The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EVERGREEN AMERICA CORPORATION,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 06-2105
LOCAL 1964, INTERNATIONAL
LONGSHOREMEN’S ASSOCIATION,
AFL-CIO,
Intervenor.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 06-2183
EVERGREEN AMERICA CORPORATION,
Respondent.
On Petition for Review and
Cross-application for
Enforcement of an Order of the
National Labor Relations Board.
(22-CA-25295)
Argued: January 31, 2008
Decided: June 26, 2008
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
2 EVERGREEN AMERICA CORP. v. NLRB
Petition for review denied; cross-application for enforcement granted
by published opinion. Judge Gregory wrote the opinion, in which
Judge Michael joined. Judge Duncan wrote a separate opinion concur-
ring in part and dissenting in part.
COUNSEL
ARGUED: Francis X. Dee, MCELROY, DEUTSCH, MULVANEY
& CARPENTER, L.L.P., Newark, New Jersey, for Evergreen Amer-
ica Corporation. David Arthur Fleischer, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for the National Labor
Relations Board. Herzl Sol Eisenstadt, MARRINAN & MAZZOLA
MARDON, P.C., New York, New York, for Intervenor. ON BRIEF:
John J. Peirano, William A. Cambria, MCELROY, DEUTSCH,
MULVANEY & CARPENTER, L.L.P., Newark, New Jersey, for
Evergreen America Corporation. Ronald Meisburg, General Counsel,
John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, Robert J. Englehart, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
the National Labor Relations Board. Christopher P. Getaz, GLEA-
SON, MARRINAN & MAZZOLA MARDON, P.C., New York, New
York, for Intervenor.
OPINION
GREGORY, Circuit Judge:
After losing its representation election, Local 1964, International
Longshoremen’s Association, AFL-CIO ("Union") filed a complaint
against Evergreen America Corporation ("Evergreen") with the
National Labor Relations Board ("Board"). The Board found that
Evergreen committed numerous unfair labor practice violations and
issued a bargaining order. On appeal, Evergreen contends that the
Board erroneously found that the Union enjoyed a pre-election major-
ity and substantial evidence did not support the Board’s factual find-
ings. Evergreen also argues that a bargaining order is unnecessary
EVERGREEN AMERICA CORP. v. NLRB 3
because traditional remedies would be more than adequate. We dis-
agree with Evergreen’s contentions and enforce the Board’s bargain-
ing order in its entirety.
I.
Evergreen is the general agent in North America for three of the
world’s leading ocean carriers, providing customer service, sales,
marketing, logistic and administrative support. In March 2002, two
clerical employees of Evergreen met with the Union to discuss the
Union’s representation of Evergreen’s clerical employees in northern
New Jersey. After holding a meeting on April 15, 2002, the Union
distributed authorization cards which would allow the Union to repre-
sent the employees. The employees also formed an organizing com-
mittee to circulate additional cards among the employees that were
not able to attend the meeting. Some authorization cards were signed
at the meeting. Others were given to employees who distributed them
to other employees; both groups of employees obtained signed cards
from other employees. By June 15, 2002, sixty-two of the 1151
employees in the appropriate bargaining unit had signed authorization
cards. On June 4, the Union filed a petition for an election among
Evergreen’s clerical employees in northern New Jersey. The election
was held on July 17, and the Union lost by a vote of sixty-one to fifty-
two.
After losing the election, the Union filed unfair labor practice
charges with the Board. The Board’s General Counsel ("General
Counsel") issued a complaint, which alleged that Evergreen had com-
mitted numerous violations of Sections 8(a)(3) and (1) of the National
Labor Relations Board Act ("Act") (29 U.S.C. §§ 158(a)(3) and (1))
and that a bargaining order was necessary to remedy those violations.
After a lengthy hearing, the Administrative Law Judge ("ALJ") issued
a decision sustaining most of the allegations in the complaint, dis-
missing others, and recommending a bargaining order to remedy the
violations found. Evergreen and the General Counsel filed exceptions.
1
The record provides two different totals for the number of employees
in the bargaining unit, 114 and 115. We used the higher total in our anal-
ysis because the union had a majority even when using the higher total.
4 EVERGREEN AMERICA CORP. v. NLRB
The Board found that the Union had valid cards and that Evergreen
violated Section 8(a)(1) of the Act by unlawfully interrogating
employees on thirteen occasions; soliciting employee grievances and
implicitly promising to remedy them on fifteen occasions; explicitly
making the same promise on eight occasions; threatening reprisals on
nine occasions; twice instructing employees not to attend union meet-
ings and to throw away union literature without reading them; and
once creating the impression those employees’ union activities were
under surveillance. The Board further found that Evergreen violated
Sections 8(a)(3) and (1) of the Act by granting unprecedented large
across-the-board wage increases to bargaining-unit employees, and
promoting an unprecedented number of such employees prior to the
election and by granting eight other benefits, before and after the elec-
tion, to dissuade the employees from supporting the Union.
The Board also found that the unfair labor practices described
above, as well as other unfair labor practices not contested in this
Court, rendered it unlikely that a fair rerun election could be held.
