Narricot Industries v. National Labor Relations Board

Certiorari dismissed, September 16, 2010

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NARRICOT INDUSTRIES, L.P., 

Petitioner,

v.

NATIONAL LABOR RELATIONS



BOARD,

No. 09-1164

Respondent.

SHIRLEY MAE LEWIS; HENRY

VAUGHAN,

Intervenors.



NATIONAL LABOR RELATIONS 

BOARD,

Petitioner,

v.



NARRICOT INDUSTRIES, L.P.,

No. 09-1280

Respondent.

SHIRLEY MAE LEWIS; HENRY

VAUGHAN,

Intervenors.



2 NARRICOT INDUSTRIES v. NLRB

On Petition for Review and Cross-application for

Enforcement of an Order of the

National Labor Relations Board.

(11-CA-21827; 11-CA-21828; 11-CA-21856)

Argued: September 23, 2009

Decided: November 20, 2009

Before KING and AGEE, Circuit Judges, and James P.

JONES, Chief United States District Judge for the Western

District of Virginia, sitting by designation.

Petition for review denied and cross-application for enforce-

ment granted by published opinion. Judge King wrote the

opinion, in which Judge Agee and Judge Jones joined.

COUNSEL

ARGUED: James Marion Powell, WOMBLE, CARLYLE,

SANDRIDGE & RICE, PLLC, Greensboro, North Carolina,

for Narricot Industries, L.P. William L. Messenger,

NATIONAL RIGHT TO WORK LEGAL FOUNDATION,

Springfield, Virginia, for Intervenors. Kellie Isbell,

NATIONAL LABOR RELATIONS BOARD, Washington,

D.C., for the National Labor Relations Board. ON BRIEF: J.

Mark Sampson, WOMBLE, CARLYLE, SANDRIDGE &

RICE, PLLC, Greensboro, North Carolina, for Narricot Indus-

tries, L.P. Ronald Meisburg, General Counsel, John E. Hig-

gins, Jr., Deputy General Counsel, John H. Ferguson,

Associate General Counsel, Linda Dreeben, Deputy Associate

General Counsel, Meredith L. Jason, Supervisory Attorney,

NATIONAL LABOR RELATIONS BOARD, Washington,

D.C., for the National Labor Relations Board.

NARRICOT INDUSTRIES v. NLRB 3

OPINION

KING, Circuit Judge:

Narricot Industries, L.P. ("Narricot"), petitions this Court

for review of a Decision and Order entered against it by the

National Labor Relations Board (the "Board"). See Narricot

Indus., L.P., 353 N.L.R.B. No. 82 (Jan. 30, 2009) (the "Board

Decision"). The Board Decision affirmed, with modification,

the rulings made by an administrative law judge (the "ALJ")

in a decision (the "ALJ Decision") that is attached to the

Board Decision. The Board has cross-applied in this Court for

enforcement of the Board Decision. This matter presents two

issues for our consideration: (1) whether the Board Decision

was properly issued by a two-member quorum and, if so, (2)

whether the Board Decision deserves enforcement on the mer-

its. Because, as explained below, we answer both of those

questions in the affirmative, we deny Narricot’s petition for

review and grant the Board’s cross-application for enforce-

ment.

I.

A.

Narricot, a Georgia corporation, is engaged in the business

of manufacturing and dyeing narrow textile fabrics used to

construct vehicle seatbelts.1 Narricot has maintained a manu-

facturing facility in Boykins, Virginia, since the early 1960s,

and the United Brotherhood of Carpenters and Joiners of

America, Carpenters Industrial Council, Local No. 2316 (the

"Union"), has represented the production and maintenance

employees at the Boykins facility since 1976. The most recent

collective bargaining agreement ("CBA") covering the

Boykins bargaining unit employees was executed in February

1

The facts spelled out herein are largely drawn from the Board Decision

and the attached ALJ Decision.

4 NARRICOT INDUSTRIES v. NLRB

2005 and remained in effect until October 2, 2007. By agree-

ment of the Union and Narricot, the Union’s representation of

the production and maintenance employees was extended to

also cover employees who work at Narricot’s satellite facility

in Murfreesboro, North Carolina. Although the most recent

CBA did not provide for a wage increase, it provided for a

"double-time" overtime premium for working in excess of

forty-eight hours in a week.

The International Textile Group ("ITG"), a textile group

that owns various (mostly nonunion) textile plants throughout

the world, acquired the Boykins and Murfreesboro facilities in

early 2007. After learning of the acquisition, the Union met

with ITG representatives. By letter dated July 20, 2007, the

Union notified Narricot that it desired to negotiate a new or

modified CBA and proposed dates for the parties’ negotia-

tions. Bargaining sessions were conducted on July 30, August

28, September 19 and 20, and September 26, 2007. Union

representative Jason Weitzel believed, based on the progress

of the negotiations, that the parties could have reached an

agreement during the next scheduled bargaining session on

October 1, 2007. That session never occurred, however, due

to Narricot’s withdrawal of recognition from the Union on

September 29, 2007, effective October 2, 2007 (the termina-

tion date of the parties’ last CBA).

