Elec., Inc., (1973); 196 Automatic 130 GTE 1980). Cir. Corp., (1972); Loray NLRB 902 184 NLRB cases, It is clear these Co., See, e.g., Montgomery NLRB v. Ward however, to be the Board believed itself 996, (10th 1977); 554 F.2d Cir. remedy. authority ever without Indus., Inc., (3d Armcor 535 F.2d Cir. pre- above had the In none the three cases 1976); J.P. Stevens Gullstan Div. v. employee support cise extent of den., (5th Cir.), 441 F.2d cert. all; litigated nor had the General Coun- been (1971); NLRB v. 30 L.Ed.2d Furthermore, sought order. sel Logan Packing Co., (4th 386 F.2d S.S. found, explicitly Loray Corp., in The Cir.1967). Roney Apart But cf. NLRB v. Plaza implicitly NLRB at the other ments, (5th Cir.1979). n. 8 597 F.2d cases, non-bargaining that other remedies two (3d tive Association v. 633 F.2d 1054 order a party “to take such affirmative Cir.1980), the Circuit faced the issue Third action ... as will the policies effectuate for the first time in union appeal a once it has found a violation. [the Act]” refusal a Board divided to issue a bar- Employer The asserts and the majority now gaining order in a Category Gissel I situa- decides that the Board’s seemingly wide a tion.8 After careful analysis the Gissel authority under 10(c) section is in fact se- rationale, decision its the court held curely bound by a fundamental principle of that “the Board remedial authority majority incorporated rule 9(a) section to issue a order in the absence which acts as an absolute limitation on the of a victory card and election if majority Board’s to authority issue a non-majority the employer has committed such ‘outra- bargaining order, whatever the circum- geous’ ‘pervasive’ unfair labor stances. that there is no reasonable possibility that 9(a) Section states part: relevant free and uncoerced election could be held.” “Representatives designated or selected for Id. the purposes of collective bargaining Nonetheless, despite pro the Gissel of the appro- unit contemporary nouncement consensus priate for such purposes shall be the exclu- interpretations of circuit court of it to the representatives sive of all the employees in may effect that Board issue non-ma such purposes unit for the bar- of collective jority bargaining order counter extraor gaining 159(a). ...” 29 U.S.C. The Em- § flagrant dinarily employer violations, our ployer panel majority read the ex- court decides that today Board has no clusive majority representation rule of sec- statutory ever issue authority such an 9(a) tion provides into section which that order. also Local Teamsters 115 v. “[e]mployees right shall have the to self-or- (Haddon House), (D.C. 640 F.2d 392 ganization, ... bargain collectively Cir.1981) (earlier misgivings about such aut through representatives of their own hority).9 With the choos- queasi understandable ing, ness ... experience brings from too and shall also have the relying right heavily on predictions of what the refrain from all Supreme any or such activities.” Court will do future based on what it U.S.C. 157. They say together has said in the I past, turn now to an two sections mean the employees’ right examination of the language and legislative bargain representatives through chosen history of the Act see whether majority rule by any is violated Board interpretation of Gissel will hold. requires bargain order that with a union that cannot demonstrate that Language B. Act enjoyed it has at time of a support points regardless of the employees, broad remedial 10(c), mandate of section empowering egregiousness employer’s conduct. adequate House, employers’ upheld would be to redress In Haddon this court cases, violations. As I these non-majority bargain- read the Board’s Board’s refusal to issue a determination that a order was not discussing order without the Board’s statu- appropriate was not so much based on view tory authority so. to do Faced with the same statutory authority limits of its as on its lineup Board member as the Third Circuit expert particular assessment remedial Dairy, supra United see note court was requirements presented by given set of facts. persuaded that the Board’s decision rested legal on the conclusion of member one 8. 633 F.2d Two 1064-65. members of authority. Board lacked We found that that, although may Board believed just likely Board decision turned on the circumstances, authority have such under some judgment of two the exercise of members that appropriate this was not the case for exer- authority case, inappropriate in that Dairy authority. cise of that United Farmers question and we therefore Ass’n, did not reach the Coop. (3d 1028 n. 11 statutory authority. Cir.1979) (United Dairy I). 640 F.2d at 397 n. 7. ar- Two members gued authority that the Board did have the should exercise it in this case. Id. at 1031-38. freedom of 7’s of guarantee with section points to section addition, Employer the In prac- choice, authority the remedial an unfair labor limits Board's 8(a)(2), makes it which or inter- employer ignores for “to dominate and for all time the tice an in all cases any labor ... of paradox fere with the formation case. The this quintessential 158(a)(2), and organization,” § U.S.C. engaged found have has been to Employer prohibit to an interpreted which been unfair campaign egregious in an intense recognizing a voluntarily- from employer and deliberate complete in practices labor a of its only minority represents union that right employ- the disregard of section Ladies’ Garment employees. International bargaining repre- to choose their freely ees NLRB, v. Workers’ Union U.S. Employer the the sentatives. Now —and 6 L.Ed.2d S.Ct. champions as the majority emerge panel — they would very right of choice: of that 9(a) 8(a)(2) define conduct Sections against bar right that as an absolute on invoke the constituting unfair labor remedy to the Em- authority have no the They appear to Board’s part employers. issuing bargaining the scope ployer’s violation application direct employers fact, my colleagues’ own authority Board’s remedial when order. But in prac- labor guilty found of unfair they employees been leave the simply admission knew how Congress assuredly limbo, tices. most for Board has de- in an eternal the authority. For