Further, the Board found that these unfair labor practices had not been
effectively repudiated nor had the passage of time diminished their
effect. Accordingly, the Board concluded that a Gissel II bargaining
order was necessary to remedy those violations. The Board ordered
Evergreen to cease and desist from the unlawful conduct, to bargain
with the Union upon request, and to take other affirmative remedial
action. Evergreen filed a petition for review in this Court, and the
Board filed a cross-application to enforce the bargaining order.
II.
In its petition, Evergreen first contends that facts found by the
Board do not support its inferences or conclusions that Evergreen
committed "hallmark" violations. In support of its conclusion that
Evergreen committed unfair labor practices, the Board found that
prior to the election Evergreen (1) granted unprecedented and exces-
sive across-the-board wage increases to unit employees; (2) manipu-
lated its promotion process in order to promote more unit employees
than in past years; (3) promised to remedy grievances in order to
encourage employees to reject representation; and (4) granted
employees new or improved benefits, some of which were granted
after the election.
EVERGREEN AMERICA CORP. v. NLRB 5
It is now well settled that Board findings of fact are conclusive as
long as they are "supported by substantial evidence on the record con-
sidered as a whole." 29 U.S.C. § 160(e); Overnite Transp. Co. v.
NLRB, 280 F.3d 417, 428 (4th Cir. 2002) (en banc) (citing Universal
Camera Corp. v. NLRB, 340 U.S. 474, 490-91 (1951)). Substantial
evidence is "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Richardson v. Perales,
402 U.S. 389, 401 (1971). While "[t]he Board may not base its infer-
ence on pure speculation . . . it may draw reasonable inferences from
the evidence." Overnite Transp. Co., 280 F.3d at 428 (citing Owens-
Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1362 (4th Cir.
1969)). Even though we might reach a different result after hearing
the evidence in the first instance, we defer to the Board’s findings of
fact that are supported by substantial evidence. Id. (citing NLRB v.
Daniel Constr. Co., 731 F.2d 191, 193 (4th Cir. 1984)).
Under this standard, we conclude that substantial evidence supports
each of the Board’s findings and address their specific findings with
respect to the unprecedented wage increases, the unprecedented pro-
motions, promises to correct grievances, and the new and improved
benefits seriatim.
A.
Evergreen contends that the Board ignored substantial business rea-
sons for the across-the-board wage increases. Specifically, Evergreen
claims that its wage structure was falling behind its competitors and
it needed to reduce employee turnover because the company expected
an improved financial environment and substantial business expan-
sion.
"On July 15, 2002, two days before the election, Evergreen’s [115]
bargaining unit employees received their paychecks, which included
across-the-board raises of $400 per month for all bargaining unit
employees. This was the first year employees had received across-the-
board increases." (J.A. 1182.) The Board found that "[p]rior increases
had been given to employees, based primarily upon a ‘merit’ system,
wherein evaluations given by supervisors that reveal a numerical
score for each employee, is utilized by upper management to decide
upon increases for employees." (J.A. 1182.) Based upon this system,
6 EVERGREEN AMERICA CORP. v. NLRB
depending upon the score received by employees, some employees
would not receive any raise at all on account of a low score. The
Board found that ninety-three percent of the bargaining unit employ-
ees received a bigger salary increase in 2002 than they had in the
three previous years combined. The Board also found that during the
course of the organizational campaign, various Evergreen supervisors
spoke to several employees regarding raises and/or Evergreen’s busi-
ness.
In response to Evergreen’s alleged justification, the Board found
that although there was evidence that Evergreen had increased its
quantity of service, "[Evergreen had] not demonstrated that there had
been at that time any increase[] in revenue or in profits." (J.A. 1191.)
Although there was testimony that profits and revenues were gradu-
ally increasing at that time, this testimony had not been substantiated
by any documentary evidence. To the contrary, as was found by the
Board, "[Evergreen’s] position paper establishes that the first 6
months of 2002, [Evergreen’s] revenues were substantially lower than
they had been for the comparable period in 2001 when business was
allegedly so bad that it postponed its July raise to October." (J.A.
1191.) After a detailed explanation, the ALJ concluded that "in the
context of these unfair labor practices, reasonable employees would
have viewed the 2002 wage increase as having been conferred by
[Evergreen] in order to undermine support for the Union." (J.A.
1192.)
After reviewing the record, we find that there was substantial evi-
dence to support the Board’s conclusion.
B.
In July 2002, Evergreen employed 115 employees in the bargaining
unit. Prior to the July promotions, sixty-two employees were eligible
for promotions from General Schedule employee ("GS") to Assistant
Manager ("AM"). On July 1, 2002, twenty employees in the unit were
promoted to AM. Based on testimony from several witnesses, the
Board found that there was essentially no difference between AM and
GS job functions. The Board also found that "the promotion to AM
is essentially a reward for superior performance, which entails addi-
EVERGREEN AMERICA CORP. v. NLRB 7
tional compensation." (J.A. 1193.) In the previous two years, a total
of six people had been promoted.