Narricot predicated the withdrawal of recognition on its

receipt of a decertification petition signed by a majority of

bargaining unit employees. As of October 1, 2007, there were

approximately 329 bargaining unit employees — about 15 at

the Murfreesboro facility, and the rest at the Boykins facility.

The decertification petition was signed by 212, or 64%, of the

bargaining unit employees. Following its withdrawal of rec-

ognition of the Union, Narricot made a number of "unilateral"

changes, that is, it did not negotiate or bargain with the Union

prior to making them. On November 11, 2007, Narricot elimi-

nated the "double-time" overtime premium provided for in the

last CBA and implemented the first employee wage increase

NARRICOT INDUSTRIES v. NLRB 5

in four years. In addition, effective January 1, 2008, Narricot

made changes to the fringe benefit programs for bargaining

unit employees.

B.

The Union filed various unfair labor practice charges

against Narricot in October 2007 and January 2008, and the

Board issued a consolidated complaint and notice of hearing

in February 2008. The consolidated complaint alleged the fol-

lowing: that Narricot violated § 8(a)(1) of the National Labor

Relations Act (the "Act"), 29 U.S.C. § 158(a)(1), by promis-

ing employees increased benefits if they removed the Union

as their bargaining representative; that Narricot further contra-

vened § 8(a)(1) by soliciting employees to sign the decertifi-

cation petition, by providing unlawful assistance to employees

in the circulation of the petition, and by soliciting employees

to separately withdraw from Union membership and revoke

dues checkoff authorizations; and that Narricot violated

§ 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), by withdrawing

recognition from the Union and by thereafter unilaterally

implementing changes in wages, benefits, and other condi-

tions of employment for the bargaining unit employees.

In late February 2008, the ALJ conducted a three-day trial

on the consolidated complaint. By the ALJ Decision of May

6, 2008, the ALJ concluded that Narricot had engaged in mul-

tiple unfair labor practices, and recommended an Order

requiring Narricot to, inter alia, cease and desist from such

practices (including its refusal to recognize and bargain with

the Union) and to rescind all unilateral changes to unit

employees’ wages and other conditions of employment. Nar-

ricot filed exceptions to the ALJ Decision, and the parties

submitted briefs to the Board.

By the Board Decision of January 30, 2009, the Board, act-

ing through a two-member quorum, affirmed, with modifica-

6 NARRICOT INDUSTRIES v. NLRB

tion, the ALJ Decision, and it adopted, also with modification,

the recommended Order. The Board explained that it

has considered the decision and the record in light of

the exceptions and briefs and has decided to affirm

the judge’s rulings, findings, and conclusions, as

modified herein, and to adopt the recommended

Order as modified. As discussed below, we agree

with the judge that [Narricot] violated Section

8(a)(5) of the Act by withdrawing recognition from

the Union and that an affirmative bargaining order is

the appropriate remedy for this violation.

Board Decision 1 (footnotes omitted). The Board also specifi-

cally affirmed the ALJ’s ruling that Narricot contravened

§ 8(a)(1) "by soliciting employees to resign their union mem-

bership and to revoke their dues checkoff authorizations." Id.

at 1 n.4. Narricot subsequently petitioned this Court for

review of the Board Decision, and the Board cross-applied for

enforcement thereof. We then granted a motion to intervene

made by Shirley Mae Lewis and Henry Vaughan (the "Inter-

venors"), bargaining unit employees who had supported the

decertification petition effort. We possess jurisdiction pursu-

ant to § 10(e) and (f) of the Act, 29 U.S.C. § 160(e)-(f).

II.

A.

The first question before us is whether the Board Decision

was properly issued by a two-member quorum. As explained

in the Board Decision,

[e]ffective midnight December 28, 2007, Members

Liebman, Schaumber, Kirsanow, and Walsh dele-

gated to Members Liebman, Schaumber, and Kirsa-

now, as a three-member group, all of the Board’s

powers in anticipation of the expiration of the terms

NARRICOT INDUSTRIES v. NLRB 7

of Members Kirsanow and Walsh on December 31,

2007. Pursuant to this delegation, Chairman Lieb-

man and Member Schaumber constitute a quorum of

the three-member group. As a quorum, they have the

authority to issue decisions and orders in unfair labor

practice and representation cases. See Sec. 3(b) of

the Act.

