Flamingo Hilton-Laughlin v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 1998 Decided July 31, 1998

No. 97-1467

Flamingo Hilton-Laughlin,

Petitioner

v.

National Labor Relations Board,

Respondent

United Steelworkers of America, AFL-CIO CLC,

Intervenor

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Joseph E. Herman argued the cause for the petitioner.

Richard C. Hotvedt entered an appearance.

Robert J. Englehart, Attorney, National Labor Relations

Board, argued the cause for the respondent. Linda Sher,

Associate General Counsel, Aileen A. Armstrong, Deputy

Associate General Counsel, and Frederick C. Havard, Attor-

ney, National Labor Relations Board, were on brief.

Rudolph L. Milasich, Jr. argued the cause for the interve-

nor.

Before: Henderson, Rogers and Garland, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Separate concurring opinion filed by Judge Rogers.

Karen LeCraft Henderson, Circuit Judge: Petitioner

Flamingo Hilton-Laughlin (Flamingo), a subsidiary of Hilton

Gaming Corp., operates a resort hotel and casino in Laughlin,

Nevada. On July 29, 1997 the National Labor Relations

Board (NLRB, Board) issued a Gissel order 1 which directed

Flamingo to bargain with the United Steelworkers of Amer-

ica, AFL-CIO CLC, (Union) as the exclusive bargaining

representative of two units of Flamingo employees, based on

findings that Flamingo had engaged in numerous unfair labor

practices during the Union's unsuccessful organization cam-

paign. Flamingo Hilton-Laughlin, 324 N.L.R.B. No. 14

(1997). Flamingo petitions for review of the Board's decision

on the grounds that (1) the Board failed to adequately justify

issuance of a Gissel bargaining order; (2) some of the unfair

labor practices found by the Board are unsupported by

substantial evidence and (3) Flamingo was denied its due

process right to a neutral decisionmaker. The NLRB has

filed a cross-application for enforcement of its order. For the

reasons and to the extent set out below, we grant in part

Flamingo's petition for review and deny the NLRB's applica-

tion for enforcement of its Gissel order and two of its unfair

__________

1 A Gissel order is one requiring an employer to bargain with a

union and is issued "to remedy violations of section 8(a) of the

National Labor Relations Act ... if the Board finds, on balance,

that the effects of those past practices make a fair election unlike-

ly." Amazing Stores, Inc. v. NLRB, 887 F.2d 328, 329 (D.C. Cir.

1989), cert. denied, 494 U.S. 1029 (1990); see NLRB v. Gissel

Packing Co., 395 U.S. 575 (1969).

labor practice findings. We nonetheless deny review and

grant enforcement of the Board's order with respect to the

remaining unfair labor practices included therein.

I.

In January 1993 the Union began an organizing campaign

at Flamingo's hotel and casino, which, with more than 2,000

employees, is the largest of several gaming establishments in

Laughlin, Nevada. Flamingo hired a labor relations consult-

ing firm and conducted a vigorous counter-campaign. In

March 1993 the Union filed a petition to be certified as

representative of a bargaining unit comprising "[a]ll full-time

and part-time employees in the departments of Housekeep-

ing/Custodial, Food/Beverage, Slots, Coin Room Hotel Ser-

vices/Bellmen, Front Desk, Valet, and Cage." Joint Appendix

4. On June 9, 1993 the NLRB issued a "Decision and

Direction of Election," which excluded slot machine and coin

room employees from the proposed bargaining unit and

scheduled an election among the roughly 1,000 remaining unit

employees for July 6. During the union campaign the Union

had solicited and obtained union authorization cards from a

majority of the hotel unit employees and of the excluded slot

and coin room employees. In the July 6 election, however,

the hotel unit employees rejected union representation by a

vote of 495 to 389. On October 28, 1993 the Union filed an

unfair labor practice charge with the NLRB and, as a result,

on February 25, 1994 the Board's acting regional director

filed a complaint and notice of hearing alleging more than

seventy unfair labor practices.