The record revealed that one of the employees promoted, Chris Yu,
was notified of her promotion by her supervisor Kevin Huang on or
about July 1, 2002. Huang congratulated Yu and informed her that
she was promoted to AM effective July 1, 2002. During that same
conversation, Huang told Yu that the Union is "no good," and asked
her if she had decided which "side to choose" in the election. (J.A.
1194.) Yu replied that she had not chosen a side yet. Huang then
reminded her that the Company treats its employees well, so "don’t
let the company down." (J.A. 1194.)
Sherry Yao, also promoted, testified that she worked at Evergreen
for thirteen years. She was also told by Jimmy Kuo, an Evergreen
executive, that "the Union is not good for her, is controlled by the
Mafia and was trying to take money from her." (J.A. 1194.) Kuo
asked for suggestions about changes in the company or any com-
plaints about her treatment by Evergreen. Yao responded that she had
been working for the company a long time and had not had a promo-
tion. Kuo acknowledged that it was difficult to judge why she had not
been promoted although he attributed some of the decisions to luck.
According to Yao, there were about ten employees in her department,
and for the past three years, there were no promotions in that depart-
ment. (J.A. 1194.)
The Board was not required to identify how many promotions
would have been authorized absent the Union’s campaign, but it did
find that Evergreen did not establish that it would have promoted
twenty or even seventeen employees, if not for the presence of the
Union. Thus, the Board concluded that Evergreen manipulated the
promotion process in order to influence employees to withdraw their
support for the Union and to vote against the Union in the election.
(J.A. 1198.) We find that there was substantial evidence to support the
Board’s conclusion.
C.
Evergreen contends that there was not substantial evidence to sup-
port the Board’s finding that Evergreen’s President Thomas Chen
8 EVERGREEN AMERICA CORP. v. NLRB
promised to remedy grievances in his speeches before employees in
the bargaining unit in order to encourage employees to reject repre-
sentation. President Chen stated "that concerns of employees can best
be addressed directly without intermediaries," that he had asked man-
agers to consider items important to the staff, that Evergreen listen to
and consider employees recommendations for improvement, if Ever-
green does not make the effort to deal with employees’ concerns, they
are giving opportunities for unions to come into the work place, and
he hoped that employees would give the company one year to "ad-
dress your concerns," and "let’s make the best of this situation giving
[Evergreen] a chance." (J.A. 1172.)
As the Board observed, "statements that request employees to give
the employer another chance or a second chance are considered
within the limits of campaign propaganda, and are not unlawful prom-
ises of benefit." Noah’s New York Bagel, 324 NLRB 266 (1976); Nat.
Micronetics, 277 NLRB 993 (1985). However, as the Board found,
President Chen went further than merely asking for a chance to show
improvement. President Chen "specifically referred to suggestions
made by employees to management, promised to address the employ-
ees’ concerns, without ‘intermediaries’ i.e., the Union." (J.A. 1172.)
According to the Board, the type of statements made by President
Chen "which link improvements in benefits with defeat of the Union
are sufficient to conclude that a reasonable employee would under-
stand the unlawful message that changes would occur more readily if
the employees voted against the Union." (J.A. 1172.)
The Board also noted that President Chen’s statements were merely
one aspect of an "extensive and pervasive campaign of unlawful
solicitation of grievances" as well as other unfair labor practices. (J.A.
1172.) The Board also pointed out that the solicitations, including the
statements by President Chen, represented a substantial departure
from Evergreen’s prior practice. Before the Union’s organizational
campaign began, Evergreen not only did not solicit suggestions from
employees, but also ignored whatever suggestions the employees did
make. We find substantial evidence to support the Board’s conclu-
sion.
D.
Evergreen also contests the Board determination that five benefits
granted by the company after the election should not have been found
EVERGREEN AMERICA CORP. v. NLRB 9
unlawful. These grants of benefits occurred between late August 2002
and January 2003, while the Union’s objections to the election were
pending and a rerun election was a possibility. A grant of benefits
under these circumstances, if designed to erode union support in any
likely rerun election, is no less unlawful than a grant of benefits
designed to erode union support in a scheduled initial election. NLRB
v. Wis-Pak Foods, Inc., 125 F.3d 518, 525-26 (7th Cir. 1997).
Contrary to Evergreen’s contention, the Board did not simply infer
unlawful motivation solely from the timing of the benefits. The Board
also noted that three of the benefits granted (the year-round casual
dress, the improved sick-leave benefits, and the right to bring spouses
to the Christmas Party) were requested by employees in response to
Evergreen’s unlawful solicitation of grievances. The employees had
previously requested and Evergreen had rejected requests before the
Union’s organizational campaign, only to grant them shortly after the
Board election. (J.A. 1178-1182). After reviewing the record, we find
that there was substantial evidence to support the Board’s conclusion.
III.