Board Decision 1 n.2.2 The quorum question is one of statu-

tory interpretation of § 3(b) of the Act, 29 U.S.C. § 153(b). In

reviewing an agency’s interpretation of a statute, we first

determine whether the statute is ambiguous or, instead,

whether "Congress has directly spoken to the precise question

at issue." Snell Island SNF LLC v. NLRB, 568 F.3d 410, 415

(2d Cir. 2009) (citing Chevron U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837 (1984)). Accordingly, we

begin our analysis with the text of the statute.

Under § 3(a) of the Act, the Board consists of five mem-

bers, who serve staggered, five-year terms. See 29 U.S.C.

§ 153(a). Section 3(b) provides that

[t]he Board is authorized to delegate to any group of

three or more members any or all of the powers

which it may itself exercise. . . . A vacancy in the

Board shall not impair the right of the remaining

members to exercise all of the powers of the Board,

and three members of the Board shall, at all times,

constitute a quorum of the Board, except that two

members shall constitute a quorum of any group des-

ignated pursuant to the first sentence hereof.

Id. § 153(b). Thus, § 3(b) contains three provisions that are

pertinent here: (1) a "delegation" provision, allowing the

2

Since January 1, 2008, the same two-member quorum has issued more

than 400 decisions, as well as numerous unpublished orders, in unfair

labor practice and representation cases.

8 NARRICOT INDUSTRIES v. NLRB

Board to delegate "any or all" of its powers to a three-member

group; (2) a "vacancy" provision, providing that a vacancy in

the Board "shall not impair" the authority of the remaining

Board members to act; and (3) a "quorum" provision, provid-

ing that three members constitute a quorum of the Board, but

with an exception providing that two Board members consti-

tute a quorum of any group designated pursuant to the "dele-

gation" provision.

In this case, four members of the Board delegated all of the

Board’s authority, consistent with § 3(b)’s "delegation" provi-

sion, to a three-member group in December 2007. When the

term of one of those three members expired, the remaining

two members constituted a quorum of the three-member

group, empowered to act with all of the Board’s powers in

light of the "vacancy" and "quorum" provisions. Under the

plain and unambiguous text of § 3(b), therefore, the desig-

nated three-member group was empowered to act with a two-

member quorum. Two of our sister courts of appeals have

recently reached the same conclusion, as did the Department

of Justice’s Office of Legal Counsel in a written opinion on

which the Board relied. See New Process Steel, L.P. v. NLRB,

564 F.3d 840, 846 (7th Cir. 2009) ("The plain meaning of the

statute . . . supports the NLRB’s delegation procedure."); Ne.

Land Servs., Ltd. v. NLRB, 560 F.3d 36, 41 (1st Cir. 2009);

Quorum Requirements, Memorandum from M. Edward Whe-

lan III, Principal Deputy Assistant Attorney Gen., Office of

Legal Counsel (Mar. 4, 2003), available at 2003 WL

24166831.

The D.C. Circuit has reached a contrary conclusion, read-

ing § 3(b) as creating distinct quorum requirements for the

Board and designated three-member groups. See Laurel Baye

Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 472-

73 (D.C. Cir. 2009). That court thus concluded that the phrase

"except that" is "present in the statute only to indicate that the

delegee group’s ability to act is measured by a different

numerical value." Id. at 472. In the court’s view, the Board

NARRICOT INDUSTRIES v. NLRB 9

quorum requirement of three members "must be satisfied ‘at

all times,’" regardless of whether the Board’s authority is del-

egated to a group of its members. Id. (quoting 29 U.S.C.

§ 153(b)). We disagree with this view, concluding that it is

based on an overly narrow construction of the modifying

phrase that directly follows the three-member quorum

requirement: "except that two members shall constitute a quo-

rum of any group designated pursuant to [the delegation pro-

vision]." 29 U.S.C. § 153(b) (emphasis added). The statutory

phrase "except that" ordinarily introduces an exception. Had

Congress desired to write the statute as the D.C. Circuit reads

it, it would have simply omitted the words "except that" from

§ 3(b). The statute would then contain two independent quo-

rum clauses, one applicable to the Board and the other to

three-member groups. As it is, however, § 3(b) contains a

quorum requirement applicable "at all times," except where

the Board has delegated its authority to a three-member

group. Because the Board made such a delegation in this case,

we see the D.C. Circuit’s reading of the statute as unpersuasive.3

We also reject Narricot’s contention that "the ‘group of

3

The Second Circuit recently concluded, based on the difference in

opinion among the courts of appeals, that § 3(b) "is ambiguous regarding

the enduring or residual powers of an NLRB panel once the Board has lost

a quorum." Snell Island, 568 F.3d at 420. Concluding that neither the can-

ons of statutory construction nor the legislative history resolved the

ambiguity, the court applied Chevron deference to the Board’s interpreta-

tion of § 3(b) and determined that it was reasonable. See id. at 423-24.