exam- to limit the Board’s in that a the termined following directly after 9(b), ple, section to restoring is the means of short run 9(a) dealing section determination freely statutory right the their units, limits the clearly of bargaining represented not to to choose whether or be It the Board power. provides “that long run a union. Thus both the the any appro- is shall not decide that unit assert panel/Employer Board and such if unit in- priate purposes for such statutory the basis for same sections as professional employees cludes em- both on the diametrically opposite positions their are ployees professional who not non-majority bargaining permissibility professional unless such em- reject to particularly am reluctant order. I unit.” 29 ployees vote for inclusion such of its remedial au- the Board’s construction to 159(b). seems me U.S.C. It obvious § of a conflict thority purported basis 9(a) that neither section nor other sec- is very statutory language with the dealing tion of Act with unfair labor implement. to The bottom line claiming can be automati- practices by employer having employees, here how the been as an limitation cally explicit read subjected pressures employer relentless the Board to take remedial authority of union, can restored choose be best prac- action those as to same unfair they in which equilibrium to some kind tices.10 against or the Union. freely can choose field, Board, expert says in the The that section The majority’s argument if a bar- 9(a)’s happen only short-term majority principle, conjunction can history legislative Supreme Con- has on limited evidence Court occasion authority preclude gress explicitly of the Board’s remedial be- exercise cause of conflict with a basic intended policy embedded intruding terms of from into substantive in the Act. In Porter H.K. Co. bargaining agreements. See 397 U.S. collective (1970), U.S. 25 L.Ed.2d 146 view, my 90 S.Ct. 824-25. authority Court held the Board lacked 9(a) “plain language” 7 and offers of sections accept particular order an (and support Employer’s far less citing 8(d) bargaining proposal, section panel’s) is barred from view that Board obligation bargain collectively] Act: “[The not order, non-majority bargaining issuing a ever compel party agree does to a either has made a fair elec- even when making proposal require or of a concession explicitly preclu- impossible, than did tion 158(d). ....” 29 U.S.C. reached Court Porter, language 8(d), sive of section cited authority conclusion that the lacked exactly defining obligation bargain what language 8(d)’s case not section did did not mean. alone, however, overwhelming but rather from effect; context of an put panel employer’s order is into gaining against statutory such an order is says obligations or the employees’ representation employees and that the therefore policy choices; it was never discussed as a limita- Certainly be left in the status quo. should Indeed, tion on the Board’s powers. the the the not language of statute alone does major sponsor, Wagner, Act’s Senator ex- of compel paralysis this sort. plicitly approved possibility of a remedi- al order in the absence of History C. Legislative when majority approved current he the re- nothing legislative history There sult Texas & New Orleans Railroad v.Co. of Wagner Act or amend- subsequent Railway Steamship Brotherhood of & to to Congress ments indicate that meant Clerks, U.S. L.Ed. S.Ct. power withhold this remedial from the (1930). Hearings See H.R. 6288 majority’s prove only Board. The citations Comm, Labor, Before the House 74th that Congress provided a mechanism for Cong., (1935) (statement 1st Sess. 21-22 of in the usual to or employees pick situation case, In that Wagner). Sen. decided under reject by their union rule re- majority Railway Act, Supreme Labor Court to quired employers by abide that decision. upheld the order of the district court “dises- word, single however, There is not a to a company tablishing” union which could that, suggest if fair election could be not show current majority support, and rein- interference, held employer because stating the union that enjoyed majority had powers absolutely Board’s remedial were support illegal before the company’s by majority restricted rule. campaign against eoercive it. company course, Congress passing Wag- Of was ordered to recognize the union that ner principle majority Act embraced currently only minority had support until rule in the selection bargaining repre- employees rejected in a fair and un- S.Rep. sentatives by employees. No. coerced election. 281 U.S. Cong., (1935); 74th 1st 13-14 H.R.Rep. Sess. case, 434. In addressing Cong., No. 74th 1st 18-19 Sess. Wagner implicitly Senator acknowledged It by employers did so to obviate refusals to application that strict principle recognize a organization repre- majority give rule must way sometimes to majority sented the employees, their remedy to illegal prac- need employer to attempts by instead divide tices in permit employees genuine order to with with individuals or a com- freedom of choice. pany represented only union that a minori- however, In general, non-majority bar- ty. Congress thus associated minority bar- gaining orders as remedial measures were gaining with collusive and unions; H.R.Rep. discussed. See No. at 21 complacent company it was also competition (examples worried about destructive remedial measures within among bargain- unions caused by employer power). Board’s I infer from this silence at ing separately factions individuals. Congress most either that never conceived H.R.Rep. No. 972 at 19. These dangers extraordinary giving circumstances arise organized majority where an is denied rise to need a non-majority bargain- recognition; they have to do with a nothing ing order or that did Congress not wish like situation this where the Board orders constrain the Board’s choice of remedial em- bargain with the I certainly measures this manner. see no ployee organization reasonably could infer, does, way majority as the that the sup- be expected gained majority away Act meant take from the Board port but for the outrageous pervasive specific remedy without identify- ever unfair labor employer. legislative history it. The of the Wag-

