Fieldcrest Cannon, Inc. v. National Labor Relations Board

CANNON, FIELDCREST

INCORPORATED,

Petitioner,

v.

NATIONAL LABOR RELATIONS

BOARD, Respondent, Needletrades,

Union of Industrial and Employees, AFL-CIO,

Textile

CLC, Intervenor.

NATIONAL LABOR RELATIONS

BOARD, Petitioner, CANNON,

FIELDCREST

INCORPORATED,

Respondent. 95-2658,

Nos. 95-2829. Appeals,

United States Court of

Fourth Circuit.

Argued May 1996. Sept.

Decided Roberts, III, Preyer Charles ARGUED: Greaves, Baldwin, & Johnson

Haynsworth, NC, Har- Greensboro, Fielderest. John for Board, Relations Fawley, National Labor lan DC, David Malcolm Washington, for NLRB. Needletrades, Industrial Prouty, Of Union AFL-CIO, CLC, Employees, Textile And Intervenor. ON City, for York New Feinstein, L. General Frederick BRIEF: Sher, Counsel, Associate Linda General Counsel, Armstrong, Deputy Asso- A. Aileen Perlstein, Counsel, E. Howard General ciate Counsel, National General Deputy Assistant DC, Board, Washington, for Relations Labor Patterson, Harkavy, Jonathan R. NLRB. Greensboro, N, Lawrence, Harkavy & Intervenor. WILKINSON, Judge, Chief

Before MICHAEL, Judges. Circuit LUTTIG granted part Enforcement denied Counties, cated Cabarrus and Rowan part published opinion. Judge Chief North Carolina. On June judgment WILKINSON announced the Amalgamated Clothing and Textiles Workers majority opinion court and wrote the sought organize Union IV, parts through Judge I in which these facilities. joined. Judge joined MICHAEL LUTTIG campaign contested, election hotly was in judgment denying the enforcement of the and Fielderest took aggressive approach salary aspect differential the Board’s convincing employees against vote the Judge order. Chief WILKINSON wrote a union. Fieldcrest’s campaign literature was concurring opinion. Judge LUTTIG wrote graphic. One flier showed a mushroom cloud opinion dissenting part. in Judge and words: “There’s more way than one opinion MICHAEL concurring wrote an destroy community. a VOTE NO.” An- part dissenting part. and other showed a closed mill with the words: plant “The by was unionized ACTWU. The OPINION plant was closed for economic reasons in WILKINSON, Judge: Chief Yet 1985.” another showed workers stand- ing The National gate Labor Relations Board outside a sign found near that said Cannon, Fielderest caption that Inc. had “closed.” Its committed read: “In past decade, more than 100 violations scores of plants National La- textile have closed during bor Relations Act organiza- a union North Carolina. Thousands of workers have campaign jobs tion at its facilities in lost their ... Cabarrus and Vote NO union.” Counties, Rowan North Carolina. Fielderest Over the campaign course of the and in its (1) responses offers three findings: to these aftermath, supporters union suffered numer- credibility that the ALJ’s determinations hostility. ous incidents of There were unlaw- (2) union; were biased favor of the that interrogations, ful supervisors as when findings Board’s on the various violations Reganna Earwood and Ruth brought Blalock supported by evidence; were not substantial Reginald Turner into ques- an office and (3) portion and remedy, the Board’s support tioned his They for the sug- union. required which Fielderest to offer union em- gested change that he by his signing mind ployees the pay given same raise to non- card, which support would his withdraw employees, union pow- the Board’s exceeded hesitated, the union. When Turner he was agree er. We with the Board that substan- already told that he points against had “two supports great tial evidence of him” sign and that failure to the card would reject violations found here and we com- put “right him out the door.” pany’s claims that agency proceedings There were also reprisal threats of if em- impermissibly were agree We biased. with ployees union, voted for the supervi- such as Fielderest, however, discharges James sor Allman’s statement Fielderest Pharr, White, Ronald Cathy Earl and would prevailed, move to Mexico if the union Thompson did not run afoul of the Act. We supervisor Windy Black’s assertion that the agree with also Fielderest the Board activity union’s postpone would a scheduled authority without salary alter raise, supervisor and Godfrey’s Ted agreed by Fielderest and the warning that strictly Fielderest would en- during union bargaining. collective For prevailed. force its rules if the union reasons, these we enforce the Board’s order appeared threats also Spanish on fliers. One deny and part part. enforcement language you sign flier warned: “If the [un- card] ion and the Government finds out about I. it, you deported will prison.” or sent to Fielderest manufactures linens at both un- ion and plants throughout non-union Employees supported who the union were southeastern United States. Field- supervisors harassed. While Fielderest purchased Mills, major Fox, crest Tammy Cannon com- Gurley, Neely Eddie and Diane 11,000 petitor non-union during lo- pro-company distributed literature union and the Fieldcrest September time, dis- On employees who working employees’ bargaining to discuss into collective entered their literature had literature tributed facilities. unionized at the and benefits they wages could admonished were seized wage in- initially proposed a 4% sought to Supervisors also jobs. their lose increase. sought a 6% monitoring the union their while crease union activists intimidate stood offer though September Fieldcrest’s By activities personal work 5.5%. union’s campaign and the counteroffer before 4.25% not been monitored had been monitored. all issues were not so benefit workers On November non-union to claim campaign resolved, start- the union continued example, after the union but For Harkey to at least Perry tracked were ed, entitled supervisor that its non- “every hour Tony Bumgarner received wage increase activist the same Terry After met hour, parties hand.” in his When the employees. watch union op-ed piece 1992, in- pro-union 12, January wrote a Fieldcrest wife again on Smothers’ 4.5%, move- ac- newspaper, Smothers’ the union the local and for its creased offer floor so his to one restricted ments were cepted. Before his could be monitored. activities complaint brought union thereafter The freely published, Smothers was column

wife’s that Fieldcrest It claimed the Act. under floors. throughout two assisted technicians during the byAct its conduct violated the campaign the union Conspicuously, when refusing by campaign, and also organization to his ended, allowed to return was Smothers wage in- the same grant union workers usual duties. employees. by non-union received crease punished for their also Employees were single in a consolidated claims were Both Sherry day An- after The union activities. Law an Administrative proceeding before union, support for the her thony announced 31, and began on March Judge. Trial taking breaks coffee prohibited was she 25,1993. January The testimo- concluded on sup- union Another her section. outside of days of over 36 extended ny of 256 witnesses Clarke, responsibili- her lost porter, Oreida hearings. language translator because Spanish ties as 1994, 1, his issued ALJ On March concerned about what company were officials of the uniformly in favor found opinion. He speaking employees. Spanish might tell she credibility and held of on issues union Sylvia was supporter Crawford And union than 100 engaged in more Fieldcrest had employ- guide for new as a tour removed Board affirmed practices. The unfair labor campaign union ended. ees—until a new It ordered the ALJ’s conclusions. jobs. Elboyd employees lost Ten their election, injured employees be required veteran, disciplined and Deal, 30-year whole, directed the and made and reinstated of the speaking on behalf discharged for out from unfair cease and desist company to for, supervisor of in the words union and Fi- ordered practices. The Board also labor “ringleader” O’Kelly, acting as the James grant its union eldcrest point, At one campaign. organization given non-union em- pay raise 5.5% same your bluntly: see what O’Kelly “You said bargaining table return to ployees doing you, Mr. Deal.” badge is for the terms conditions over was held election representation The appeals. now ment. Fieldcrest tally final August 20 and company, 3443 votes showed II. union, 307 unresolved chal- votes for the objections to the lodges various Fieldcrest election, losing Upon lenged ballots. case, which we fact-finding process in this unlawfully alleged that consider in turn. shall employees and com- against 20 discriminated violations of the approximately 109 mitted A. Act. argu- presents first Fieldcrest statistical implemented a September On ALJ’s ments, prove that the it claims plants. which non-union wage increase at its