Accordingly, the Second Circuit "h[e]ld that the NLRB panel in this case

was a lawfully convened panel of three members," which "continued to

operate in accordance with section 3(b) of the Act after one of its members

ceased to serve on the Board and even though the Board itself lost a quo-

rum." Id. at 424. Because we, like the First and Seventh Circuits, conclude

that the statute is unambiguous, we need not determine the level of defer-

ence that should be accorded to the Board’s interpretation of the statute.

Finally, we note that the Solicitor General has recently petitioned the

Supreme Court for certiorari in the D.C. Circuit’s Laurel Baye case, and

did not oppose the employer’s petition for certiorari in the Seventh Cir-

cuit’s New Process Steel case.

10 NARRICOT INDUSTRIES v. NLRB

three’ created by the Board in late December 2007 automati-

cally ceased to exist" — and thus "could not transact business

through a purported two-member quorum" — "once Member

Kirsanow . . . ceased being a member of the Board itself."

Reply Br. of Pet’r 26. Narricot’s theory is inconsistent with

two provisions of § 3(b). First, Narricot’s reading of § 3(b)

would turn the two-member quorum provision on its head. If

the loss of one member of a three-member group automati-

cally caused the group to cease to exist, then a two-member

quorum would never suffice. The statute, however, expressly

provides for a three-member designated group to act with

only two members. See Photo-Sonics, Inc. v. NLRB, 678 F.2d

121, 122-23 (9th Cir. 1982) (deeming decision by two-

member quorum to be binding where one member of three-

member group resigned on day of Board decision). Moreover,

Narricot’s theory is entirely inconsistent with § 3(b)’s "va-

cancy" provision, which specifies that a "vacancy in the

Board" — or, necessarily, a three-member group acting with

the full powers of the Board — "shall not impair the right of

the remaining members to exercise all of the powers of the

Board." 29 U.S.C. § 153(b). In sum, we are satisfied that, in

the underlying proceedings, the remaining two members of

the three-member group designated by the Board were

empowered to act with the full powers of the Board.

B.

The second question before us is whether the Board Deci-

sion should be enforced on the merits. Importantly, "[t]he

function of striking [a] balance [between the conflicting inter-

ests of employers and employees] to effectuate national labor

policy is often a difficult and delicate responsibility, which

the Congress committed primarily to the [Board], subject to

limited judicial review." NLRB v. Truck Drivers Local Union

No. 449, 353 U.S. 87, 96 (1957). In enforcement proceedings

such as this, we are always obliged to defer to the Board

"where it has chosen ‘between two fairly conflicting views,

even [if we] would justifiably have made a different choice

NARRICOT INDUSTRIES v. NLRB 11

had the matter been before [us] de novo.’" Smithfield Packing

Co. v. NLRB, 510 F.3d 507, 515 (4th Cir. 2007) (quoting Uni-

versal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).

We have recognized that the Board’s legal rulings are entitled

to deference when they are "rational and consistent" with the

Act and the Board’s own precedent. NLRB v. Air Contact

Transp., Inc., 403 F.3d 206, 210 (4th Cir. 2005). Finally, we

treat the "[f]indings of fact made by an ALJ and affirmed by

the Board [as] conclusive, so long as they are ‘supported by

substantial evidence on the record considered as a whole.’"

Anheuser-Busch, Inc. v. NLRB, 338 F.3d 267, 273-74 (4th Cir.

2003) (quoting 29 U.S.C. § 160(e)). And we have character-

ized "substantial evidence" as relevant evidence that a reason-

able mind might accept as adequate to support a conclusion.

See NLRB v. Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 1262,

1269 (4th Cir. 1994).

Narricot’s petition for review and the Board’s cross-

application for enforcement present four issues: (1) whether

the Board properly concluded that Narricot provided unlawful

assistance to the decertification effort; (2) whether the Board

adequately analyzed the causal connection between Narricot’s

unlawful assistance and its withdrawal of Union recognition;

(3) whether the Board rightly determined that Narricot

improperly solicited employees to resign from the Union; and

(4) whether the remedy ordered by the Board was proper. We

assess these issues in turn.

1.

First, the Board determined that Narricot’s withdrawal of

recognition from the Union contravened § 8(a)(5) of the Act

because Narricot had engaged in unfair labor practices prohib-

ited by § 8(a)(1).4 As the Board recognized in these proceed-

4

It is an unfair labor practice under § 8(a)(1) of the Act for an employer

"to interfere with, restrain, or coerce employees in the exercise" of their

rights to organize and collectively bargain, and, under § 8(a)(5), for an

employer "to refuse to bargain collectively with the representatives of his

employees." 29 U.S.C. § 158(a)(1), (5).