Next, Evergreen argues that the bargaining order is unnecessary
because traditional remedies would be more than adequate. The Board
concluded that Evergreen’s labor practice violations were so particu-
larly coercive because of their tendency to destroy election conditions
and to persist for longer periods of time than other unfair labor prac-
tices. As a result, simply requiring Evergreen to refrain from unlawful
conduct would neither eradicate the lingering effects of the violations
it committed nor deter their recurrence. The Board found that the
employees’ desire for representation, would be better protected by a
bargaining order than by traditional or special remedies that Ever-
green contends were not considered by the ALJ. The Board finally
concluded that it is unlikely that a fair rerun election could be held
because of the lasting effects of Evergreen’s violations and found that
a bargaining order was appropriate.
"[I]t is the strong preference of our national labor policy not to
impose collective bargaining representatives on employees except
when they have, by a majority vote, elected to be so represented."
Overnite Trans. Co., 280 F.3d at 435-46 (internal citations omitted).
10 EVERGREEN AMERICA CORP. v. NLRB
"Because an election, not a bargaining order, remains the traditional,
as well as the preferred, method for determining the bargaining agent
for employee, the extraordinary and drastic remedy of forced bargain-
ing pursuant to Gissel orders are available only when traditional rem-
edies are insufficient to make possible a ‘fair and reliable election’."
Id. (internal citations omitted). The Board must also make "specific"
and "detailed" findings. Id.
In essence, Gissel orders may be entered in two types of cases: (1)
Category I cases, where "exceptional," "outrageous," and "pervasive"
unfair labor practices have occurred and the coercive effects of such
practices "cannot be eliminated by the application of traditional reme-
dies"; and (2) in less extraordinary, Category II, cases. Be-Lo Stores
v. NLRB, 126 F.3d 268, 274-75 (4th Cir. 1997).
To satisfy the requirements for imposing a Category II Gis-
sel order-the type involved in this case-the Board must make
detailed findings specifically supporting the facts that (1) the
Union enjoyed a pre-election majority in the relevant unit;
(2) the employer committed an unfair labor practice; (3) the
unfair labor practice caused the Union’s majority status to
be dissipated; (4) the possibility of conducting a fair reelec-
tion would be slight; and (5) the employees’ pre-election
sentiments would be better protected by a bargaining order
than by a new election. In turn, to find that the possibility
of conducting a fair election would be slight and that
employees’ pre-violation sentiments would be better pro-
tected by a bargaining order, the Board must specifically
consider and make findings about (a) the likelihood of
recurring misconduct; (b) the residual impact of unfair labor
practices, considering whether that effect has been or will be
dissipated by the passage of time; and (c) the efficacy of
ordinary remedies. See generally Gissel, 395 U.S. at 613-14;
Be-Lo, 126 F.3d at 282.
Overnite Transp. Co., 280 F.3d at 436. In Overnite, we held that
while the Board properly considered the first three factors in this anal-
ysis, the Board nonetheless abused its discretion by "fail[ing] . . . to
direct us to evidence that a new fair election could not be conducted."
Id. Because the Board failed to make the requisite findings and relied
EVERGREEN AMERICA CORP. v. NLRB 11
heavily on a finding of a post-election unfair labor practice that was
unsupported by the evidence, we held that the bargaining order could
not be enforced. Id. at 436-37. In this case, in contrast, the Board
described its reasoning with "scrupulous specificity," Id. at 438, and
with particular attention to each of the factors we enunciated in Over-
nite. Furthermore, as we explain, the Board’s findings — including
its findings of unfair labor practices that persisted after the election
— are supported by substantial evidence in the record, and therefore
warrant deference from this court. See id. at 428.
The first requirement for imposing a Gissel order is that the Board
find that the Union enjoyed a pre-election majority in the relevant
unit. Evergreen argues that the Board wrongly rejected its challenge
to six authorization cards and that Evergreen did not in fact have a
pre-election majority. Evergreen stated (1) that none of the six signers
testified nor did any who witnessed their signatures testify, and (2)
that no one testified that these employees returned cards directly to a
solicitor, or acknowledged signing the cards. Evergreen believes that
one of these two forms of evidence is required to authenticate these
cards.
The Board found that, on June 15, 2002, the Union possessed
signed authorization cards from 62 of the 115 unit employees. Ever-
green challenges six cards: those signed by employees Michael Bis-
cocho, Katelin Li, Virginia Huang, Marina Peda, Michael Kelly, and
Paresha Shah. Since fifty-six cards are uncontested, the Board’s find-
ing of majority status must be upheld if it properly counted any two
contested cards.
The Board found that the Biscocho and Li cards were valid on the
basis of the credited testimony of Union President Robert Levy. At
a meeting on April 15, 2002, Levy distributed authorization cards to
employees and, at the end of that meeting, six to ten employees
returned signed cards. He specifically identified the signed cards of
Biscocho and Li as among those returned to him. "It is well settled
that absent exceptional circumstances, the ALJ’s credibility findings,
‘when adopted by the Board are to be accepted by the [reviewing]
court.’" NLRB v. Air Prods. & Chems., Inc., 717 F.2d 141, 145 (4th
Cir. 1983) (citation omitted).