Throughout accordingly gives the Act’s ner Act no cause to over- passage, princi- ple of rule always discussed rule the Board in its choice of remedies. of ma- exception principle authorized history subsequent Nor does I If had disagree. Congress Taft- rule. jority Act. The Wagner amendments to the 8(f), employers section passed were ad- not in 1947 Hartley amendments industry, employers, like other by the construction excesses part perceived dressed in 8(a)(2) from instance, the would be barred section they For limited Board. with a repre- voluntarily concluding agreements power certify bargaining cannot demonstrate other than secret ballot union that sentatives means special election, 159(c);11 provid- support. Congress recognized they 29 U.S.C. § industry per- construction could needs of the which process by ed for a Thus, voluntary agreements. such mitted bargaining representative they a decertify general to a rule 8(f) exception is an section longer supported, no U.S.C. order here does 159(e)(1); that the Board’s remedial 159(c)(l)(A)(ii); they prohib- § § words, major- agree- not contravene. In other shop” ited certain kinds of “closed 8(f) of section significance union view of the employment ity’s which limited ments Employer’s of the members, merely recapitulation The a 158(a)(3). Su- U.S.C. § on vol- Gissel, however, argument prohibition that the Act’s demon- preme Court a re- minority bargaining precludes these any untary the irrelevance of strated I do non-majority bargaining order. independent power to the medial changes order, prohibition any has noting not believe bargaining to issue a remedial power of the Board bearing upon certified the critical distinction “[a] has bargaining order where special union has the benefit of numerous extremely prevented coercive conduct by are not accorded unions privileges which majority. gaining the union from a voluntarily bargain- or under a recognized Packing order.” NLRB v. Gissel infra at 1367. 598-99, 395 U.S. S.Ct. sum, legislative language In neither nor (1969).12 Congress did not deal L.Ed.2d 547 anything contains to show Con- history either in 1947 or in later amendments with from prohibit intended to gress by the kind of remedial order issued order if issuing non-majority bargaining a here, which neither certifies a union pur- truly necessary it is to “effectuate membership. nor union compels centrality of the Act.” The poses rein- principle rule in the Act majority argues Congress’ majority The addi- 8(f), pre- authorizing paradox tion in 1959 of section forces the that results from pre- the Board is agreements majority’s ruling today: hire with unions in the con- majority rule industry principle struction even in the absence of a cluded non-majority bargaining a or- prior showing majority support, issuing reinforc- (and the there is no other der when the Board has found es the conclusion that (1954), during 9(c) Wagner permit- which no rival 11. Section Act had L.Ed. 125 election, certify representative may petition “a ted the Board to for an 29 U.S.C. employees, recogni- 159(c)(3); 159(e)(2), picket secret ballot of or ... other or §§ representa- to ascertain such tion, 158(b)(4)(C). suitable method the one- After U.S.C. § Act, tives.” National Labor Relations ch. year the union has the bene- “certification bar” Taft-Hartley 9(c), (1935). 49 Stat. 453 § continuing presumption but rebuttable fit of elabo- amendments in 1947 substituted a more NLRB, majority v. 348 U.S. status. Brooks guidelines effectively limiting rate set of certifi- addition, at 181-82. majority gained had in a cation to unions that the automatic so-called “contract bar” calls for Manage- Labor valid secret ballot election. any representation petition dismissal of Act, I, ment Relations ch. Title § term, years, during up three rival union (codified Stat. 143 at 29 U.S.C. bargaining agreement be- of a valid collective 159(c)). represent- tween an certified See, employees. e.g., ative of the Leonard one-year following example, period 12. For Meats, Inc., 136 NLRB 1000 Wholesale certification, presump- there is an irrebuttable bargaining rights A union that has obtained majority during tion of status which the em- under a remedial order does not union, ployer bargain must with the Brooks necessarily acquire these benefits. 176, 181, 96, 103, 75 S.Ct. panel majority conceded) that such throughout the administration of the Act in is the only way restoring effective contexts no longer dispute. Thus, an to employees right their to make an un- employer would presumably violate the coerced decision majority rep- about union prohibition Act’s minority bargaining if resentation. I statutory find such creativi- he voluntarily recognized and bargained ty disturbing, say the least. that, with a union although it once had a majority, card had since lost a Board elec- D. The Policy Majority Act: Rule tion. Yet Gissel clearly authorizes and Employee Freedom of Choice Board to order under such cir- The majority’s argument—like the Em- cumstances if the employer has committed ployer’s—appears to boil down to one of substantial independent unfair labor prac- statutory ambience: Even if there is no tices. The prohibition on minority bargain- explicit prohibition of a non-majority bar- ing thus has no application permissi- gaining order in the language legislative bility of a bargaining order. Act, history of the the entire statutory principle rule, while in- scheme of collective bargaining rests on the deed central to the scheme of employer-em- premise corollary, rule and its ployee rights and obligations, has never the prohibition against minority bargaining been mechanically applied to bind the set out in International Ladies’ Garment Board in the remedial area. The Gissel NLRB, Workers’ 731, 738, Union v. 366 U.S. situation is only one of several recognized 1603, 81 1607, S.Ct. 6 L.Ed.2d 762 (1961). Supreme Court in which Board, Assuming true, however, that this is there pursuant to and consistent policies with the is a principle familiar that the need to rem- Act, of the may require an employer to edy a violation justifies often and even re- bargain with a union that cannot demon- quires measures that might be unauthorized status,15 strate current majority or to cease if undertaken on the actor’s own volition. bargaining with a union that does appear For example, state-imposed racial quotas, in have the support of a majority.16 the absence of an Further- arguable constitutional more, violation, Board is may clearly run afoul of the authorized to fourteenth amendment invalidate for cause under Bakke.13 But the results of courts elections clearly power have the in which a majority order race-con- employees expressed scious proven remedies for preference constitutional their either against18 for17 or violations.14 This principle operates also union.