12 NARRICOT INDUSTRIES v. NLRB

ings, an employer can justify its withdrawal of recognition

from an incumbent union if it proves "‘by a preponderance of

the evidence that the union had, in fact, lost majority support

at the time the employer withdrew recognition.’" Board Deci-

sion 1 (quoting Levitz Furniture Co., 333 N.L.R.B. 717, 725

(2001)). "Here," the Board observed, Narricot "relied solely

on the decertification petition as objective proof of the

Union’s actual loss of majority support." Id. However, "when

an employer engages in conduct designed to undermine sup-

port for the union and to impermissibly assist a decertification

effort," the decertification petition is considered "tainted and

will not provide the employer with a basis for withdrawing

recognition." Id. (citing SFO Good-Nite Inn, LLC, 352

N.L.R.B. 268, 270-71 (2008)).

As the Board characterized the ALJ Decision, "[t]he judge

found that [Narricot] provided unlawful assistance to the

decertification effort in violation of Section 8(a)(1) of the

Act," which "tainted the petition, invalidating it as evidence

of the Union’s loss of majority." Board Decision 1. The ALJ

therefore "concluded that [Narricot] violated Section 8(a)(5)

of the Act by withdrawing recognition based on the unlaw-

fully tainted petition." Id. The Board agreed "with this conclu-

sion based on the following evidence of unlawful assistance

in the petition effort." Id.

As detailed by the judge, both Human Resource

Manager Kris Potter and Supervisor Eric Hayes

actively participated in the decertification process.

After employee Henry Vaughan asked for informa-

tion about how to oust the Union, Potter prepared a

decertification petition, gave it to Vaughan, and told

him that about 220 signatures were needed. Potter

also gave copies of the petition to employee Shirley

Lewis and to intern Anja Baumann, directing them

to return the signed petitions to him. In addition,

after giving Baumann a list of unit employees, Potter

told her that about 200 signatures were needed on

NARRICOT INDUSTRIES v. NLRB 13

the petition. At the end of each day that she solicited

signatures, Baumann returned copies of the petition

to Potter pursuant to his instructions. According to

Baumann, Potter would express approval and tell her

that he needed more signatures. Finally, Supervisor

Hayes told employee Willie Mitchell that employees

would receive a pay raise if the Union were decerti-

fied and that Mitchell could sign a copy of the peti-

tion on the desk in Hayes’ office.

Id. at 1-2 (footnotes omitted). According to the Board, "[t]his

conduct is sufficient proof that [Narricot] officials provided

more than the permissible ‘ministerial aid’ in the initiation

and circulation of the decertification petition." Id. at 2 (foot-

note omitted).

In these circumstances, the Board found it unnecessary to

reach certain additional findings made by the ALJ. The

Board, for example, found no need to rely on the ALJ’s find-

ing that misspellings on the decertification petition indicated

that Narricot had attempted to disguise its role in the decertifi-

cation effort, or to assess the ALJ’s finding that Baumann was

acting as Narricot’s agent in the decertification effort. See

Board Decision 1 n.6, 2 n.9. Additionally, the Board specifi-

cally rejected certain findings made by the ALJ, including that

Potter made unlawful wage- and benefit-related promises to

Baumann and that supervisor Tim Beals unlawfully failed to

remove a copy of the petition from the employee break room.

Aside from these specific modifications, however, the Board

adopted the remainder of the ALJ findings. See id. at 1 (speci-

fying that the Board "decided to affirm the [ALJ’s] rulings,

findings, and conclusions, as modified herein, and to adopt

the recommended Order as modified") (footnote omitted)).

Narricot’s challenge to the Board Decision is predicated, in

part, on its contention that the ALJ findings adopted by the

Board are insufficient to establish that Narricot went beyond

providing "ministerial aid" to the decertification effort. See E.

14 NARRICOT INDUSTRIES v. NLRB

States Optical Co., 275 N.L.R.B. 371, 372 (1985) ("[W]hile

an employer does not violate the Act by rendering what has

been termed ‘ministerial aid,’ its actions must occur in a situa-

tional context free of coercive conduct." (footnote and internal

quotation marks omitted)).5 Whether conduct constitutes more

than "ministerial aid" turns on whether "the preparation, cir-

culation, and signing of the petition constituted the free and

uncoerced act of the employees concerned." Mickey’s Linen

& Towel Supply, Inc., 349 N.L.R.B. 790, 791 (2007) (internal

quotation marks omitted). Whether the employer’s conduct

was actually coercive, however, is immaterial, provided that

the particular conduct would have a "reasonable tendency in

the totality of the circumstances to intimidate." NLRB v.

Transpersonnel, Inc., 349 F.3d 175, 180 (4th Cir. 2003)

(internal quotation marks omitted). And whether "particular

conduct tends to coerce or intimidate is a question essentially

left to the specialized experience of the Board, and we must

show respect for the Board’s findings." Id.