5.5% fiQ determining credibility respective position method for of wit- to the ALJ. The testi- was biased. Fieldcrest notes that the mony occupied days nesses hearings. There general ALJ credited all of the counsel’s were presented by 83 witnesses the NLRB own; this, claims, and none of its counsel, witnesses general Fieldcrest, by and 19 demonstrates bias. Our review shall not be the union. of these 256 wit- driven, however, by an overall statistical bal- nesses filled more than transcript ance of whose witnesses received credit and pages. did not. To do would amount whose so The ALJ’s decision reflects careful consid- judging a case some mechanical formula eration of this testimony. voluminous In the rather than the Af- merits evidence. lengthy, 93-page, ALJ’s single-spaced opin- all, ter such statistics do not inform us ion, pains spell violation, he took out each credibility “a whether determination is un- supporting violation, the evidence and his reasonable, fact, findings other contradicts ruling reasons for as he did. His examina- inadequate or is ‘based on an reason or no episode tion of ” one illustrates the care he McCullough reason at all.’ NLRB v. Envi- Smith, employee, took. Drenia alleged Services, Inc., ronmental supervisor, Burris, Terry her threatened (citation Cir.1993) omitted). her. The ALJ first reviewed Drenia Smith’s argues Fieldcrest also that the ALJ’s testimony that Burris said that the union prior record in other eases indicates bias lost, would “friendships mean would be that favor of labor unions. Fieldcrest cites statis people houses, would fire bomb and that showing tical evidence that this ALJ has violence,” there would be strikes and that against employers ruled on 105 of 108 section picket-line beaten, crossers would be 8(a)(3) allegations and on 550 of 589 total plant that “the would close down.” The ALJ allegations. by noting The Board counters testimony: then summarized Burris’ cases, prior that of the ALJ’s courts have agreed Burris that he conversation only 16, reviewed and of these courts early with Drenia Smith campaign. fully have enforced will 13. We not rate a agreed He that he told Smith that trouble however,

judge, by percentage of times unions, seemed to follow that it was given he or she rules on a side of a case. To possible that he told her he had seen re- impartiality way evaluate an ALJ’s in this ports firebombing and violence. judging amounts to his record mere result Finally, analyzed the ALJ the two witnesses’ reputation. reality, In such statistics tell testimony. He discussed whether Smith’s nothing. us little or Fieldcrest’s numbers do testimony leading had been elicited with not tell us whether the ALJ decided individu questions, and determined that it had not. correctly, figures al cases and the Board’s do discussing After how cases, Burris’ cor- why, losing party not tell us in 63 many allegations, roborated of Smith’s appeal. chose not to ultimately testimony. ALJ credited Smith’s Instead, We shall set aside the statistics. factfinding we shall examine this case The ALJ’s review of other testimo to assess whether the record as a whole ny similarly Reviewing meticulous. supports the ALJ’s determinations. A deci- findings, courts owe deference to such factual ruling sion-maker’s deserves rise or fall on assessing only to them determine whether hand, the case at not on the results in other supported are substantial evidence. bearing upon eases that have little the issues Corp. See Universal Camera before us. 474, 488-91, 456, 464-66, U.S. 71 S.Ct. (1951). L.Ed. findings When factual rest

B. determinations, upon credibility they should We thus turn to accepted by reviewing the instant case. The court absent credibility “exceptional determinations that Fieldcrest circumstances.” NLRB v. Air challenges Chemicals, Inc., product lengthy here were the Products F.2d & (4th Cir.1983). thorough proceedings during Exceptional which each circum party ample had an opportunity present credibility stances include cases where “a any them from unreasonable, potentially insulate could contradicts is

determination sanction. fact, ‘based on an findings or is other all.’” no reason at reason or

inadequate that with Fieldcrest agree thus While we omitted). (citation at 928 McCullough, 5 F.3d giving more than a “little” the ALJ erred reviewing court Only a situation is in such employee, as an weight to a status witness’ independently the record and to review “free inquiry. As Ayres not end the that does McCullough, 5 own conclusions.” [its] reach Standard, an error demonstrated Otherwise, fact-finding, careful F.3d at 928. of enforcement denial does not necessitate case, enti in this is such as undertaken the adminis- adequately supports record “the respect. tled to credibility judge’s determination.” law trative Standard, compa- In at 1138. mentioning the ny’s never denied witness C. warning. court found his sufficiently denial of a direct contends that the absence Fieldcrest next credibility determina- supported who the ALJ’s improperly witnesses tes ALJ credited tion, on the wit- despite the ALJ’s reliance basis of their against Fieldcrest on the tified employment Fieldcrest notes that ness’ status. employment status. occasions, 38 wit the ALJ credited on 55 dealing questions of In other cases particular, Field- in this nesses manner. credibility, also enforced Board’s we have objects statement ALJ’s crest over the notwithstanding concerns orders testimony was entitled employees’ gave more than the ALJ possibility credibility weight” in determi “considerable as status weight to the witness’ “little” unlikely a current “it nations because credibility. determining See employee in falsely against his em employee testify will Products, 588; Air Ayres, 551 F.2d at NLRB, this Ayres ployer.” In L.S. & Co. court Ayres, 141. In this enforced F.2d at conclusion, rejected holding court evi- order because “substantial the Board’s employee witness is an that “the fact that a findings some of the supports at least dence adversely to his that he testifies at the time 8(a)(1).” F.2d at 587. of of violation bearing only a factor on employer is at most explained that “full consideration We there to little credibility and one entitled his credibility of should be to the other indicia Cir.1977) (4th 586, 588

weight” Products, In Air given.” Id. at we added). (emphasis In Standard-Coosa- similarly, holding that the ALJ suffi- found NLRB, we Carpet Div. v. Thatcher Yarn credibility of ciently upon indicia relied other an that fact that em reiterated “the mere including of direct denials “the absence exposes to retaliation tes ployee himself witnesses, demeanor of the Employer’s little bear tifying against employer his has witnesses, surrounding the [] the situation credibility.” F.2d ing on corroborating campaign,” and other election Cir.1982), denied, cert. 460 U.S. testimony. 717 at 145-46. F.2d (1983) (emphasis 76 L.Ed.2d 345 S.Ct. credibility de- All of the other indicia of added). present here. in Air were scribed Products employment of Quite apart from status holding is not Ayres The reason likely testifying, there was sufficient evidence just those It is as that difficult to discern. great of for the ALJ to credit the testifying against his employee First, the ALJ re- union’s testifying in as a witnesses. also his own self-interest the absence of direct denials peatedly noted supporter. pointed the court out in As For in- part company of witnesses. “may strongly employee moti- Ayres, stance, super- Whitley testified employer unfair labor Graciela to establish an vated “sign not to told her Employees visor James Allman at 588 n. 3. practice.” 551 F.2d and said that papers for the of their in- union” be so because could motivated wins, compa- “we will have to move they might the union. Or volvement with that Whit- ny The ALJ noted to Mexico.” subject discipline from the com- have been clear. Most ley’s testimony particularly was finding of an NLRA violation pany, and the though, importantly Allman did not refute the ALJ mentioned the inconsistent or con- Whitley’s testimony charges. was thus tradictory company testimony nature of appropriately credited. least 20 times. occasions, company some the relevant On extent, To a lesser the ALJ also relied on failed to take the stand. Oreida