A 67-day hearing was conducted over the course of one

year and on April 25, 1996 an administrative law judge (ALJ)

issued a decision finding Flamingo had committed more than

forty of the charged unfair labor practices, in violation of

section 8(a)(1) and (3) of the National Labor Relations Act

(Act), 29 U.S.C. ss 158(a)(1) and (3), and ordering Flamingo

to bargain with the Union as the representative of both the

designated unit and a separate unit made up of slot employ-

ees. The ALJ found Flamingo itself violated the Act by

providing various benefits to unit employees during the pre-

election period, including improved health insurance coverage,

increased wages, a more responsive grievance procedure,

higher gratuities for baggage handlers and a seniority-based

scheduling and assignment policy for cocktail servers. The

ALJ further found Flamingo had, during the same period,

unlawfully instituted a new employment application screening

process aimed at weeding out applicants with union connec-

tions. In addition to Flamingo's violations, the ALJ found

that individual Flamingo supervisors had engaged in various

unlawful acts including (1) soliciting complaints from employ-

ees (with at least implied promises to resolve them) (2)

promoting the Culinary Union, a prominent gaming industry

union, over the Union, (3) questioning employees about their

views on unionization, (4) distributing anti-Union buttons, (5)

discouraging display of pro-Union buttons, (6) warning em-

ployees that conditions of employment such as wages, insur-

ance benefits and perquisites (including free parking, food

and uniforms) would worsen if the Union won the election, (7)

suggesting that pro-Union employees would be "blacklisted"

among the other (non-union) casinos in the area and (8)

conducting meetings on the eve of the election at which

Flamingo's new president, William Sherlock, made an anti-

Union video presentation and asked employees for "[a] chance

for management to work hand in hand with [employees] and

no third party to interfere," Flamingo, slip op. at 47.

The ALJ concluded that the unfair labor practices he found

made this a "category II" Gissel case, that is, one of "the less

extraordinary cases marked by less pervasive practices which

nonetheless still have the tendency to undermine majority

strength and impede the election processes,' " Flamingo, slip

op. at 62 (quoting NLRB v. Gissel Packing Co., 395 U.S. 575,

613, 614-15 (1969)),2 based on "considerations [that] include

'the number of employees directly affected by the violation,

the size of the unit, the extent of dissemination among the

work force, and the identity of the perpetrator of the unfair

__________

2 A "category I" Gissel case involves " 'outrageous' and 'pervasive'

unfair labor practices." Gissel, 395 U.S. at 613.

labor practice,' " id. at 62 (quoting FJN Mfg., 305 N.L.R.B.

656, 657 (1991)). Specifically, he determined:

(1) "the number of employees directly affected by the

unfair labor practices was extensive" in that "[t]he health

insurance changes were shown to affect a substantial

percentage of the employees, the same was true of

hourly pay increases made, and the new complaint reso-

lution procedure had no limit at all about employee

eligibility";

(2) the large size of the unit did not weigh against a

bargaining order because "the violations blanketed both

units and did not allow the notion to be present that

many members of the units were simply not aware of the

conduct";

(3) "[t]hese first two factors are largely embodied in

the third factor, because dissemination of conduct

throughout practically the entire work force was both

intended and carried out by the employer" through

"items such as wage and benefit increases of tangible

effect on why employees were attracted to the Union in

the first place, and the inhibiting threat of blacklisting as

sprung on the entire work force by universally distribut-

ed memorandum just before the election"; and

(4) "of great significance to the question, the perpetra-

tor of the major amount of conduct was [director of

human resources John] Kosinski himself" and "[i]t is also

influential that Sherlock was a key perpetrator."

Id. at 62-63. The ALJ also stated: "On a matter separate

from 'pervasiveness' of unfair labor practice conduct, a Gissel

issue is also affected by special considerations such as the

applicant screening also devised by Kosinski," which "tainted

the bargaining units by employment screening in a manner

that cannot be reconstructed," asserting that Flamingo "must

bear the consequence of this conduct, both as to unknown

probabilities yielding a slightly biased work force to the

Union's detriment, and to the possibility that conduct this

devious invites the presumption it could readily recur." Id. at

63. Finally, the ALJ "conclude[d] the possibility of erasing

embedded effects of Respondent's unfair labor practices is so

slight that, on balance, a bargaining order is warranted for

each unit." Id.

In its July 29, 1997 decision the NLRB affirmed the ALJ

except that it (1) reversed the finding that Sherlock's last

minute plea for a "chance" was an unfair labor practice; (2)

rejected the ALJ's "discount[ing] the effects of [the] one-on-

one type threats, solicitation, or interrogation" and (3) de-

clined to "rely on the judge's analysis to the extent that he

imposed a negative connotation on Flamingo's lawful video

presentations." Id. at 1-2.

II.

Flamingo argues strenuously that the Board failed to justi-

fy ordering bargaining as a remedy. We agree.