We cannot say, in light of the record as a whole, that the

Board lacked substantial evidence to find that Narricot’s con-

5

Narricot and the Intervenors also base their challenge to the Board

Decision on the broader contention that the Board’s "ministerial aid" stan-

dard is too restrictive. They argue that some conduct that rises above the

level of "ministerial aid" may not constitute an unfair labor practice, and

that any contrary interpretation would trample on the employer free speech

rights that are codified in § 8(c) of the Act, 29 U.S.C. § 158(c), and which

the Supreme Court recently discussed in Chamber of Commerce v. Brown,

128 S. Ct. 2408, 2413-18 (2008). We are not positioned nor inclined to

take such a broad stride across several decades of settled precedent prohib-

iting employers from becoming overly entangled with union decertifica-

tion drives. First, the Board’s legal determinations are entitled to

deference, and are reviewed by this Court only to ensure that they are "ra-

tional and consistent" with the Act. See Anheuser-Busch, Inc. v. NLRB,

338 F.3d 267, 273 (4th Cir. 2003). Second, Narricot and the Intervenors

substantially understate the role of the proviso in § 8(c) explaining that

employer speech is protected only so long as it is noncoercive, i.e., lacking

any "threat of reprisal or force or promise of benefit." 29 U.S.C. § 158(c);

see Brown, 128 S. Ct. at 2413.

NARRICOT INDUSTRIES v. NLRB 15

duct in this case crossed the line beyond mere ministerial

assistance. Narricot contends that both this Court and the

Board have recognized that "[m]erely providing accurate

information upon request of the employee, even for sample

language, does not constitute conduct that would tend to

coerce or intimidate." Transpersonnel, 349 F.3d at 184; see

Bridgestone/Firestone, Inc., 337 N.L.R.B. 133 (2001) (decid-

ing that employer’s drafting of decertification petition consti-

tuted lawful ministerial aid).

The Board Decision, however, reflects that it adopted find-

ings by the ALJ that Narricot engaged in conduct extending

beyond mere ministerial aid. For example, the Board adopted

the ALJ’s finding that "both Human Resource Manager Kris

Potter and Supervisor Eric Hayes actively participated in the

decertification process." Board Decision 1. More specifically,

"[a]fter employee Henry Vaughn asked for information about

how to oust the Union, Potter prepared a decertification peti-

tion, gave it to Vaughn, and told him that about 220 signa-

tures were needed." Id. (footnote omitted). The Board also

found that Potter "gave copies of the petition to employee

Shirley Lewis and to intern Anja Baumann, directing them to

return the signed petitions to him." Id. And, without being

asked to do so, Potter gave Baumann a list of unit employees,

and told her that about 200 signatures were needed on the

petition. At the end of each day that Baumann solicited signa-

tures, she returned copies of the petition to Potter pursuant to

his instructions, at which point Potter expressed his approval

and told Baumann that more signatures were needed. In addi-

tion, the Board observed that "Supervisor Hayes told

employee Willie Mitchell that employees would receive a pay

raise if the Union were decertified and that Mitchell could

sign a copy of the petition on the desk in Hayes’ office." Id.

at 2.6

6

Narricot urges us to discredit this finding because, contrary to the

ALJ’s credibility determination, Mitchell was not credible. The Board

16 NARRICOT INDUSTRIES v. NLRB

Moreover, the ALJ’s findings of fact — which were

appended to the Board Decision and expressly affirmed by the

Board unless specifically modified, see Board Decision 1 —

provide other specific details of Potter’s conduct. For

instance, after Baumann signed the petition, Vaughan sug-

gested that Baumann speak with Potter if she were interested

in helping collect signatures. Baumann then met with Potter,

advised him she had just signed the petition, and told him that

she was interested in learning about what she had signed.

(Baumann was from Germany and did not understand how

unions function in the United States.) Potter responded that

there was a union at the facility and that it cost Narricot

money, he gave Baumann a blank copy of the petition and a

list of employee names, and he told Baumann that the CBA

was expiring in October and about 200 signatures were

needed on the petition. Baumann then solicited employee sig-

natures before, during, and after her work hours, and was paid

overtime for time spent doing so. When one employee asked

Baumann how the employee could remove her signature from

the petition, Baumann advised the employee that she would

have to talk with Potter because he had the petitions. See

Board Decision 6-7.

The Board relied on this cumulative evidence in ruling that

Narricot’s conduct exceeded mere ministerial aid. See Board

Decision 2 n.7 ("Member Schaumber does not pass on

whether the mere provision of an employee list to facilitate

the collection of signatures on a decertification petition would

constitute unlawful assistance. He finds the violation based on

the cumulative evidence cited above."). Given that the

Board’s ruling was predicated on the combined effect of Nar-

refused to disturb the ALJ’s credibility determination and to credit

Hayes’s testimony over Mitchell’s, see Board Decision 1 n.3, and we are

constrained to do the same, see WXGI, Inc. v. NLRB, 243 F.3d 833, 842

(4th Cir. 2001) (recognizing that this Court will not disturb Board’s credi-

bility findings absent "extraordinary circumstances").