12 EVERGREEN AMERICA CORP. v. NLRB
Contrary to Evergreen’s contention, neither Levy’s failure to wit-
ness the signing of the cards nor his lack of personal acquaintance
with Biscocho or Li precludes his authentication of their cards. The
Board has long held that it will accept as authentic any authorization
card returned by the signer to the solicitor. See McEwen Mfg. Co., 172
NLRB 990, 992, 993 (1968) (cards of Palk and Black), enforced sub
nom. Clothing Workers v. NLRB, 419 F.2d 1207, 1209 (D.C. Cir.
1969). Accord NLRB v. Gen. Wood Preserving Co., 905 F.2d 803,
812 (4th Cir. 1990). This is true even when the solicitor is confused
about who returned the cards. See Photo Drive Up, 267 NLRB 329,
363 (1983) (Sweeney card); Stride Rite Corp., 228 NLRB 224, 235
(1977) (cards of Jones and Michel). We find that the cards of Bis-
cocho and Li were properly counted.
The other four contested cards were solicited by employee Maria
Magbanua, who gave each employee a card in an envelope. All four
employees returned the envelopes to her a few minutes later, saying
"here." (J.A. 60-61, 63-68.) Magbanua did not open the envelopes,
but gave them to her husband, employee Paolo Magbanua, who
opened them and found signed authorization cards, which he passed
on to the Union’s leading employee organizer. (J.A. 63, 66, 96-98,
103-04.)
The Board found (J.A. 1132, 1145) that these cards were valid
under a "chain of custody" theory. The short time between the distri-
bution of the cards in envelopes and their return in the same enve-
lopes, along with the employees’ comment "here," strongly suggested
to the Board that the employees had signed the cards and were return-
ing them to the solicitor. When Paolo Magbanua opened the enve-
lopes, he found signed cards in them. We believe this strengthens the
inference that the signed cards had been in the envelopes when they
were returned to Magbanua. In addition, Huang had asked for a card
and said she wanted to join the Union, Peda had called Maria and said
she wanted to join the Union, and Kelly and Shah had said they
wanted union representation in telephone conversations with the Mag-
banuas. The Board was warranted in concluding that their cards were
like the one, solicited by one brother and returned to another, which
was found valid in Sheraton Hotel Waterbury, 312 NLRB 304, 346
(1993), enforcement of bargaining order denied on other grounds, 31
EVERGREEN AMERICA CORP. v. NLRB 13
F.3d 79, 83-85 (2d Cir. 1994). Accordingly, these four cards were
properly counted.
Having affirmed the Board’s determination that Evergreen commit-
ted numerous labor practice violations, we hold that the second
requirement for imposing a Gissel order, that the Board find the
employer committed an unfair labor practice, is satisfied. In fact,
Evergreen’s violations were some of the worse in magnitude and fre-
quency. The Board found that Evergreen violated the Act by unlaw-
fully interrogating employees on thirteen occasions; soliciting
employee grievances and implicitly promising to remedy them on fif-
teen occasions; explicitly making the same promise on eight occa-
sions; threatening reprisals on nine occasions; twice instructing
employees not to attend union meetings and to throw away union lit-
erature without reading them; and once creating the impression those
employees’ union activities were under surveillance. The violations in
Overnite pale in comparison. The Board further found that Evergreen
violated Sections 8(a)(3) and (1) of the Act by granting large and
unprecedented across-the-board wage increases to bargaining-unit
employees, and promoting an unprecedented number of such employ-
ees prior to the election, and by granting eight other benefits, before
and after the election, to dissuade the employees from supporting the
Union.
The other Gissel requirements are also met. The Board found that
the Union had a majority of sixty-two but lost by a ballot count of
sixty-one to fifty-two. The Board concluded that the Union’s majority
status dissipated as a result of Evergreen’s unfair labor practices (i.e.,
unprecedented wage increases, unprecedented promotions, promises
to correct grievances, and the new and improved benefits).
Thus, like in Overnite, the Board did not err in analyzing the first
three Gissel factors. In contrast to Overnite, however, the Board here
also carefully explained, considering the required factors, "why the
possibility of conducting a fair election would be slight and that
employees’ pre-violation sentiments would be better protected by a
bargaining order." Overnite, 280 F.3d at 436. First, the Board found
that the possibility of conducting a fair reelection would be slight
because of the lasting and pervasive effect of Evergreen’s unfair labor
violations, many of which were committed by high management offi-
14 EVERGREEN AMERICA CORP. v. NLRB
cials, and the benefits provided to employees could not be undone.
The Board relied on the dozens of pre- and post-election violations
noted, all of which are supported by substantial evidence. Cf. Over-
nite, 280 F.3d at 435, 436 (rejecting the Board’s reasoning because
"its assessment rested almost entirely on its conclusion that the [post-
election] wage increase violated § 8(a) of the Act," a finding that was
not supported by substantial evidence). Further, in Overnite, an
important reason for our decision to deny the Board’s grant of a bar-
gaining order was evidence in the record that the management team
responsible for the labor practice violations had left the company.
However, here there is no evidence in the record that there has been
a change in the management team responsible for Evergreen’s labor
practice violations.