13. University Bakke, Regents year of California v. with a union within one of its certification 265, 2733, term, during 438 U.S. 98 up years, S.Ct. 57 L.Ed.2d 750 or to three of a valid (1978). bargaining agreement collective whether or not majori- the union can still demonstrate current 14. ty NLRB, support. 96, Brooks v. See 348 U.S. 75 Swann v. Charlotte-Mecklenburg Bd. of 176, Educ., (1954). 99 1, S.Ct. L.Ed. 125 402 U.S. 1267, 91 S.Ct. 28 L.Ed.2d 554 (1971). Cf. Kiutznick, Fulliiove v. 448, 448 U.S. 16. The Board 2758, 100 2780, may S.Ct. employer order an to cease L.Ed.2d (1980) (10% minority recognizing unlawfully set-aside an is dominated union Congress’ within power to though may enforce majority amendment, support. 14th even have in view of past discrimination). Pennsylvania Lines, Inc., Greyhound NLRB v. 261, 571, (1937). 303 U.S. 58 S.Ct. 82 L.Ed. 831 15. The Board may employer order an to bar- See, e.g., Mfg. NLRB v. Savair 414 U.S. gain majority with a union that had a card (1973) (Board 94 S.Ct. 38 L.Ed.2d 495 obtaining before the succeeded in evi- should set aside election where union waived majority support employer- dence of for an employees signed initiation fees for union, who cards dominated International Ass’n of Ma- election). NLRB, before Courts have shown no reluc- chinists v. 311 U.S. S.Ct. victory tance to direct that a union be set aside (1940); L.Ed. 50 and with a union that had a misrepresentations. gen- in cases of union See majority petition card but withdrew its election California, erally Inc., General Knit of employer’s prac- because of the unfair labor (1978) Penello, (Member dis- tices. Franks Bros. Co. senting) (citing 47 cases in which courts denied 64 S.Ct. 88 L.Ed. 1020 Further- more, employer may bargain 18. page an not refuse to note 18 the Act as elector- destroy is lations of truth, principle majority rule ex- employees may in which atmosphere al statutory tied in the scenario inextricably choice. these circum- free Under practice prohibitions press the unfair the Em- stances, vigorous assertion coercion, domination against employer statutory 8(a)(1), ployer contained in sections discrimination or not to employees to select Act. limitations (3) rights These strikes bargaining representative during organizational conduct select incredibly disingenuous would more than we me as either are severe campaigns are political process, they but naive. tolerate in precisely in the labor context