NARRICOT INDUSTRIES v. NLRB 17

ricot’s conduct, we are obliged to examine the record as a

whole. Viewed in that context, the Board Decision is sup-

ported by substantial evidence, and it is rational and consis-

tent with the Act and the Board’s own precedent.

2.

Second, the Board concluded that, because the objective

value of the decertification petition was tainted by Narricot’s

unlawful participation therein, it was "unnecessary to pass on

whether the petition was tainted under the standards set forth

in Master Slack Corp., 271 N.L.R.B. 78, 84 (1984)." Board

Decision 1 n.5 (citing SFO Good-Nite Inn, 352 N.L.R.B. at

271 n.11). In Master Slack, the Board recognized that an

employer cannot rely on a decertification petition if there is

a showing that prior, unremedied unfair labor practices

caused or had a meaningful impact on employee disaffection.

See 271 N.L.R.B. at 84. "In short, there must be a causal rela-

tionship between the unlawful conduct and the [decertifica-

tion] petition . . . ." Id. (outlining four factors for determining

causation).

Narricot contends that the Board adopted an "entirely new

standard" for this case when it ignored its "longstanding

requirement of a causal connection" between the unfair labor

practices committed by the employer and the union decertifi-

cation effort. Br. of Pet’r 28. The Board asserts, however, that

it was not, in these circumstances, required to analyze causa-

tion under Master Slack, because that decision only applies

"to cases that do not primarily involve the employer’s direct

assistance or participation in the decertification effort." Br. of

Respondent 58-59 (citing cases).

In Master Slack, the Board established a rule intended to

ensure a causal link between decertification efforts and other

unfair labor practices distinct from any unlawful assistance by

the employer in the actual decertification petition. Compare

SFO Good-Nite Inn, 352 N.L.R.B. at 271 n. 11 (bypassing

18 NARRICOT INDUSTRIES v. NLRB

causation analysis where employer engaged in unlawful con-

duct connected with decertification effort), with NLRB v. Wil-

liams Enters., 50 F.3d 1280, 1288 (4th Cir. 1995) (applying

Master Slack causation test to determine if decertification

decision was tainted by "antecedent unlawful conduct").

Thus, where, as here, the unfair labor practices identified by

the Board are directly related to the decertification effort, the

Board need not make a specific causation finding under the

four-factor Master Slack test. See Glasser v. Heartland-Univ.

of Livonia, Mich., LLC, 632 F. Supp. 2d 659, 671 (E.D. Mich.

2009) (explaining Board’s precedent that SFO Good-Nite Inn

"stands independent from Master Slack" and its causation

test). Again, we must uphold the Board’s legal rulings when

they are rational and consistent with the Act. Put simply, Nar-

ricot has not demonstrated that the Board’s analysis failed to

satisfy that deferential standard. Thus, the Board did not err

in analyzing the connection between Narricot’s unfair labor

practices and the decertification petition underlying its with-

drawal of recognition from the Union.7

3.

Third, the Board also affirmed the ALJ’s ruling that Narri-

cot contravened § 8(a)(1) when it solicited employees to

resign their Union memberships and to revoke their dues

checkoff authorizations. See Board Decision 1 n.4. Narricot’s

actions were prompted by inquiries from several employees as

to how they could revoke their Union membership. In addi-

tion to preparing revocation letters for those employees, Nar-

ricot also presented the letters to the employees in such a way

7

Narricot also suggests that the Board erred in conducting its causation

analysis under Master Slack because it ignored evidence that, according

to Narricot, proves that employees were dissatisfied with the Union before

the decertification petition was circulated. Because the Board did not err

in not applying the Master Slack causation test, this contention lacks

merit. Moreover, the Board observed that it "has not found that this type

of evidence, even if considered collectively, would be sufficient as objec-

tive proof of a union’s loss of majority support." Board Decision 2.

NARRICOT INDUSTRIES v. NLRB 19

that would have tended to make them feel coerced to sign, and

then mailed the letters to the Union by certified mail at its

own expense. See id. at 10-11. Thus, the Board concluded that

Narricot’s conduct in this regard "went well beyond" "merely

preparing [revocation] letters" for the employees to sign.

Board Decision 1 n.4.8 Narricot primarily contends that the

membership resignations were initiated by the employees, and

that none of the employees were actually coerced into resign-

ing their union membership. Once again, however, the rele-

vant inquiry is not actual coercion, but whether the

employer’s conduct would have had a reasonable tendency to

intimidate in light of the totality of the circumstances. See

Transpersonnel, 349 F.3d at 184. Given the Board’s finding

that Narricot’s conduct would have tended to coerce the

employees to sign the resignation letters, we have no basis for

disturbing the Board Decision on this issue.