Also, the Board found it significant that Evergreen did not desist
in its unlawful conduct even after the Union lost the election. Ever-
green committed five additional violations after the election by pro-
viding additional benefits to employees, "such post election action
demonstrates [Evergreen’s] continuing propensity to violate the
[National Labor Relations Board Act] and indicates that the coercive
effects of its unlawful conduct are likely to linger, making it highly
unlikely that a free fair election can be held." (J.A. 1134.) Thus, the
Board properly concluded the employees’ pre-election sentiments
would be better protected by a bargaining order than by a new elec-
tion.
The Board also made explicit findings that employee turnover and
the passage of time did not make a reelection an appropriate remedy.
In Overnite, another important reason for our decision to overturn the
Board’s bargaining order was evidence that employee turnover had
been substantial in the effected bargaining units. However, here the
Board found that Evergreen while asserting that it had added 100
employees between 2002 and 2004, "did not indicate how many, if
any, of these 100 new employees were additions to the bargaining
unit that was subjected to Evergreen’s numerous and serious unfair
labor practices." (J.A. 1135.) Furthermore, the Board found that Ever-
green did not present any evidence of the number of employees who
were in the unit during the commission of the unfair labor practices
and had since departed from the unit. Thus, Evergreen did not show
a "danger that a bargaining order that is intended to vindicate the
EVERGREEN AMERICA CORP. v. NLRB 15
rights of past employees will infringe upon the rights of current ones
to decide whether they wish to be represented by a union." Flamingo
Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1170-71 (D.C. Cir. 1998).
With regard to the passage of time, the Board found that four years
had passed since the commission of Evergreen’s unfair labor prac-
tices, and more than one year since the date of the ALJ’s decision.
The Board concluded that the passage of time since Evergreen’s vio-
lations did not make the Gissel order unacceptable, and the Board
specifically noted that courts had enforced bargaining orders involv-
ing comparable time periods. Furthermore, the passage of time since
the violations occurred until when the Board issued the bargaining
order (four years) is significantly less than the same time period in
Overnite (six years).2 Based on the Board’s careful and detailed rea-
soning, which is supported by substantial evidence in the record, we
defer to its findings and conclusions.
IV.
For the foregoing reasons, we enforce the bargaining order.
PETITION FOR REVIEW DENIED;
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
DUNCAN, Circuit Judge, concurring in part and dissenting in part:
"Because an election, not a bargaining order, remains the tradi-
tional, as well as the preferred, method for determining the bargaining
agent for employees, the extraordinary and drastic remedy of forced
bargaining . . . is reserved for only the most unusual cases." So held
this court in an en banc ruling just six years ago, in rejecting the
NLRB’s attempt to impose a bargaining order to remedy an employ-
er’s across-the-board wage increase granted just before a union-
representation election. See Overnite Transp. Co. v. NLRB, 280 F.3d
2
It should also be noted that the bargaining order was issued following
the issuance of an injunction by the federal district court in New Jersey,
ordering Evergreen to recognize and bargain with the Union. Our order
essentially helps to maintain those obligations. Kendellen v. Evergreen
America Corp., 428 F.Supp.2d 243 (D.N.J. 2006).
16 EVERGREEN AMERICA CORP. v. NLRB
417, 436 (4th Cir. 2002) (en banc) (internal citations and quotations
omitted). Because neither the majority nor the Board has adequately
explained why the labor violations here, arguably less egregious than
those in Overnite, make this among "the most unusual cases" warrant-
ing "the extraordinary and drastic remedy of forced bargaining," id.,
I respectfully dissent from Part III of the majority’s opinion.
I.
I begin, as I must, with our controlling precedent in Overnite. Fac-
ing a Teamsters campaign to unionize several of its trucking service
centers, Overnite Transportation Company ("Overnite") responded by
granting a supplemental and sizeable national pay increase,
announced just one month after the company’s regularly scheduled
annual wage increase and implemented while dozens of union elec-
tions were pending. Overnite trumpeted the supplemental wage
increase in a letter to all employees and in its newsletter but explained
that employees at recently unionized service centers were ineligible
for the increase because unilateral benevolence by Overnite was pro-
hibited without prior union approbation. In subsequent litigation, the
Board found that Overnite’s actions violated the NLRA. Relying on
the severity of the violations and the fact that they were carried out
by high-ranking company officers, the Board concluded that the tradi-
tional remedy of ordering new elections was insufficient to protect
Overnite’s employees, instead imposing a "Gissel Category II" order1
requiring Overnite to recognize the Teamsters as the bargaining repre-
sentative for the employees.
1
The Supreme Court first announced the availability of this remedy in
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). A forced bargaining
order under Gissel requires an employer to recognize and negotiate with
a union, as representative of the employees in question, despite the fact
that the union did not prevail in a free election. A Gissel order may be
imposed in those cases "marked by ‘outrageous’ and ‘pervasive’ unfair
labor practices" ("Category I" cases), or in "less extraordinary cases
marked by less pervasive practices which nonetheless still have the ten-
dency to undermine majority strength and impede the election processes"
("Category II" cases). Id. at 613-14. There is no dispute that the order
imposed here fell under Category II.