" '[A] bargaining order is ... an "extreme remedy" that

must be applied with commensurate care.' " Skyline Dis-

tribs. v. NLRB, 99 F.3d 403, 410 (D.C. Cir. 1996) (quoting

Avecor, Inc. v. NLRB, 931 F.2d 924, 938-39 (D.C. Cir. 1991),

cert. denied, 502 U.S. 1048 (1992)) (alteration in Skyline). In

Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1078

(D.C. Cir. 1996), we again explained the circumstances that

warrant a category II Gissel order:

[W]e have insisted, and we continue to insist, that "[b]e-

fore we will enforce a category II order, we must find

that substantial evidence supports three findings," among

them the finding that the possibility of erasing the effects

of past practices and of insuring a fair rerun election by

the use of traditional remedies is slight and that employ-

ee sentiment once expressed in favor of the Union would

be better protected by a bargaining order. Avecor, 931

F.2d at 934 (quoting St. Francis Fed'n of Nurses &

Health Professionals v. NLRB, 729 F.2d 844, 854-55

(D.C. Cir. 1984)).3 We have also emphasized that that

__________

3 The other two required findings are that (1) "the Union, at some

time, must have had majority support within the bargaining unit"

and (2) "the employer's unfair labor practices must have had the

finding must be supported by a reasoned explanation

that will enable the reviewing court to determine from

the Board's opinion (1) that it gave due consideration to

the employees' section 7 rights, which are, after all, one

of the fundamental purposes of the Act, (2) why it

concluded that other purposes must override the rights

of the employees to choose their bargaining representa-

tives and (3) why other remedies, less destructive of

employees' rights, are not adequate. Peoples Gas Sys.,

[Inc. v. NLRB, 629 F.2d 35, 46 (D.C. Cir. 1980)]. See

also Somerset Welding & Steel, Inc. v. NLRB, 987 F.2d

777, 781 (D.C. Cir. 1993) (declining to enforce bargaining

order where "no reasoned justification therefor ap-

pear[ed] in the Board's order").

82 F.3d at 1078 (footnote added). In this case neither the

ALJ nor the Board made a sustainable finding that the

circumstances then existing warranted the "extreme remedy"

ordered.

The "underlying rationale" for issuing a Gissel bargaining

order is "that the employees' wishes are better gauged by an

old card majority than by a new election." Charlotte Amphi-

theater Corp., 82 F.3d at 1078. Nevertheless, because "[cir-

cumstances ... may change during the interval between the

occurrence of the employer's unfair labor practices and the

Board's disposition of a case," there is an "obvious 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." Id. "Therefore, we have repeatedly instructed

the Board to determine the appropriateness of a Gissel

bargaining order in light of the circumstances existing at the

time it is entered." Id. (citing Avecor Inc., 931 F.2d at 936-

__________

tendency to undermine majority strength and impede the election

process." Avecor, 931 F.2d at 934. The ALJ made both of these

findings, Flamingo, slip op. at 59, 62-63, and we need not evaluate

their evidentiary support now given our remand for reconsideration

of the likelihood of a fair rerun election in light of post-election

events.

37); Pedro's, Inc. v. NLRB, 652 F.2d 1005, 1012 (D.C. Cir.

1981); Peoples Gas Sys., Inc., 629 F.2d at 45-46 n.18; NLRB

v. Ship Shape Maintenance Co., 474 F.2d 434, 443 (D.C. Cir.

1972)). Yet both the Board and the ALJ ignored substantial

and undisputed changes in the hotel's operation and person-

nel in the years since the election and focused instead on

circumstances as they were in early 1993.