witness even witnesses, the demeanor of another factor alleged company posted Clarke bearing credibility on determinations. Air Spanish threatening notice workers with Products, 717 F.2d at 145. The ALJ stated they signed deportation if union cards. page on opinion, the first of his “On the basis Though allegation partially this was credited my ... of observation of the demeanor of the status, employment because of her the ALJ witnesses, I following findings make the company’s also noted that the witnesses who presumably, every fact.” While oné of the posting denied such a notice did not “include credibility hinged ALJ’s determinations supervisors may all who have done so.” Ac- witnesses, specifically the demeanor of the he cordingly, the ALJ concluded the com- cited demeanor on two occasions. re-With pany’s directly “evidence does not rebut gard Turner, Reginald who testified that testimony Clarke’s that she saw the notice.” supervisor his him if threatened to fire he testimony company witnesses also union, supported the the ALJ cited Turner’s comparative vagueness. suffered Com- “demeanor” and found his “more parative vagueness was central to the credi- company’s truthful” than the witness. Dis- bility involving determination current em- cussing witness, another who denied that Fi- ployee Lyles, regarding Brenda who testified eldcrest’s offer discounted merchandise to plant by supervisor threats of closure made designed to influence the Howard Hall. the ALJ did mention While election, forthcoming union the ALJ ex- status, Lyles’ employment compared he also plained that the witness’ “demeanor respective Supervisor the witnesses’ recall. trustworthy was not witness.” “hardly Hall could remember the conversa- specifically Even where demeanor was not tion,” Lyles testimony. but offered detailed mentioned, appears supported to have result, ultimately As a the ALJ concluded credibility Though ALJ’s determinations. Lyles should be credited because she testimony (regarding Windy Sandra Greene’s “had much recall of this better conversation.” Black’s threats that would not Inconsistency yet problem was another union) receive a raise because of the was company’s example, For witnesses. su- employ- credited because she awas current pervisor Perry Harkey spending denied addi- ee, the ALJ also noted that “Greene was monitoring employ- tional time on the floor more truthful witness than Black.” And ees, yet simultaneously he admitted that Davis, supervisor Sharon who testified that management him had ordered “to be avail- Don Hancock had monitored union employees’ questions.” able for The ALJ ees, regarded was as a more “credible wit- Harkey that noted because would have had ness” than Hancock. As the Seventh Circuit spend on more time the floor to be avail- “Credibility explained, ... is a function not employees’ questions, Harkey’s able for deni- only says of what a witness but of how a spending al that he was more time says witness it.” NLRB v. Overnite Trans production credibility. floor undermined his Co., portation Cir. Consequently, the ALJ credited current em- 1991). some of the While ALJ’s assessments ployee Tony testimony Bumgarner’s certainly general, of demeanor are the bal Harkey employees. had monitored union testimony ancing of is at heart witnesses’ denial, comparative vague Absence of factfinding process, normally of and is ness, inconsistency and internal are factors reviewing not the role of courts to second- may legitimately bear on an ALJ’s deci guess a fact-finder’s determinations about sion to credit a or a union witness. appeared who more “truthful” or “credible.” opinion, Over the course of his the ALJ Moreover, testimony noted that the tinion the ALJ was not remiss ob- witnesses’ Likewise, representation campaign serving stood unrebutted on 34 occasions. that the as judge’s credibili- law ports the by atmosphere of administrative was marked a whole ty Id. determination^].” hostility the union. toward and intimidation showing signs a locked posted Fieldcrest D. do by the words: “What gate accompanied Bedspread Mill Cannon’s Fieldcrest sum, attack on ALJ’s Fieldcrest’s in common? Sheeting in Eden have Mill the forest credibility misses determinations by ACTWU. plants were unionized Both upon the fails attack ALJ for the Its trees. due to economic plants were closed Both from cen- ultimately to divert attention of the loss fliers detailed overwhelming conditions.” Other litigation: this point tral of plants, con- unionized jobs major- at Fieldcrest’s against Fieldcrest. vast evidence and, facilities, pictures of abandoned tained here ity plus violations were earlier, explosion depicted a nuclear only by as noted substantial evidence. supported way than one “There’s more than the greater with the words even whole of this case An community. NO.” destroy parts. VOTE respective Fieldcrest’s sum of its reprisal against and recrimination atmosphere reprisals of adherents threats may provide a con- supporters against union included: of witnesses evaluating testimony

text for of dis- interrogations; a threat unlawful credibility of enhanced the and no doubt was not charge union withdrawal card if a accusing company of benefits; who were those threats of signed; threats of lost termination; action; violations. disciplinary threats of employees if se- plant of closure threats corrobo- Finally, there was also substantial union; of posting threat lected the testimony support the ALJ’s credi- rating employees Spanish-speaking deportation to current em- bility determinations. When cards; they signed union threats other if managers ployee Peggy Jordan testified harassment; an order to wear reprisal; threatened and Harold Buck Reese Roseman t-shirt; of more threats pro-employer if union was current benefits the loss of of the rules stringent enforcement in, testimony was corroborat- her also voted selected; assignment addi- union was The ALJ noted ed other witnesses. work; monitoring and surveil- tional closer decidedly similar to was Jordan’s employees; restriction lance of other su- made to “statements movement; prohibiting union members’ weight of pervisors.” Given the cumulative engaging conversation nearly alleging identical witnesses different treatment; union; disparate about the incidents, credibility enhanced. Jordan’s discharges ap- warnings and various corroborating evi- on similar The ALJ relied part employees’ from the peared stemto over the course no less than 49 times dence union activities. opinion. of his Cannon, Amalgam Inc. and See Union, Clothing and Textile Workers ated no more examples constitute The above (August No. 1995 WL 318 N.L.R.B. to sampling, but are sufficient than a 1995). approached his how the ALJ demonstrate employee relying in task. He erred convey full is difficult to While it him, but there merely witnesses before against status weight ease Fieldcrest of the supporting great discussing deal of other evidence by listing and few violations We are not that he reached. Field- examples, conclusions the Board concluded that naught findings that are “numer- prepared practices to set at were erest’s unfair labor Standard, ous,” “outrageous,” “egregious,” solidly grounded “pervasive,” the evidence. pro- opinion member who at 1138. The ALJ’s The Board and “notorious.” why aspects the union minor of the case discussion of dissented on a detailed vides majority number testimony persuasive agreed that “the was more with witnesses’ unfair Respondent’s by pervasiveness Fielderest’s and offered than the beyond result, practices warrant remedies proper to con- labor As a it is witnesses. (Board ordinary case.” Member “adequately sup- those of the record here that the clude concurring part). “really Stephens, smelling” According So too did the of alcohol. to “ Pharr, engaged “Ron, conclude that Fieldcrest ‘has ALJ Smith said: I smell alcohol on egregious widespread and misconduct your breath I’m going give you and to general disregard as to demonstrate breathalyzer.” After Pharr wandered ” statutory employees’ rights.’ (quoting Hick plant around the for some time and failed to Foods, mott N.L.R.B. 1979 WL report testing (presumably to the room to (1979)). record reveals that this is content), diminish his blood alcohol Pharr strong company’s not a case from the stand allowed himself to premis- be escorted off the point. assuredly it is While lawful for a es submitting without ever ato blood alcohol oppose to the unionization of its hearing, test. At the Pharr admitted that he workforce, 158(c), § see 29 U.S.C. immediately had consumed beer before work. earth, simply adopted a scorched take-no- Pharr also prior testified about two incidents prisoners stop approach to unionization with (1) of alcohol abuse at Fieldcrest: he came to regard statutory out limitations. The cu “smelling work strong” kind of of alcohol and amply sup mulative evidence this case (2) Smith; was warned he drank so much ports the ALJ’s determinations —the kind of (a “gets you Cisco high fortified wine which ground-floor determinations a fact-finder pretty quick”) that he had to be sent home obliged to which we would be to defer even sick “dizzy” because he was too to work. condemning under less circumstances. Pharr’s criminal injuring record also includes property assaults, real and two one of a III. government official. Given Pharr’s own tes- not, course, picture The broad does re- timony, nothing his termination had to do obligation lieve this court from the to review with campaign everything the union challenge findings Fieldcrest’s to individual do with his own misconduct. 8(a) § of discrimination in violation of 158(a) (“It Act. 29 shall U.S.C. (1) practice

unfair labor for an B. with, restrain, interfere or coerce discharged Earl White was for dis (2) rights in the ... [their] exercise of ruptive working proba behavior while as a ... dominate or interfere with the formation tionary employee. White’s behavior was re (3) any organization labor ... [discrimi- ported ranged from several sources and regard to the hire or tenure of nate] murderous threats to sexual harassment. employment any or term or condition of em- Ivey Mosely Co-worker testified White ployment discourage membership any employee. threatened to “shoot” another (4) organization ... discharge labor supervisor, Jimmy Allen, And White’s re against employee otherwise discriminate (5) complaints regarding ceived at least three charges because he has filed ... to refuse (1) argued bargain collectively”). White’s violent nature: that White While the findings supported by of those are substan- with Harold Caldwell and threatened to kill evidence, Pharr, (2) him; tial three are not. Ronald that White threatened Kevin Glaseo White, Cathy Thompson Earl (3) were all harm; bodily that White intend discharged for misconduct unrelated to the ed to harm Abraham Mincer. Fieldcrest was campaign. Accordingly, these legitimately also concerned about White’s be ees were not entitled to relief under the Act. Patsy havior around women. Co-worker “grab” Jamerson testified that would White

A. “say women and “touch them” and sexual— Roslyn sometimes remarks to them.” sexual discharged Ronald Pharr was for re Hemphill testified that she endured such fusing breathalyzer to take a test. One of complained harassment and on two occa had coworkers, Robinson, Pharr’s Rosie com weight sions to cumulative of this Allen. The plained supervisor Percy to Smith that Pharr testimony suggests that harassing approached her. White’s termination Smith then Pharr, Smith, according activity. and to Pharr was was not related to his union Board agree with the employees. We its