EVERGREEN AMERICA CORP. v. NLRB 17
On petition for review, this court unanimously agreed with the
Board that Overnite’s actions were intended to improperly influence
union elections, in violation of the NLRA. See Overnite, 280 F.3d at
428. A majority of this court disagreed with the Board, however, as
to the appropriate remedy for Overnite’s NLRA violations. Id. at 428-
29.
Drawing on long-standing circuit precedent, the Overnite court
explained that the Board cannot impose a Category II Gissel order
without first making "detailed findings specifically supporting [inter
alia] the facts that . . . the possibility of conducting a fair reelection
would be slight; and . . . the employees’ preelection sentiments would
be better protected by a bargaining order than by a new election." Id.
at 436. The court explained that a Gissel order is inappropriate unless
the Board finds that the unlawful conduct is likely to recur, or its
effects likely to persist without being dissipated by time, thereby ren-
dering ordinary remedies ineffective. Id. Applying these rules to
Overnite’s violations, this court concluded that the Board had
"spoke[n] only in a conclusory manner" and had not "direct[ed] the
court to any factually based reason why new elections could not be
fair" some six years after Overnite’s last NLRA violation. Id.2
I would conclude here, like this court did in Overnite, that the
Board failed to demonstrate with "scrupulous specificity" why a new
election would not be fair and why the employees’ representational
desires would be better protected by the "drastic remedy of forced bar-
gaining."3 Id. at 436, 438. As in Overnite, Evergreen’s primary NLRA
violation was awarding a widespread wage increase against the back-
drop of pending union elections. Furthermore, there is scant evidence
that Evergreen persisted in violating the NLRA after the 2002 elec-
tions, just as the Board in Overnite could not there point to ongoing
2
The Overnite court also pointed to employee and management turn-
over as additional evidence that new elections could be fair. 280 F.3d at
437.
3
These failings are those of the Board, not the majority. It is therefore
the Board on remand, and not the majority by post-hoc rationalization,
that should remedy the deficiencies by either offering adequate support
for the levying of a bargaining order or by imposing less draconian pen-
alties upon Evergreen.
18 EVERGREEN AMERICA CORP. v. NLRB
violations. In fact, an Evergreen wage increase awarded in 2003 was
found to be proper in a separate proceeding. Since this full court
found a bargaining order inappropriate in Overnite, I cannot see how,
on the comparable or less egregious violations before us, a bargaining
order is warranted.4
The Board (and the majority, by deferring to the Board), however,
makes much of the minor grants of benefits Evergreen implemented
in the months following the 2002 election. See Majority Op. at 8-9,
12-14. The Board reasoned that, since Evergreen became aware of
some of these grievances through solicitation just before the election,
its remedying the grievances in the months after the election "fortif-
[ied] the impression in the minds of employees that the benefit grants
were designed to dissuade them from supporting the Union." Ever-
green Am. Corp., 348 N.L.R.B. No. 12, at 3 (2006). The Overnite
4
The majority’s assertion that the violations in Overnite "pale in com-
parison" to those here mischaracterizes the scope of the violations in
Overnite. See Majority Op. at 13. Fairly read, the record before us
reveals that the wage increase at issue in Overnite was decidedly more
inappropriate than that here. The majority neglects to acknowledge that,
in Overnite, the timing of the wage increase, not just the scope, was
found to be improper. See Overnite, 280 F.3d at 429. Furthermore, the
majority’s listing of other violations that were found here ignores the fact
that similar or worse violations were found in Overnite. See Overnite
Transp. Co., 329 N.L.R.B. No. 91, at 5 (1999) (destruction of pro-union
literature, express promises of benefits, solicitations of employee griev-
ances, and threats of plant closure and loss of jobs if the union pre-
vailed). Indeed, in Overnite, the other violations were so rampant that the
parties entered into a settlement agreement to resolve many of them
before the case ever reached the Board. See id. at 2.
Nor do the violations here rise to the level of those previously found
by this court to warrant imposition of a Gissel Category II bargaining
order. See, e.g., NLRB v. CWI of Maryland, Inc., 127 F.3d 319 (4th Cir.
1997) (enforcing bargaining order where employer constructively dis-
charged all bargaining unit employees); NLRB v. So-Lo Foods, Inc., 985
F.2d 123 (4th Cir. 1992) (enforcing bargaining order where employer
threatened to close its stores if the union were elected); NLRB v. Maids-
ville Coal Co., Inc., 718 F.2d 658 (4th Cir. 1983) (enforcing bargaining
order where employer discharged four union supporters for their union
activities and interrogated employees regarding their union sympathies).
EVERGREEN AMERICA CORP. v. NLRB 19
court disallowed the Board a similar inference, and I would find it
unreasonable here as well.5 Absent evidence demonstrating that these
benefits, of such moment as a relaxation of the dress code and an
expansion of the guest list for the Christmas party, were awarded with
the intention of interfering with union activities or elections, the bene-
fit grants alone simply do not support the inference that a new elec-
tion could not be fair. To allow the Board to infer that post-election
grants of benefits render a hypothetical, unscheduled future election
unfair would seem to lock employers and employees into maintaining
the status quo after an election, even when the union lost the election.