In his remedy discussion, the ALJ, contrary to our prece-

dent, flatly announced: "When considering a bargaining or-

der, the law compels a focus on circumstances existing at the

time unfair labor practices were committed. Thus late spring

1993 is that focus, when diverse unlawful conduct by Respon-

dent of enduring impact on employees occurred." Flamingo,

slip op. at 64. Consistently with his pronouncement, the ALJ

rested the choice of remedy on his evaluation of the alleged

unfair labor practices and their effects during the pre-election

period. See id. at 62-63. In doing so he expressly discount-

ed three factors the court has found crucial to a Gissel

inquiry: passage of time since the practices, turnover of unit

members and change in management. See Charlotte Amphi-

theater Corp., 82 F.3d at 1080 (remanding to Board with

direction to accept evidence from employer "that the passage

of time or a change in circumstances might mitigate the need

for" Gissel order); Avecor, Inc., 931 F.2d at 937 ("[W]e hold

that before issuing a category II bargaining order, the Board

must carefully consider employee turnover."); Somerset, 987

F.2d at 780 (finding no adequate justification for Gissel order

because "the Board did not adequately consider changes in

management and employee turnover at the Company since

the time of the election"); Amazing Stores v. NLRB, 887

F.2d 328, 331 (D.C. Cir. 1989) ("[W]here the practices at issue

are not especially pervasive or permanent in nature, the

Board needs to make more careful determinations respecting

the effect of subsequent employee turnover."), cert. denied,

494 U.S. 1029 (1990); Peoples Gas Sys., Inc. v. NLRB, 629

F.2d 35, 45-46 n.18 (D.C. Cir. 1980) ("This court has already

held that employee turnover, one 'subsequent event,' must be

considered in deciding whether a new election or a bargaining

order is the proper remedy.") (citing Ship Shape Mainte-

nance Co., supra ); Skyline Distribs. v. NLRB, 99 F.3d 403,

412 (D.C. Cir. 1996) (Henderson, J., concurring) ("[T]his court

has 'repeatedly instructed the Board to determine the appro-

priateness of a Gissel bargaining order in light of the circum-

stances existing at the time it is entered' to take account of,

inter alia, the passage of time, employee turnover and sensi-

tized management.") (citations omitted).4

First, regarding the passage of time, the ALJ observed

that "a span of time is always present between unfair labor

practices that arguably have such lingering effects as to make

a second election unfeasible and the point after contested

proceedings when a bargaining order is proposed" and, with-

out reference to contrary court decisions, observed all too

__________

4 Other circuits have also stressed the importance of one or more

of these factors. See, e.g., HarperCollins San Francisco, a Div. of

HarperCollins Publishers, Inc. v. NLRB, 79 F.3d 1324, 2132 (2d

Cir. 1996) ("events subsequent to the employer's violations, such as

the passage of time and the substantial turnover of employees");

NLRB v. Cell Agric. Mfg. Co., 41 F.3d 389, 398 (8th Cir. 1994)

(passage of time, employee turnover and management's "voluntary

statements of cooperation") (internal citation omitted); NLRB v.

So-Lo Foods, 985 F.2d 123, 128-29 (4th Cir. 1992) (employee

turnover); NLRB v. LaVerdiere's Enters., 933 F.2d 1045, 1054-55

(1st Cir. 1991) (passage of time); Texas Petrochemicals Corp. v.

NLRB, 923 F.2d 398, 405-06 (5th Cir. 1991) (passage of time);

M.P.C. Plating, Inc. v. NLRB, 912 F.2d 883, 888 (6th Cir. 1990)

(passage of time and employee turnover); Impact Indus. v. NLRB,

847 F.2d 379, 383 (7th Cir. 1988) (passage of time, employee

turnover and change of management); Piggly Wiggly v. NLRB, 705

F.2d 1537, 1543 n.9 (11th Cir. 1983) (changes up to time of hearing).

NLRB v. Armcor Indus., 535 F.2d 239, 246 (3d Cir. 1976) ("present

conditions"). But see NLRB v. Bakers of Paris, 929 F.2d 1427,

1448 (9th Cir. 1991) (passage of time and employee turnover are

"irrelevant to the adjudication of enforcement proceedings");

NLRB v. Wilhow Corp., 666 F.2d 1294, 1304 (10th Cir. 1981) ("In

NLRB v. Jamaica Towing Co., 632 F.2d 208, 214 (2nd Cir. 1980),

the court stated that 'employee turnover and lapse of time may ...

become major factors in close cases.' Unlike the case that is cited,

the s 8(a)(3) violations that Wilhow is guilty of do not make for the

type of close case contemplated by the Second Circuit.").

accurately that "[t]he Board has termed such passage of time

'regrettable' but 'unavoidable,' and not a sufficient basis to

deny a bargaining order." Flamingo, slip op. at 63 (citing

Quality Aluminum Prods., 278 N.L.R.B. 338, 340 (1986),

enforced, NLRB v. Quality Aluminum Products, Inc., 813

F.2d 795 (6th Cir.), cert. denied, 484 U.S. 825 (1987). Be-

cause, in his view, "[t]he very nature of this litigation would

require extensive time because of its complexity," the ALJ

stated he "d[id] not believe the time from events in 1993 to

the present should affect imposition of a bargaining order."