4.

Finally, the Board deemed an affirmative bargaining order

— with an implicit bar on further decertification efforts for a

reasonable period of time — to be the appropriate remedy.

Narricot asserts, however, that the Board’s order, "with its

double-edged sword of a decertification bar, trounces upon

[employees’] § 7 rights and forces employees to be repre-

sented by the Carpenters Union for a reasonable period of

time — even if the employees no longer want to be repre-

sented by the Carpenters Union." Br. of Pet’r 50. We have

previously recognized, however, that the Board possesses

"broad discretion to choose a remedy." Williams Enters., 50

F.3d at 1289. Thus, "[w]e must enforce its choice unless it can

8

The Board declined to reach the issue of whether merely preparing

such revocation letters constitutes unlawful assistance, see Board Decision

at 1 n.4 ("Member Schaumber does not pass on whether merely preparing

letters revoking dues-deduction authorization on behalf of employees

would be unlawful."), observing that Narricot "went well beyond such

assistance." Id.

20 NARRICOT INDUSTRIES v. NLRB

be shown that the order is a patent attempt to achieve ends

other than those which can fairly be said to effectuate the pol-

icies of the [Act]." Id. (internal quotation marks omitted). We

have also recognized that an affirmative bargaining order is

often a necessary component of the Board’s chosen remedy if

the parties are to be returned to the status quo ante. See id. at

1289-90.

In these proceedings, the Board observed that the D.C. Cir-

cuit "has required the Board to justify, on the facts of each

case, the imposition of an affirmative bargaining order."

Board Decision 2. The D.C. Circuit has required an affirma-

tive bargaining order to be justified by a reasoned analysis

and balancing of three factors: (1) the employees’ § 7 rights;

(2) whether other purposes of the Act override the rights of

employees to choose their bargaining representatives; and (3)

whether alternative remedies are adequate to remedy the vio-

lations of the Act. See Vincent Indus. Plastics, Inc. v. NLRB,

209 F.3d 727, 738 (D.C. Cir. 2000).

With respect to the first Vincent Industrial factor, the Board

explained that Narricot

committed unfair labor practices both before and

after its unlawful withdrawal of recognition that

manifested its disregard for employees’ Section 7

rights. Prior to the withdrawal of recognition, [Narri-

cot] solicited employees to withdraw from union

membership and to revoke their dues checkoff, it

provided unlawful assistance in the initiation and cir-

culation of the decertification petition, and it prom-

ised a wage increase if the Union were decertified.

After [Narricot] withdrew recognition, it followed

through on the unlawful promise by making unilat-

eral changes in wages, the employees’ 401(k) plan,

their health and welfare plans, and holidays. Under

these circumstances, it is only by restoring the status

quo ante and requiring [Narricot] to bargain with the

NARRICOT INDUSTRIES v. NLRB 21

Union for a reasonable period of time that employ-

ees’ Section 7 right to union representation can be

vindicated. This will give employees an opportunity

to fairly assess the Union’s effectiveness as a bar-

gaining representative and determine whether con-

tinued representation by the Union is in their best

interests.

Board Decision 3. In assessing the second Vincent Industrial

factor, the Board observed that an affirmative bargaining

order would serve the Act’s purposes "of fostering meaning-

ful collective bargaining and industrial peace," by removing

Narricot’s "incentive to delay bargaining or to engage in any

other conduct designed to further discourage support for the

Union," "ensur[ing] that the Union will not be pressured, by

the possibility of a decertification petition, to achieve immedi-

ate results at the bargaining table," and "reinstating the Union

to its rightful position as the bargaining representative chosen

by a majority of the employees." Id. Lastly, in considering the

third factor, the Board observed that the only alternative rem-

edy — a cease-and-desist order alone, without a temporary

decertification bar — would be inadequate, "because it would

allow another challenge to the Union’s majority status before

the employees had a reasonable time to regroup and bargain

with [Narricot] through their chosen representative in an

effort to reach a [CBA]," and because it "might very well

allow [Narricot] to profit from its own unlawful conduct." Id.

On balance, the Board concluded "that these circumstances

outweigh the temporary impact the affirmative bargaining

order will have on the rights of employees who oppose con-

tinued union representation." Id.

In view of the Board’s careful justification for its affirma-

tive bargaining order, the deference we are obliged to accord

the Board’s chosen remedy, and our prior approval of the spe-

cific remedy employed here, we are constrained to reject Nar-

ricot’s petition and leave the order undisturbed.

22 NARRICOT INDUSTRIES v. NLRB

III.

Pursuant to the foregoing, we deny Narricot’s petition for

review and grant the Board’s cross-application for enforce-

ment.

PETITION FOR REVIEW DENIED AND

CROSS-APPLICATION FOR ENFORCEMENT GRANTED