C. extraordinary that, circumstances under the discharged for Cathy Thompson was case, to an steps not amount these did of this without towels running her towel machine power. See remedial of the Board’s abuse it, increasing production and thereby her Monfort, Inc. witness Thompson admitted on the pay. Cir.1992). suggest these do not We production on that she had cheated stand every case. steps appropriate would before, company records reflected and her Just warnings for this behavior. prior two termination, her Thompson’s three of V.

before Jallah, (Walter Waller, and Sam co-workers order with enforce the Board’s We Walker) super Thompson to Kelly reported relating Ronald aspects to exception of those Earwood, alleging that Reganna each visor Pharr, White, Cathy Thompson and and Earl Ac cheating production. Thompson was pay raise dif- addressing the portions those Walker, managed more Thompson cording to union and non- Fieldcrest’s ferential between every night. As a result runs than 500 false matters, we As to those employees. union eventually Earwood complaints, of these deny enforcement. cheating machine. caught Thompson PART IN GRANTED ENFORCEMENT evidence, think that we do not this Given DENIED IN PART. AND anything to do Thompson’s termination campaign. with the union WILKINSON, Judge, concurring: Chief employees discharge of these three

As the of section amount to a violation did not my simply express to reasons I write 8(a)(3) Act, to enforce that we decline aspect voting deny enforcement of to required Board’s order that portion of the altering salary increase the Board’s order Pharr, White, Thompson to be reinstated and in the by and the union agreed to Fieldcrest made whole. bargaining. A word brief course of collective background is order at the outset. IV. raised non-union em- After Fieldcrest had question of reme We next turn to 5.5%, into ployees’ salaries entered provided an dy. Board’s order extensive negotiations bargaining collective to the reinstate list of remedies addition appropriate rate at which over the union compensation of those ment employees’ pay should be increased. discriminatorily discharged or who had been initially sought figure of 4% that Field- disciplined. The Board ordered union, negotiations pro- and the 6%. As the (1) off-premises; hold a new election crest: figure its gressed, Fieldcrest increased (2) unfair labor cease and desist from the request to 4.25% and the union decreased (3) company unlawful practices; rescind 5.5%, they eventually agreed to 4.5%. before (4) rules; supply the union with names end, therefore, non-union In the (5) employees; addresses of its non-union salary and the increase ees received 5.5% access to its bulle allow the union reasonable employees, a 4.5% increase. (6) boards; grant the union access tin Board, addressing 1% in its order dining employees’ nonwork nonwork areas increases, (7) time; com difference between the two respond union to allow the its un required that Fieldcrest make whole regarding repre pany speeches the issue by extending (8) sentation; right ion-represented the union the afford salary granted employees on them the 5.5% speech a 30-minute deliver (9) Field- election; employees. It also ordered post non-union working prior time to the bargaining with the union findings; to resume plants of the Board’s crest notices at its employ conditions of over the “terms and (10)publish notices in various (11) As both of these remedies constitute newspapers; mail ment.” newsletters and local (12) to influence require improper attempts the Board employees; and the notices to bargaining, collective notice to the outcome of company representative to read the negotiate, power to it power Board’s as outlined the ees is without to com- the exceed pel company agree any a or a to by Supreme precedent. See to Act and Court NLRB, 99, 103, provision substantive contractual of a collec- H.K. Porter Co. v. U.S. 102, 823, (1970); tive-bargaining agreement.” 821, Id. at 25 L.Ed.2d 146 90 S.Ct. short, Co., In S.Ct. at 823. “the results of the NLRB v. American National Insurance 829-30, contest” should 395, 404, 824, bargaining be left to “the 72 S.Ct. 343 U.S. strengths 108, (1952). parties.” of the Id. at 90 S.Ct. Accordingly, portion L.Ed. 1027 at 826. bargaining relating to of the Board’s order salary differential between union and

the This circuit has H.K. followed Porter when employees cannot be enforced. non-union facing pre- circumstances similar to those Finishing sented In here. Clearwater Co. v.

A. 464, Cir.1982), the company agree refused to to the union’s bar- 8(d) of the Act states that the Section gaining pay demand for a retroactive in- bargain compel obligation to “does not either already granted had crease which been proposal require party agree to a or the employees. non-union The Board found that 158(d). maWng of a concession.” 29 U.S.C. company good required the lacked faith and section, Supreme Pursuant to this the Court grant pay it to the retroactive increase to consistently has held that the Board shall not employees. disagreed, This court ex- be allowed to influence the results of collec- plaining that “the Board’s order that the “object bargaining. tive This is because the Company grant proposed wage the increase governmental of the Act was not to allow retroactively beyond scope the of its au- regulation of the terms and conditions of thority in as set out H.K. Porter.” Id. at employment, but rather to ensure that em- to- ployers and their could work gether mutually satisfactory con- to establish similarly The Board this ease exceeded Porter, Clearwater, H.K. at Here, ditions.” 397 U.S. authority. as in the Accordingly, raise, the Board cannot S.Ct. at 823. pay Board altered the terms of a “directly indirectly, compel or concessions bargaining substantive element of collective judgment upon the substan- otherwise sit agreement. Fieldcrest and the union had bargaining agree- months, tive of collective negotiated period terms over a of four National, American 343 U.S. at proposed ments.” each had at least three different fact, 72 S.Ct. at 829. figures pay for the increase. Board’s order here is even more intrusive The Board’s order that Fieldcrest extend rejected than the ones Clearwater salary given increase to non-union em- case, parties H.K. Porter. In this actual ployees improper. to its union ly agreed pay raise of 4.5%. The rejected Supreme precisely such Court Board thus did more than side one Porter, in H.K was “the first order which position ongoing negotiations; party’s 35-year history Act that time change already raise dictated employer or a [ ] the Board ordered either This, parties. agreed upon both the Act agree to a term of a union to substantive Porter, clearly not H.K. does allow. U.S. collective-bargaining agreement.” 397 U.S. at 90 S.Ct. at 822-23. case, 90 S.Ct. at 825. In that employer’s portion failure to That of the Board’s order that Board found agree require and the union to to a union demand for union dues would faith, renegotiate agreed-upon salary good checkoff was not and it ordered request. rejected. As grant the union’s of 4.5% must likewise be Court, however, explained in Na Supreme Supreme held that the Court American tional, authority “Congress provided expressly that the Board lacked the remedial under desirability require accept pass upon the Act to Board should agree any particular the Board does of the substantive terms of labor term: “while 408-09, 72 S.Ct. at 832. power have under the National Labor Rela- ments.” 343 U.S. certainly if the require employers This would be the result tions Act 76 parties: parties if the had no renegotiate faith of the parties to

Board could order the reaching agreement, an no parties intention of already agreed to the a term Moreover, bargaining. agreement would have been reached. during collective dictating the terms tantamount to an order is Act, course, does 2. agreement. The of