acceptable a remedial what emphasize I would here for eco- potential because of inherent not do and does does bargaining order employ- nomic coercion to how such reasoning the Board’s as Gissel, Supreme As the Court stated er. their help order can restore to basically at stake is the establish- what is about make an decision right to uncoerced rela- nonpermanent, limited ment of a bargain representation and collective union his eco- tionship employer, between not tanta First, a order is ing. and his dependent employee nomically certification, which, as we mount to agent, legisla- election of noted, statutory affords union certain legislation tors or enactment of continuing and a privileges presumption ultimately whereby relationship Supreme status.19 As the Court where voter independent defined and all, is, nothing “[tjhere after recognized, objectively freer to more may be listen if, order, and in a permanent talk. class freer to employers acts have employer’s the effects of the after 1941-42. U.S. off, desire to employees clearly worn statutory is based on the The entire scheme union, by filing can do so they disavow the no- congressional clear endorsement of petition.” NLRB v. Gissel representation a illegal in the em- only tion that absence of Co., Packing U.S. at employees can a ployer majority coercion of im The does not bargaining order against make the kind of free choice for or Furthermore, membership.20 union pose of representation union that is at the heart ability contractual impose the union’s to incorporated rule majority principle the the majority a of against terms will of the Act. virtually employees is nonexistent: against majority employees this need not strike heavy irony