See Overnite, 280 F.3d at 430-31 (finding proper a wage increase that
was awarded after the majority of elections had already been held).6
The Board also failed to make the detailed findings, required by
Overnite before a bargaining order can be imposed, that the signifi-
cant lapse of time since the violations had not made practicable a
new, fair election. Rather, the Board summarily concluded, "In these
circumstances, we do not consider the passage of time since [Ever-
green’s] violations unacceptable for Gissel purposes." Evergreen Am.
Corp., 348 N.L.R.B. No. 12, at 5. This conclusion improperly implies
that Gissel orders are the default or preferred remedy, not an "extraor-
5
After the initial national wage increase, Overnite granted another
wage increase the following year. Because the second increase was
offered to all employees and post-dated the fervent union campaign of
the prior year, this court rejected the Board’s conclusions that this post-
election wage increase was improper and would render new elections
unfair. See Overnite, 280 F.3d at 430-31.
6
The majority asserts repeatedly that it is appropriate to defer to the
Board’s factual findings if they are supported by substantial evidence.
See Majority Op. at 5, 11, 14, 15. The majority conflates, however, the
Board’s factual findings regarding the existence of pre- and post-election
NLRA violations with its predicate findings, required by Overnite before
a bargaining order may be imposed, that those violations would render
a new election unfair. Put differently, that the minor post-election grants
of benefits might constitute NLRA violations does not mean that the
Board can assume that "the possibility of conducting a fair reelection
would be slight; and . . . the employees’ preelection sentiments would be
better protected by a bargaining order than by a new election." Overnite,
280 F.3d at 436. It is the Board’s finding that a new election would be
unfair that is not supported by substantial evidence.
20 EVERGREEN AMERICA CORP. v. NLRB
dinary and drastic remedy . . . reserved for only the most unusual
cases." Overnite, 280 F.3d at 436 (internal quotations omitted). The
Board’s conclusion is also in direct conflict with our reasoning in
Overnite that, "‘It strains credulity to believe that [a company’s]
unfair labor practices, such as they were, had such long lasting effects
that a fair rerun election could not have been held four years later,
much less today, some six years after the original violations
occurred.’" Id. at 437 (quoting Be-Lo Stores v. NLRB, 126 F.3d 268,
282 (4th Cir. 1997)). Here, too, six years have passed since the initial
elections,7 and the Board’s conclusory brush-off of the aging of Ever-
green’s sins cannot be a "specific[] . . . detailed finding[]" sufficient
to overcome our preference for new elections. Id. at 436.
Finally, the Board hardly passed on "the efficacy of ordinary reme-
dies," id., such as new elections, at all, aside from a single conclusory
sentence. See Evergreen Am. Corp., 348 N.L.R.B. No. 12, at 5 ("[W]e
find that the employees’ representational desires . . . would be better
protected by a bargaining order than by traditional or special reme-
dies."). But democratic elections form the bedrock of our labor sys-
tem for good reason:
[B]ecause circumstances . . . may change during the interval
between the occurrence of the employer’s unfair labor prac-
tices and the Board’s disposition of a case, there is an obvi-
ous danger that a bargaining order that is intended to
vindicate the rights of past employees will infringe upon the
rights of the current ones to decide whether they wish to be
represented by a union.
Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1170-71 (D.C.
Cir. 1998) (internal quotations and alterations omitted). I find no justi-
fication in the Board’s order for abandoning the presumption that a
7
The majority asserts that six years passed between the original viola-
tions in Overnite and the issuance of the Board’s order. See Majority Op.
at 15. This is simply inaccurate. In Overnite, the Board’s 1999 order fol-
lowed the 1995 violations by four years. This timespan is relevant
because it parallels the relevant span here: four years from violations to
Board order, and six years from violations to the opinion of this court.
EVERGREEN AMERICA CORP. v. NLRB 21
new Board-monitored, free election can adequately capture the
desires of Evergreen’s current workforce.8
II.
At bottom, I view this case as falling squarely under our recent en
banc precedent in Overnite. I would likewise hold, then, that "[b]y
declining to follow our long-standing precedents for the application
of Gissel, the Board improperly bypassed the employees’ will on the
question of representation, frustrating the fundamental policy of
employee democracy established by Congress in the labor laws." Id.
at 422. I would accordingly grant in part Evergreen’s petition for
review, deny the cross-application for enforcement, and remand for
new elections.
8
Contrary to the majority’s assertion, our granting the petition for
review would not upset any permanent "obligations" of Evergreen to the
union. See Majority Op. at 15 n.2. The temporary injunction issued in
2006 by the United States District Court for the District of New Jersey,
Kendellen v. Evergreen Am. Corp., 428 F. Supp. 2d 243 (D.N.J. 2006),
provided the union only temporary relief "pending the Board’s resolution
of [the] unfair labor practice proceedings." Id. at 245. The Board having
since issued its order, the Kendellen injunction no longer governs Ever-
green’s relationship with the union, and certainly would present no bar
to this court finding that the Board erred by imposing a bargaining order.