of the Id.; H.K. a result. see also not allow such of union maintains that the existence Porter, 102, at 397 at 90 S.Ct. 822-23. U.S. good faith agreement prove cannot itself an may agreement in parties reach an because B. sug- union good absence of faith. The term gests that it conceded to Fieldcrest’s Board, however, contends that its im- merely litigate it could Fieldcrest’s so that bargaining collective terms was position of course, position that it bargaining of so —and of a 4.5% justified because Fieldcrest’s offer wage give workers an immediate could good salary to the union lacked increase Essentially, the union increase 4.5%. 8(d) requires of the Act that faith. Section good that Fieldcrest lacked faith be- claims good respect faith with parties “confer cause it had intention of continu- no future hours, and conditions wages, and other terms rejected ing bargain had the 158(d), nego- employment,” 29 U.S.C. way knowing term. But we have no 4.5% reaching agree- view of tiate “with the done had the what Fieldcrest would have possible.” Highland NLRB v. Park ment gone on union either refused offer (4th Co., 632, Cir.1940); Mfg. 110 F.2d 637 Act strike. cannot be based Violations Katz, 736, 747, NLRB v. 369 U.S. 82 see also speculation. true that further While is (1962) 1107, 1113-14, 8 L.Ed.2d 230 S.Ct. (or delay reaching (the possess parties shall not “a cast of mind strike) might initiation of a have undermined reaching agreement”). Field- against While Fieldcrest, support party for union at of an actu- crest maintains the existence may not use the courts to circumvent the agreement proof is itself that it entered al all, bargaining process. After collective good negotiations into with the faith intention tough give-and-take part is of collective bar- reaching agreement, the Board and the ultimately gaining, and it was the union’s why offer various reasons for this is accept the offer on the table or choice to argu- not so. I shall address each of those negotiate. continue to in turn. ments 3. that Fieldcrest’s The union also contends rec The Board contends Fielderest’s em- failure to offer the 5.5% raise to union practices ord of unfair labor demonstrates (or ployees during negotiations perhaps, bargain Fieldcrest did not intend to figure starting point even to use this as the good union. the Board faith with the While negotiations) for the demonstrates an ab- correct that courts have looked outside of is good sence of faith. The Board itself has negotiations activity “a indicative of noted, however, “regarding grant of against reaching agreement,” cast of mind workers, unrepresented new benefits to Katz, 1114; 369 U.S. 82 S.Ct. see may Act most that can be said is that the NLRB, Minneapolis v. 987 Radisson Plaza duty bargain impose Cir.1993), F.2d these cases providing respect the new benefits attempts to ascertain involved whether Co., represented employees.” B.F. Goodrich bargaining constituted a ‘“charade or sham ” 914, 915, (1972); N.L.R.B. WL reaching agreement.’ to avoid [intended] Porter, also H.K. 397 U.S. at see Radisson, (quoting 987 F.2d at 1381 Conti Inc., 822-23; Raleigh, S.Ct. at Winn-Dixie nental Insurance Co. (1983). 231, 236, 1983 N.L.R.B. WL (2nd Cir.1974) added)). (emphasis Such however, pointless argument inquiries, are when the The flaw the union’s here hypotheti- already agreement. apparent reached when one considers the parties have Here, ease, attempts proves good opposite cal where Fieldcrest agreement itself reaching agreement. pay increase motivation for For impose the union the same employees. instance, Had Field- granted to non-union pursuing Fieldcrest’s motive for crest, employ- example, given non-union for the 4.5% term included the desire to under- increase, certainly pay Fielderest ees a 3.5% union, presumably the mine the Board would unilaterally imposed that in- not have could good Again, find an faith. absence while union; union would have the crease might evidence of such motives be useful to “ bargain the opportunity to for wanted the prove the existence of a ‘charade or sham ” fact, precisely In this was what 4.5% raise. reaching agreement,’ [intended] to avoid accomplish here. The the union tried Radisson, (quoting 987 F.2d at 1381 Conti- sought given to initially not the 5.5% union Co., (empha- nental Insurance 495 F.2d at 48 rather, employees, higher non-union but added)), parties agreement sis reached increase, salary 6%. here. employ- that its the union assumes While Moreover, assumption the Board’s always as well off as non- ees will be least certain motivations somehow invalidate col- bargaining employees, collective entails bargaining agreements questiona- lective ais worse off. Presum- the risk that will be ably, employees repre- potential vote for union ble one. Consider Fieldcrest’s mo- when sentation, they making prediction are salary discouraging for tives differential: not, they than will better off. more often plants; taking unionization at its other ad- certainly, guarantee is no that this But there vantage unusually of the union’s weak bar- every Supreme true in case. As the will be gaining position; recompensating its coffers explained H.K Porter: Court previous pay for to union increases presently Act as drawn does not con- ees; saving anticipation funds of future template always will be able to unions increases; pay giving employees agreement even when secure and achieve pay employees lower increase than non-union weak, position or that their economic is costly because union members receive other from a strikes or lockouts will never result (benefits benefits non-union bargaining impasse. It cannot collective receive). may merely All of these are employer or be said that the Act forbids an aspects overarching motive that of the same rely ultimately a union to on its economic always position: company’s controls the strength. profit. maximization of As the Cir- Seventh 397 U.S. at 90 S.Ct. 826. explained, company cuit that does “what- its The union’s failure to obtain desired profits by mini- ever it can to maximize its ultimately the conse- increase 6% mizing a test of its labor costs invites quence strength. of its lack of economic strength with its unions. It not commit does years, percentage of unionized recent practice.” Graphic an unfair labor Commu employees at Fielderest had decreased NLRB, 977 nications International Union v. than 25%. 65% of its to less (7th Cir.1992). 1168, 1171 F.2d Moreover, salary agreed the union had seeking for union’s varied motivations from Fieldcrest’s com- increases 4%-4.5% pay appear equally irrelevant a 6% petitors. importantly, though, un- Most validity bargaining. Perhaps to the viability of a publicly ion disavowed the pay sought one-up the non-union the union promised strike and even Fieldcrest’s em- campaign further its at Fieldcrest’s raise to ployees that it would not strike. Given these enlarge its mem- circumstances, other facilities thus of a strike was no the threat good for credible, bership. Is it an absence of faith longer and the realities of the bar- process union to want more than what the gaining determined the ultimate re- course sult. considers a “fair” increase? Of underlying mo- not. Whatever the union’s tivéis) 6%, seeking may have been improve merely attempting to union was good The Board also contends underlying membership. inquiry must include the condition of faith crediting of the Union’s wit- conflict ALJ’s wholesale precisely this fundamental It discrediting of the corresponding compa nesses the rational interests between simply than Company’s witnesses was more union that necessitates ny and those of the dispassionate happenstance result of a bargaining place. in the first And collective testimony of actually of the substantive parties consideration ultimately, long so as the are question. Regardless in of (and exists), the 250 witnesses need bargaining no charade one merely composite inno- it was of whether various motives af not be concerned about outright against the Com- cent errors or bias agree fecting negotiations ultimate the —the pany in the decision we review legiti that resulted always parties’ the ment will reflect herein, conclusions, the ALJ’s and conse- bargaining strength. As reliance on mate Board, judgment are whol- quently the strength precisely bargaining what one’s Accordingly, al- Act, ly insupportable in law. Congress passed it the intended when join rejecting though judgment I in the the good the absence of this cannot substantiate salary Porter, Board’s order of a retroactive 90 faith. H.K. 397 U.S. at S.Ct. Company’s employees, I dissent for the at 826. majority’s of Board’s from the affirmance the sum, respected have In the Board should liability determinations. bargaining pro- the outcome of the collective sundry, The ALJ’s errors are various and cess. categories of but three broad errors combine LUTTIG, palpable to confirm the unfairness of the Judge, dissenting in Circuit First, proceeding contraven- below. direct part: precedent, of court’s the ALJ uni- tion this possibly read the record and One cannot formly employee-witnesses credited those judge’s the administrative law decision behalf,.merely who testified on the Union’s being with the issue this case without left they employees because were of Fieldcrest that, through impression whether a series of Cannon; second, violations of the ALJ found or, legal innocent errors as Fieldcrest Can- many Labor Relations Act in the National contends, through pro-Union manifest non not, law, incidents that are as a matter of bias, gave Fieldcrest a chance the ALJ never Act; even colorable violations of the to have its defense to the Union’s claims third, many findings the ALJ based of his of Indeed, fairly opinion upon considered. the whatsoever, merely violation on no evidence liability Company’s which the substantial inferring Act certain violations of the nothing predicated appears now as more erroneously manage- what he found to be prede- than a rationalizations for a series of ment animus toward the Union. finding liability against termined of the Com- pany. example, conducting The first foremost error of the ALJ For after some that, days hearings, more was in direct contravention of this 36 of which consume precedent, weighted heavily pages transcript, than 7800 of the ALJ ended court’s he the testimony nearly every testimony up crediting the of of Fieldcrest who testi- against merely single appeared Company, of who fied because one the 100 witnesses discrediting employed Company. of were In on behalf the Union and testimony nearly every single Ayres Rela- of one of the L.S. & Co. v. National Labor Bd., Cir.1977), presented by Company, 150 witnesses tions 551 F.2d 586 we that, finding approximately held fact that a witness is an 130 violations “the among employee at testifies ad- National Labor Relations Act from the time he versely only 130-plus alleged by the Union. to his is at most violations notes, credibility comparative bearing upon num- his and one As the factor weight a factfinder entitled to little unless it is estab- bers witnesses credited cannot, itself, serve as a measure of the lished that he does not know that he is time, protected testifying.” (emphas- correctness of a At the same Id. at 588 decision. added). however, disregard Ayres, the real we cannot be naive to es direct that, contrary expressly repeatedly held that the possibility this instance ALJ majority’s assumption, testimony of current was entitled uncritical