Thus it is pos- And pre- they generally should touted to their will. will principle rule now be terms of the from with the most sess some influence over the dealing vent the Board only if the contract will employers bargain, because intimidating adopted by tactics analysis, in the on their depend, We often last discourage representation. union fight it. Employer willingness case in has to obtain Still have here a which by important, every and this there is reason guilty been found more will negotiate vio- a contract that outrageous pervasive of such the union court security negotiated. clause An em- elections ion is enforcement Board orders based on misrepresentations). ployer minor union will law to resist with who violate the unlikely prospect for a is an unionization See, e.g., Exchange Parts security clause, difficult and it will be union U.S. 84 S.Ct. 11 L.Ed.2d making pressure him into this concession (upholding Board of union elector- invalidation majority op- employees are when the employer granted where unlawful eco- al loss posed. during campaign). nomic benefits Bok, Regulation Campaign Tactics in supra Representation National Elections under the 19. See note 12. Act, 38, 135 Relations Harv.L.Rev. Labor noted, 20. As one commentator has necessarily compel “bargaining will not employees join pay dues. union or only consequences These if a un- will follow choice ployee union will freedom of rule satisfy majority, must win the surely sup- hand, realize that it on the one and the Board’s determi- in the face of a port employees, punish Employer simply nation to order to survive hostile employer, deter future on the other. violations As threat of a decertification election after a decision, explained in its the Employ- year passed.21 already effectively er has undermined time, At bargaining opportunity the same order ascertain whether an un- impose during which the period does trial coerced would choose to repre- be employees exposure can gain merits union, by sented this Conair Corp., union representation only way 1194, although NLRB at “a reasonable basis remains when the possible concluding exists for that the Union would all destroyed opportunity has irremediably Re- enjoyed majority support but for by open for a free election discus- preceded spondent’s practices.” unfair labor As Id. the employer sion and debate. When has so previously, noted the union held authoriza- rights law and the flagrantly flouted the forty-six tion cards percent keep out the un- order Employer’s before vicious ion, thereby impressing upon employees his take campaign began to its toll. I Id. complete unchallengeable control over would be less confident about the propriety conditions, working bargaining or- their of a bargaining order in a case in which provide only der al- may opportunity, reasonably likely was not the union one, for them beit to see at temporary gained would have majority support in a work an employee organization which case, free this atmosphere. however, In obligated their to negotiate failure of the less than five per- specific proposals about to better their fifty percent cent to make it over the mark working This interim arrange- conditions. at any point campaign in its demonstrates may ment also serve dissuade them of to me imprudence drawing lingering impossible fear that it is to elect a bright “clear line” where an agency’s statu- suffering union without dire consequences. tory to choose remedial authority measures grossly atmospheres, tainted for extreme violations is at issue. dynamics of collective ongoing display power functioning To invoke principle majority rule employee organization dispel can the over- as an absolute to a bar whelming impotence sense of created cases of extreme coercion like this intro- in employer’s prior breaking up success the unjustified an premise duces into the Act employees’ attempts self-organization.22 reject that the to employees’ right collective case, bargaining important I as the is more than their do not view this does, it,23 right as conflict between presenting premise Congress a em- to choose a others, case, Id In deter id. at that unlike one, showing this been no there had of thus, presents by employees 22. This a far case different situa interest the Florida the union they tion than Local we faced in Int’l and no claim that had been as Ladies’ coerced so impossible. Garment Workers’ Union 374 F.2d to make a fair election Further- denied, more, (D.C.Cir.1967), the cert. U.S. the Board did even assert that (1967), remedy employ- S.Ct. L.Ed.2d which would restore New York employer 8(a)(1), (3), rights by the employ- sections had violated ees the section 7 violated the short, operations wholly ignored and when it moved its to er. Board had the Florida the rights employees, shop part group from a unionized New York. As of one of to not even remedy, employer rights group employ- of its the Board ordered the restore the of another of bargain ees, simply punish employer to with union at the Florida but the and the loca obviously radically tion. We denied because the deter others. case is enforcement rem This edy employees’ violated the Florida freedom different. bargaining representative. select a Id. at 300. justified remedy solely The Board had its on 23. The Chamber of Commerce in its amicus premise deprive company openly urges upon the basis of the brief need “to us. It illegal acts,” id., major argues “(A) imposes unionization ‘fruits’ of its and to that goal “effectuating un- deem the of as- To leave Court clearly did not endorse. free choice ... as im- employee certainable negative touched, perhaps permanently, deterring misbe- goal employer a as portant cam- an successful employer’s fallout of havior,” “a show- consequently require activity wipe organizational out paign major- one the union had a point that at indefinitely employees are means at 1940. ity.” 395 U.S. even rejected the union presumed have exer- they prevented when have been bargaining of a order The deterrent value permit engaged their choice. To a Board an who has cising against employer free illegal The apparent. behavior is surrogate right egregious their temporary order as order bargaining of a remedial prospect a the oth- representative, to select strong create a incentive for should hand, far less appears er drastic alterna- keep campaign its employer anti-union tive, congres- keeping and more in with compa- even legal within limits. For if policy encouraging of free choice sional battle, may ny organizational wins I bargaining.24 collective believe war. On the lose collective statutory policy protecting fundamental of hand, no bar- today’s other decision that employees’ by freedom choose the un- order can ever issue unless gaining is whether to a union represented by rule be of more than gained support ion has by is not undermined but rather advanced in the point half the unit at some employees order non-majority bargaining temporary creates reverse and indeed process perverse it is to conclude that where reasonable can incentives. The anti-union gained majority support union would have rushing ever a union dealing avoid with per- the employer’s outrageous but for sentiment, sign in at the first of union where no practices, vasive unfair labor begun experience before re- other remedial measures available will numbers, the collective of with strength move the taint of those so as plant closings, discharges threats of mass permit a fair election the foreseeable surveillance, thereby creating close an future. I do not simply understand atmosphere coercion outlasts logic majority’s walk-away construc- tenure of current and outdistanc- tion when confronted violations In- powers es the remedial Board. impact. these dimensions and deed, conjure up hypo- we need not such a horror for the here story, Employer thetical of the Act: Deterrence Policy E. The Act precisely has done that. is dealt ruling debilitating majority’s blow grave, In the face coercive conduct effec- deprived and the unrelenting Employ- deliberate and as the means to and deter a massive remedy tive here, Supreme er’s conduct Court illegal campaign coercive and conduct may properly give also said crushing inchoate un- bent weight increased to the deterrent effect organization. ion proposed remedy. Court Gissel importance deterring stressed I the Board’s authori- uphold Thus would I; by Category extreme misconduct covered to issue even ty on a only showing employer showing “lesser mis- positive of a absence by conduct” covered II did the for the union in the circumstances Category support personal liberty differently. Ameri- docu- burdens that most Faced with massive (B) accept, by refuse cans the Act contem- mented coercion Conair only plates imposed will those burdens be impossible, agrees made a free election active, demonstrated, majori- response remedy applied Board it found effec- ty employee will of the unit.” of amicus Brief tive, though possi- even there was a theoretical curiae Chamber of Commerce at 8. case) bility (almost hypothetical purely in this representation might be that undesired union majority complains sub- 24. The that Í “would temporarily imposed employees. So op- imposed stitute for an the coercion Conair viewed, my the Board’s and choice seems not posing imposed by govern- coercive force necessary only justifiable Act. but under Maj. Op. ment.” at 1383. I view the choice