79 Cook), Turner), because, (Patsy & Barbara 104 weight” he rea- to “considerable (Wilbert Cochran), (George em- & soned, “unlikely that a current Williams it was Rossner), (Cynthia Hanes), testify falsely against his John ployee will (Drenia (Sharon Davis), Smith), Representative are at 61 & n. er.” J.A. n (Diana that, (Clafter Jackson), Hamilton), following: “[t]he Coleman, (Norma employee, [Angela] Chapman). [was] a current 61; weight,” JA. at to considerable entitled majority acknowledges that the ALJ as a Eric “status Strickland’s by crediting solely erred witnesses based testimony ma[de] his employee at the time of employees, their status as but concludes that Em- unlikely against that he his testified credibility” there are “other indicia of which interest,” 61-62; that ployer’s Sandra J.A. the error harmless. There are no render employee at time “was a current Greene credibility” indicia of “other evident reason, testimony, that it is of her and for Tellingly, the record us. even the before false,” unlikely testimony J.A her identify, majority is able the scores 62; Benny McIntyre’s “testimony, as at issue, only meager at a of incidents seven or employee, entitled to consid- [was] a current eight examples supposedly which confirm 64; that un- weight,” “it[was] J.A. at erable pre- that there were alternative reasons for testimony likely the[ ] [of suming pro-Union the truthfulness of the Johnny High] against the Brown and Térros testimony presumptively witnesses’ dis- false,” employer was J.A. at interests of their crediting testimony. Company witnesses’ 66; a current that Drenia Smith’s status as And, fact, noticeably not one of even these credibility,” J.A at employee “enhance[d] her examples supports majority’s conclu- few 67; that, employee, a it [was] current “[a]s sion. Lyles] falsely unlikely that testified [Brenda majority examples cites two interest,” 68; at against Employer’s her J.A. by company of denials wit- “absence direct “trustworthiness and that Oreida Clarke’s of its claim that there support nesses” a augmented her status as current [was] reliability were other indicia of for the ALJ’s fact, at In the ALJ employee,” J.A. impermissible crediting pro-Union wit- employee credited witnesses due expressly example supports its con- nesses. Neither employment solely partially to their sta- these, In first of the incident clusion. (and, likely, implicitly in tus some SO times Whitley, others), between James Allman and Graciela clearly sufficiently large many although ante at the ALJ did note impossible of instances such that it is number testify,” supervisor “Allman did not the ALJ major- conclusions as the to affirm the ALJ’s crediting Coleman), rely on that fact in (Angela did not even ity J.A. at 61 does. See (Sandra (Eric Greene), Strickland), Whitley, nor did he mention that fact his 62 64 61 legal J.A at 66. (Benny McIntyre), (Johnny High & Tér “factual and discussion.” 66 (Brenda (Drenia Smith), event, Brown), any not an incident in 68 this was ros 67 (Oreida (Sandra Clarke), explicitly credited witness Lyles), 76 which ALJ 69 (Sharon Greene), employee In the second (Tony Bumgarner), 77 based on his status. 77 (Joanne incident, Davis), Crawford), alleged that Sylvia Oreida Clarke Diggs 78 & (Drenia Deal), threaten- Smith, Company posted Spanish notice Boger, Pat & Sheila 78 cards, (Vicki Coleman), Fink), signed union ante at (Angela ing workers who 79 83 78 noted, 71, but, Smothers), “all of the (Sherry Anthony), 84 as the ALJ himself (Terry 83 (Sharon Davis), posting any Crawford), Company’s denied (Sylvia 88 witnesses 87 notice, Jordan), one of the nature McIntyre), (Peggy Spanish much less (Benny 88 89 course, (Euretha Lee, at 69. Of Sherry Anthony, Paula described Clarke.” J.A & (Wade conclusion, (Sharon Davis), majority’s the fact Brice), Story), contrary to the 90 89 (Eric (Sharon Davis), Strickland), Company’s supervisors that not all of the 94 testimony (Vickie Watts), Fink), does not render Clarke’s (Kemberly 95 testified (“[T]he (Pa (Brenda Hanes), Compare at 71 ante Cynthia unrebutted. Harrell & posting such Boone), company’s who denied (Jenny witnesses tricia Vires & Daniel (Oscar supervisors who Vires), Clark), ‘include all (Patsy a notice did not Turner 69) determinations, examples of and it cites four may (quoting J.A. at have done so.’” added)). supposed reliance on such demean- (emphasis the ALJ’s ma- Ante at 71-72. Even the or evidence. majority single example cites but concede, however, that, in jority must two “comparative vagueness” of the Union’s instances, the ALJ himself did not even these witnesses, Company’s witnesses vis-a-vis the crediting of cite demeanor as a reason for his 71, and, likewise, example this does ante course, witnesses. Of even when the Union’s majority’s support assertion demeanor, rely upon did it cannot the ALJ crediting there were alternative reasons possibly be known whether the ALJ would improperly by the the witnesses credited pro-Union credited the witnesses’ testi- have supervisor or not Howard ALJ. Whether alone, mony strength had of demeanor hardly Hall “could remember” the details impermissibly accorded those the ALJ not Brenda the conversation between himself and weight at witnesses’ considerable Hall, Lyles, as even the ALJ ante the outset. conceded, saying anything about “denied plant supervisors added that closure and Finally, “atmo- holds that the against making any such state- been warned reprisal against sphere of and recrimination ments.” J.A at 68. supporters” justified pre- the ALJ’s Similarly, impossible it is to discern sumption regard of truthfulness with to Un- majority’s example of lone “internal inconsis- Obviously, if employees, ion ante at 72. even tency” testimony any Company witness existed, atmosphere such an this alone would all, inconsistency at much less one that would ground crediting, no for as a matter of justify crediting of Union witness testi- law, party’s witnesses over another’s. one mony Company testimony. over In witness uphold findings ground To the ALJ’s on this example, supervisor Perry Harkey sim- altogether is to relieve the Union of its bur- ply spent denied he additional time on prove den to violations of the Act. respon- the floor in order to fulfill his added sum, contrary majority’s In to the asser- sibilities to “be available” to answer tion, simply in there is no basis the record questions during ee the election. There is sustaining findings, in for the ALJ’s the face nothing arguably in even inconsistent this presuming of his conceded error in the truth- indeed, (with- testimony; finding the ALJ’s pro-Union employee all fulness of witnesses Harkey’s testimony explanation) out contrary Company of all and the witnesses. ful- inconsistent because he could not have responsibility his filled added “be avail- Wholly apart from the ALJ’s erroneous questions increasing able” for without his crediting employee of the Union’s witnesses floor, nothing time on the at J.A. is short witnesses, Company’s over the the ALJ silly. egregious found violations of the NLRA corroborating testimony” The “substantial where, law, aas matter of there were not majority which the would have one believe violations. even colorable Illustrative is the supports credibility the ALJ’s determina first “violation” described the ALJ. tions, corroborating ante at is not testi There, supervisor Diane Hartis handed out mony example, supervisor For at all. when a pro-company employees t-shirts who agreed employee and an that a conversation Employee Syl- asked for them. at 58. J.A. occurred, place that an took or incident but shirt, via Crawford asked Hartis for a and disagreed said or oc as what was what gave “[f]ine” Hartis said and her one. Id. curred, ALJ, consistent with the manner Hartis learned that intended When Crawford in which he conducted the balance of the shirt, Crawford, to deface the she told “[i]f hearing, agreement partially found that the heart, you your you please just in search will See, employee’s testimony. corroborated the said, give back.” “I the shirt Id. Hartis also 64, 103. e.g., J.A. at don’t want to be made a fool of.” Id. Craw- extent,” majority employees

“To a lesser ford admitted that some of the relies assertedly upon defacing witness demeanor evidence were the shirts and told Hartis that upon by making credibility give in relied the ALJ she would the shirt back to Hartis she Thus, bottom, errors in replied, “Please at the ALJ’s this slogan. Hartis changed the back,” egregious pervasive case are so that it later returned and Crawford give possibly cannot be said that the record offers the basis of these ex- Id. On the shirt. alone, findings. for his concluded that Har- substantial evidence changes the ALJ has, holding contrary, for “coercively interrogated about Crawford tis least, course, purposes of our Id. Har- this case redefined union sentiments.” Of her findings in the into return the shirt role review of such ALJ request that Crawford tis’ arguably empty proforma act of ratification. deface it was even rather than interrogation in of sec- violation coercion respectfully I dissent. 8(a)(1). tion Company found that The ALJ even MICHAEL, Judge, concurring in Circuit prom- Act when it remedied or violated the part dissenting part: in remedy employee grievances, J.A. ised to readily parts through I I concur IV 95-98, grievance meetings it held and when dissent, majority opinion. respectfully I employees. The utter ridiculousness (in however, majority’s holding part from the findings perhaps best summed the ALJ’s V) authority that the Board exceeded its following passage, which the ALJ up ordering grant its union work- Fieldcrest to of the M.D. Ford’s “violation” described wage the same ers NLRA: unilaterally discriminatorily granted that his Ford’s own establishes unrepresented plants. I dissent workers advent meetings with after the I extent because believe substantial markedly campaign increased supports evidence the record as whole meetings pri- number of asserted over the finding the Board’s that Fieldcrest violated question, as that time. There is no or to 8(a)(3) § of the National Labor Relations admitted, that he asked Ford Act, 158(a)(3), 29 U.S.C. and because problems. concerns and about their primary responsibility and Board has “the added). And, (emphasis unfortu- at 96 J.A. discretion to devise remedies that ef- broad examples of the ALJ’s errors nately, similar Act, subject only policies of the fectuate the throughout record. abound Sure-Tan, judicial to review.” Inc. v. limited injury, insult to Finally, as to add NLRB, 2803, 883, 898-99, 104 467 U.S. S.Ct. from the countless violations ALJ inferred (1984) 2812, (interpreting 81 L.Ed.2d 732 “extraordinary Company’s animus” 160). Moreover, 10, § § NLRA 29 U.S.C. violations,” of which he “widespread both pay remedy majority’s holding on the is improperly only he found to exist because precedent and inconsistent our own cre- witnesses and credited all of the Union’s authority split between ates inadvisable 8(a). misread section Most nota- otherwise us and our sister circuits. bly, relied on these unwarranted the ALJ prima facie presumptions to establish cases I. motivating fac- protected conduct was a that practice with re- discharge 1978 Fieldcrest’s Company’s discipline or Since tor in the 110, 112, negoti- spect wage increases had been employees. at pro-union J.A. 117, fact, wage union-represented 114, 116, ate a increase for 119. In the ALJ some- give the same plants first and afterward exclusively on anti-union animus times relied plants.1 The Board to its non-union prima at increase facie cases. J.A. establish campaign to discour- part of a found as 110,112. pay be handled. In departures how third-shift should only over 1. There were a few immaterial plants de- wage was 1981 a increase in practice. In Fieldcrest from this 1987 1988 dispute payment layed of insurance newly-acquired plants due to a over employees re- at certain finding these scat- premiums. Board's wage increase in order to stan- ceived smaller alterations pay pay employees tered incidents were not material with the scale of dardize their by policy supported wage company already increase plants In Fieldcrest’s at the owned. as a whole. company delayed implementation evidence in the record of a substantial 160(e). 10(e), § dispute 29 U.S.C. pay plants See NLRA at union due to increase plants, attempts organization. age membership at other Field- These state- (in 1991) departed highest from its usual and crest ments came from the levels of customary handling wage practice of increas- management as well as [Fieldcrest’s] sev- entering wage Specifically, es. before into supervisors shop eral floor. union, negotiations unilaterally with the Cannon, Inc., 54, Fieldcrest 318 NLRB No. granted percent wage a 5.5 increase to work- (1995). 2-3 The Board concluded represented ers who were not the union. company’s conduct violated NLRA granted though Fieldcrest this increase even (3) (5). 8(a)(1), §§ & company money part had lost the first year. wage negotiations II. wage refused to offer the same increase to workers, represented offering only per- a 4.5 remedy The Board’s choice of must be cent increase.2 arbitrary, capricious, enforced unless it is The Board found that numerous Fieldcrest manifestly contrary to the statute. ABF unrepre- supervisors told at the NLRB, Freight Sys., 317, Inc. v. 510 U.S. plants they larger 322-24, 835, sented received their 839, S.Ct. L.Ed.2d 152 wage defeating (1994) (on increase as a reward for remedial issues “the Board’s views Supervisors plants union. at union told em- deference”); greatest merit the accord Sure- ployees they Tan, were denied a increase 898-99, 104 467 U.S. at at 2812-13 S.Ct. plant. because were at a union One (1984); NLRB, Phelps Dodge Corp. v. supervisor said that the insisted on 177, 194, 845, 852, U.S. S.Ct. 85 L.Ed. wage the smaller “to discredit (1941); NLRB, Monfort, Inc. v. try Union and it out of mill.” drive Cir.1992); F.2d 1548 & n. 15 The Board found: Corp. Conair (D.C.Cir.1983), denied, discriminatory departure

[Fieldcrest’s] 1385-87 cert. 467 U.S. (1984). practice granting wage from its identical 104 S.Ct. 82 L.Ed.2d 819 Given earth, represented unrepre- take-no-prison benefits to its Fieldcrest’s “scorched sented approach stop indicates ers [Fieldcrest’s] unionization without limitations,” bargaining regard statutory Maj. desire to frustrate and to “un- Op., 73,3 destroy” remedy dermine and the Union. ante at [Field- the Board’s chosen appropriate. fur- crest’s] [anti-]union extreme animus is

ther evidenced the numerous unfair practice labor in violations discussed A. judge’s [administrative decision. law] pattern discriminatory a Such of conduct is recognize simple I that a violation of the good-faith bargaining, inconsistent with duty bargain good to in justify faith cannot and reflects [Fieldcrest’s] determination pay remedy the Board ordered. H.K. agreement not to reach with the Union. NLRB, 99, 108, Porter Co. v. 397 U.S. 90 addition, (1970). agents 821, 826, made [Fieldcrest’s] S.Ct. 25 L.Ed.2d 146 If an during statements both employer bargain good and outside the in refuses to faith in negotiations strongly suggested 8(a)(5), § which may violation of the Board order wage-increase proposals its employer bargain good to the Union to faith but punish may were intended compel employer both to the Union not accept any to attempts for organize unorga- particular its to union demand. The rule is intend- plants any nized and to employers undermine further ed to allow to Indeed, concurring opinion wage 2. Stalingrad characterizes the 3. Fieldcrest mounted “a de- disparity increase as a unionization, difference.” Cone. "1% fight- fense of sorts to the threat of Op., Although disparity ante at 74. is a one Union, hand, ing by any means at from rock percentage point wages difference total when are to rock and from tree to tree.” NLRB v. Horizon compared, magnitude disparity of the Servs., 22, (1st Cir.1985). Air 29 n. 5 greater much when the amounts of the increases compared employ- are to each other. Non-union got percent higher ees a raise that was 22 than employees.