1401 case, in Teamsters (1) reading requirement this in which lic Local 115 with this modification: we directed the practices perva- in unfair labor so engaged reader, as the specify Board to in lieu of the that there is no reason- outrageous sive “a president, simply responsible officer of election, able of a fair and that possibility Company].” Id. at 403-04. even the ordinary [the and extraordina- will not ry non-bargaining remedies restore Teamsters Local 115 is distinguishable employees right reject their choose or from this case. We observed there that union representation free from all unfair labor found “[o]f coercion; (2) it is reasonable to con- Board,” the president had personally clude that gained the union would have Here, performed “only one.” Id. at 403. support of the majority but for the employ- the president’s personal involvement was er’s extremely illegal coercive conduct. On far conspicuous. more His voice behind basis, I respectfully dissent. Board’s order might most authoritatively indicate to Conair will com- GINSBURG, Judge, dissenting Circuit as Nonetheless, ply the directive. a read- to the requirement Company’s ing order “directed at a specified individu- president read the Board’s notice aloud to al” is a “startling innovation.” Id. Such employees: assembled an order no surprise would occasion in a system in which those against who offend I modify extraordinary would notice regulation repent state must confess and respect. remedies in one The Board’s order self-correction, a means of or to educate requires that president, Conair’s Leandro others. But it is foreign system to our Rizzuto, personally read Board’s cease force speak prescribed named individuals to and desist notice to an assembly employ- words attain enlight- rehabilitation or to ees; I would allow Rizzuto to choose be- Board, en an assembled audience. The I reading tween the notice himself or desig- believe, has not thoughtfully considered this nating a responsible officer to read it on his point. behalf. forced, sins,” A public “confession of even specifies The Board’s order that the Com- owner-president who has acted outra- pany’s geously, is a humiliation this court once Rizzuto, owner and president, ... shall “incompatible termed with the democratic ... read the notice to current employees principles of the of man.” Interna- dignity assembled for that purpose.... Electrical, tional Union of Radio & Machine Corp., Conair 1285 Workers, punitive, It has a F.2d (ALJ Opinion). quality, vindictive see Teamsters Local In Teamsters Local 115 v. personal 640 F.2d at and is the kind of denied, (D.C.Cir.), F.2d 392 cert. performance equity command decrees 837, 102 (1981), 70 L.Ed.2d 118 (Second) avoided. Restatement of Con- Board that “the similarly required [Compa (1979); Lumley Gye, tracts v. El. & ny] president, Anderson, personally Harold (Q.B.1853); Bl. cf. Eng.Rep. read a copy of the notice to an assembly of DeG., Lumley Wagner, M. & G. the employees.” 640 F.2d at 401. Our Eng.Rep. (Ch.1852) (acknowledging lack opinion in that case the history summarized authority grant specific performance public reading (they origi orders singing obligations, of defendant’s concert nated when the illiteracy injunction preventing court issued defend- a large concern), id. at and noted breaching sing ant from covenant not to the grave reservations this court had earlier elsewhere). Moreover, as Board Chairman expressed regarding such orders in Interna noted, Conair, Van de Water 261 NLRB at Electrical, tional Union of Radio & Machine 28, a reading 1195 n. of the notice (Scott’s, Workers Inc.), v. NLRB 383 F.2d may be than a read- president less effective denied, (D.C.Cir.1967), 232-34 cert. ing by responsible another officer. for- 818, 19 (1968). mer, U.S. L.Ed.2d 871 humiliated and degraded by per- order, 640 F.2d at pub specific performance may See 402. We enforced the sonal dem- expres- inflections and facial “by onstrate

sions, with the terms of disagreement his latter, assigned Id. The

the notice.” personal involve- lacking

task but same n distaste, ment, with less perform it may detachment, greater and thus with

more single pres- I would not out

credibility. individual, here, named any

ident other lines, sing. and make him

hand him

GINSBURG, Judge, separate Circuit con-

curring statement: many pages postscript

I note as a review have written that as court of

we with the “matters of high

we must wrestle Weiler, in this case.

principle” aired Keep: Securing

Promises Workers’

Rights Self-Organization Under

NLRA, 96 Harv.L.Rev. however, point tellingly, has been made the law is to have chance “[i]f vindicating employees’ group right through

‘bargain collectively representa tives of their choosing,’ own [relief]

promises must come quickly.” Id. at 1793. as 1983 runs out about a unioniza

We write campaign spring

tion that occurred in the delays 1977. The long

and summer of

every stage proceedings and similar remedies,

may indeed render the Board’s stiff, “beside the Id. at point.”

however (footnote omitted).

NATIONAL TREASURY EMPLOYEES UNION, Petitioner,

FEDERAL LABOR RELATIONS

AUTHORITY, Respondent. 83-1054.

No.

United of Appeals, States Court of Columbia Circuit.

District

Argued Oct.

Decided Nov.

Case Details

Case Name: Conair Corporation v. National Labor Relations Board, Local 222, International Ladies' Garment Workers' Union, Afl-Cio, Intervenor

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 15, 1983

Citation: 721 F.2d 1355

Docket Number: 82-1623

Court Abbreviation: D.C. Cir.