83 B. The Board ex own contract. make their attempts to write authority when it its ceeds additionally found that Field- The Board NLRB v. for them. parties’ contract wage unprecedented creation of an crest’s Union, AFL-CIO, Agents’ Int’l Insurance disparity completely separate amounted to a 419, 426-27, 477, 488, 4 80 S.Ct. 361 U.S. practice: discriminatory kind of unfair labor (1960); NLRB v. American L.Ed.2d withholding “wage of a increase from its 824, Co., 395, 404, 72 S.Ct. Ins. 343 U.S. Nat'l represented employees order to discour- (1952). 829-30, “[W]hile 96 L.Ed. age support for the Union.” Can- require power ... to em Board does have non, Inc., 54, 3; NLRB No. at see also negotiate, to it is ployers and (“when, here, employer at 3 n. as an has id. compel or a power to without always wages company-wide treated agree any contractual union to to substantive policy during basis and deviates from collective-bargaining agreement.” provision of a collective-bargaining negotiations in a con- Porter, at K. 397 U.S. H. employ- text of statements to the effect that duty bargain collec to “[T]he S.Ct. being punished having are selected ees carry duty to reach tively not with it the does representation, the conduct violates 90 S.Ct. at 824 agreement.” Id. (1)”) 8(a)(5), (3), (concurring state- Sec. Cong., S.Rep. 74th 1st (quoting No. Stephens). Discriminatory ment of Member (1935)). Sess., This rule is embodied withholding wages, regardless of of whether 8(d), provides § NLRA which subject wages negotia- also are the of those collectively performance bargain is the 8(a)(3) tion, § separately violates of the Na- obligation the mutual Act, Relations and the Board tional Labor so employees to representative of the and the ignored simply has found.4 and confer meet at reasonable times portion this of the Board’s decision. hours, respect wages, good faith with and conditions of and other terms The Board did not order Fieldcrest ment, negotiation agreement, or the employees wage grant its union increase thereunder, any question arising 8(a)(5) or § the violation of NLRA redress faith). incorpo- contract (breach the execution of a written duty bargain good requested rating any agreement Instead, reached imposed remedy to the Board obligation party, does either but intentional violations of redress Fielderest’s agree pro- compel party 8(a)(3) (discrimination to a either § motivated NLRA making posal require the conces- membership) discourage union a desire to (interference 8(a)(1) pro- sion. and NLRA Indeed, activity).5 the con- tected concerted Finish- recognize I also that Clearwater recognizes curring opinion that Fieldcrest’s F.2d ing Co. refusing represented workers the aim Cir.1982), barring the rule we reaffirmed unrepresented wage gave work- “ordering agreement” on con- Board from “discouraging at its oth- was unionization ers majority’s refusal to en- tract terms. The Creating wage at 77. a plants.” er Ante remedy pay would therefore force discouraging disparity with the motive had done was violate correct all Fieldcrest if of the Nation unionization is a clear violation duty bargain good to faith. Casting Act. Acme Die al Labor Relations NLRB, 162, 166-67 (D.C.Cir.1994); Fieldcrest, however, 26 v. F.3d did more. form, 8(a)(3) self-organization, join, right to or prohibits § to “discrimination in re- 4. NLRA organizations, bargain to collec- assist labor employment any gard or to hire or tenure of tively through representatives of their own employment encourage term or condition of engage choosing, in other concerted and to organiza- discourage membership any labor bargain- purpose of collective activities for the tion.” protection, ing and ... aid or or other mutual any right or all such activi- to refrain from the ties requirements, activity” means the exer- 5. “Protected concerted shop except respect to certain union [with 7, any right guaranteed by § negotiated pursuant cise of NLRA to NLRA 8(a)(3)], 157, § including: § U.S.C. NLRB, 357, Peabody simply Coal Co. v. 725 F.2d As in Atlantic Int’l the Board here (6th Cir.1984); 366-67 Eastern Maine Medi quo ordered “a restoration of the status (1st NLRB, 1, v. 658 F.2d 7-8 & n. 4 cal Ctr. prior policy ante.” Id. at 1233. Fieldcrest’s Cir.1981); NLRB, Hosp. South Shore v. any wage disparity was not to allow to exist (1st denied, 40, Cir.1980), workers, F.2d 44-45 cert. union and between its non-union 965, 1481, 450 U.S. 101 S.Ct. 67 L.Ed.2d 614 unilaterally imposed but here Fieldcrest (1981); Indus., 90, Parma 292 NLRB 1988 disparity in an avowed effort break the (1988). “By effectively at *1-2 WL 214278 dislodge plants union and to it from the announcing [represented workers] organized. “deprivation” If of a benefit increase, any would be excluded from employers’ past policy in contravention of an [employer] dispar ... discredited and granting discourage choosing it “would eyes aged the Union in the of its members” union,” representation by may the Board 8(a)(3). Rocky in violation of Mountain benefit, employer grant order re- 138, Hosp., NLRB No. 130 L.R.R.M. gardless contempora- the union is whether (1988) (internal 1487, 1489, 1988 WL 214294 neously seeking the same at the bar- benefit omitted).6 quotation marks gaining Dupont, E.I. table. 501 F.2d at 136. majority explained why The has not Clearwater, by In both H.K. Porter and in employer may discriminatory shield its con- contrast, asking unprec- the union was for an scrutiny simply duct from Board because the edented In H.K benefit. Porter the contemporane- acts of discrimination occur (i.e., sought check-off automatic deduction of ously negotiations. majority’s The deci- employee paychecks), union dues from some- longstanding sion conflicts with Fourth Cir- thing employer never had allowed in the precedent holding may cuit that the Board past. In Clearwater the union demanded employer prior order an to return to its both check-off and a retroactive increase in practices seeking even when the union is pay. simply In this case the union asked the negotiations encourage employer to do employer existing policy to followits of main- twenty years so. For than more it has been taining equivalent wages between its union employer may the law this circuit that an plants. and non-union distinction be- persist practice “ap- not in a that has been presented tween the situation Clearwater praised discriminatory simply as in itself’ Dupont and that in and Atlantic Int’l is so negotiation in a because session the union straightforward panel the Clearwater sought employer has to dissuade the from Dupont did not even cite and Atlantic Int’l. persisting practice. in the unlawful E.I. Du pont De Nemours & Co. v. 501 F.2d Today’s judgment issue also (4th Cir.1974) curiam) (per (employ puts every inus conflict with the law of other job-related privileges er eliminated repre question. circuit that has considered the A unrepresented sented units but allowed split circuit should not be created “without privileges; properly workers retain Board Ltd., strong Mayer Spanel cause.” v. Int’l may privileges order restoration of and bar (7th Cir.) (Easterbrook, J.), 51 F.3d employer’s negotiator insisting from to im — denied, U.S. -, 563, 133 cert. 116 S.Ct. elimination); passe on their NLRB v. Atlan (1995); County L.Ed.2d 488 accord Butler Corp., tic Int’l 664 F.2d Cir. Heckler, Hosp. Memorial 1981) (employer unilaterally wages reduced (3d Cir.1985). does of union workers at time when explain why compelling this case is so as to reduction; seeking negotiate wage justify departure applicable precedent properly wage); Board ordered restoration of in this area. Co., 1229, NLRB v. 832 F.2d cf. Weathercraft (10th Cir.1987) (Board may upheld order reme- In Eastern Maine the First Circuit dy “restoring quo”). remedy the economic status a make-whole identical to one the union, Workers, may impermissibly 6. Another the United Textile had crest also have favored one another, organized plant. grant- one Fieldcrest union over in violation of NLRA 8(a)(2). not, however, UTW-represented § ed workers same increase The Board did address granted unrepresented it workers. Thus Field- whether Fieldcrest violated this section. membership,” may courage the Board employer departed There ordered here. 8(a)(3) repre- § from find a violation and order the em- and withheld past practices from wage granted it ployer increase to make its union whole workers sented employer’s The unrepresented granting workers. them the same increase. Acme Die 8(a)(3) § to violate NLRA Casting, was held conduct 26 F.3d at 165-66. wage dis- employer created

because majority’s holding pay remedy discouraging union the intent of parity with puts precedent with our own us odds Maine, F.2d at 9- membership. Eastern of our sister circuits. Accord- with the law rejected expressly First Circuit 10. The ingly, respectfully dissent on that issue. I defense employer’s defense —identical Otherwise, I concur. legitimately withheld here —“that asserted weapon to an economic wage increase as Id. bargaining position.” “[A] improve its remedy a section order []

make whole

8(a)(3) type remedy is a standard [ ] violation and does not exceed cases

in discrimination Shore, 630 authority.” South Board’s 7; Pegasus Broadcast- 45 n. accord

F.2d at Juan, NLRB, 82 F.3d ing Inc. v. San MOLLER, Plaintiff-Appellant, Melba J. (1st Cir.1996). today not majority’s conflicts decision v. also of the First Circuit but only with the law COMPANY; El EL CAMPO ALUMINUM Sixth, Seventh, law of the with the Campo Company Hourly Pen- Aluminum In NLRB Circuits. the District of Columbia Plan, Defendants-Appellees. sion Inc., Cir.1992), Thill, v. 980 F.2d No. 95-20913 retroac- made a Summary Calendar. unrepresented but re- for its workers tive represented for its workers. fused to do so Appeals, United States Court employer violated found that the The Board Fifth Circuit. 8(a)(3), enforced § and the Seventh Circuit Judge Pos- make-whole order. the Board’s 1,May 1996. “workers’ for the court that ner said doubted” backpay cannot be entitlement sought negoti- though

even the union Thill, retroactivity. wage increase

ate Indeed, the court held that

F.2d at 1141. paid to be interest

workers were entitled Coal, Peabody increase. Id.7 expressly fol- Circuit

F.2d at the Sixth Eastern Maine rule and enforced

lowed the remedy. And the

the Board’s make-whole held, opin- in an

District of Columbia Circuit Mikva, by Judge that where

ion written given unrepresented work-

wage increase represented workers denied to

ers and accepted prior

amounted to “a deviation wage to create a

practice” and the decision by anti-union ani-

disparity “was motivated

mus, discriminatory by] a desire dis- [or duty only employer’s to disclose financial to an Graphic International Union Communications (7th Cir.1992), negotiators. did The Board information to union relies, opinion upon concurring see which the 8(a)(3) in that case. find a violation inapposite that case relates ante at because

Case Details

Case Name: Fieldcrest Cannon, Inc. v. National Labor Relations Board

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Oct 10, 1996

Citation: 97 F.3d 65

Docket Number: 95-2658, 95-2829

Court Abbreviation: 4th Cir.