Flamingo, slip op. at 63. He made no specific findings

regarding the dissipating effect vel non of the passage of time

on Flamingo's unfair labor practices. The ALJ also summari-

ly dismissed Flamingo's arguments based on turnover of

personnel. Again invoking the Board's authority and ignor-

ing judicial decisions, he stated: "The Board is also uncon-

vinced that 'management turnover' affects the validity of a

bargaining order." Id. at 64 (citing Action Auto Stores, 298

N.L.R.B. 875 (1990)).5 Regarding unit members, the ALJ,

while acknowledging that turnover had reached "50 percent

as of April 1995," nonetheless declared: "Fundamentally the

Board considers evidence of such turnover to be irrelevant as

concerning factors that govern the issuance of a Gissel bar-

gaining order." Id. at 64 (citing Astro Printing Servs., 300

N.L.R.B. 1028, 1029 (1990); Waste Management of Utah, 310

N.L.R.B. 883, 883 (1993)).

In its decision, the Board failed to correct the ALJ or to

redirect the focus of the inquiry. With no mention of the

overwhelming authority from this circuit and others empha-

sizing the need to consider circumstances at the time of

remedy (and not at the time of violation), the Board adopted

the ALJ's views of the law and of the facts with little change.

Without addressing the passage of time specifically, the

Board did "highlight" two post-election circumstances noted

__________

5 Flamingo alleges that 14 of the 21 supervisors found to have

committed unfair labor practices, including Sherlock and Kosinski,

are no longer employees at the hotel. See Brief of Appellant at 24-

25 & n.4.

by the ALJ, namely that (1) although the employee screening

"began during the pre-election period," it "continued for

many months after the July 6, 1993 election" and (2) that

'corporate Hilton executives,' to whom the ALJ referred,

"were involved in the Respondent's unlawful campaign

against the Union and are still employed by the Respondent,"

including Jim Anderson, Hilton's corporate senior vice presi-

dent of labor relations and personnel administration, who "the

record shows ... played a major role in orchestrating the

Respondent's unlawful campaign against the Union" and

whose "continued employment is a factor undercutting the

Respondent's management turnover defense to the imposition

of a bargaining order here." Flamingo, slip op. at 1-2.

These conclusionary comments do not justify enforcement of

a Gissel category II bargaining order.

First, the ALJ pointed to only a handful of instances (with

little detail) in which the screening process might have influ-

enced employment decisions. See Flamingo, slip op. at 24-

26. Further, any effect the process might have had on the

unit's composition may well have dissipated by the time of the

Board's decision given Flamingo's substantial employee turn-

over--which the Board did not address. Most importantly, it

is anything but clear that the process lasted much beyond the

election. The ALJ made no finding to this effect and there is

scant evidence in the record to support the Board's observa-

tion that it did. As for retention of corporate management

personnel, while the ALJ found Anderson's role in Flamingo's

counter-campaign was substantial, see, e.g., id. at 8

("Anderson primarily developed the overall extent of Respon-

dent's countering campaign."), neither the ALJ nor the Board

assessed the continuing effect of Anderson's retention in light

of employee turnover and changes in on-site management,

including the apparent departure of both Sherlock and Kosin-

ski.6 In short the Board's passing nod in the court's (or

__________

6 The ALJ ascribed to Sherlock and Kosinski much of the respon-

sibility for the unlawful practices, characterizing Sherlock as "a key

perpetrator" and Kosinski as "the perpetrator of the major amount

of conduct" and "the person most active in advising, planning, and

courts') direction does not meet its burden in a Gissel catego-

ry II case. The Board must--to iterate--find that a bargain-

ing order is necessary at the time it is issued and support its

finding with a "reasoned explanation that will enable [us] to

determine from the Board's opinion (1) that it gave due

consideration to the employees' section 7 rights, which are,

after all, one of the fundamental purposes of the Act, (2) why

it concluded that other purposes must override the rights of

the employees to choose their bargaining representatives and

(3) why other remedies, less destructive of employees' rights,

are not adequate." Charlotte Amphitheater, 82 F.3d at 1078

(citations omitted).

III.

Having concluded that the bargaining remedy cannot stand,

we now address Flamingo's substantial evidence and due

process arguments.

First, we agree with Flamingo that two of the unfair

practice findings must be vacated because not supported by

substantial evidence. See CitiSteel USA, Inc. v. NLRB, 53

F.3d 350, 354 (D.C. Cir. 1995). The ALJ found that the

hotel's assistant director of housekeeping, Kent Vaughn, com-

mitted an unfair labor practice by threatening employees at a

meeting that their pay would be reduced and they would lose

benefits if they voted in favor of the Union, based on the

translation of his comments at the meeting made by Amanda

Vasquez, a bilingual guest room attendant, who acted as

interpreter at the meeting. Yet at the same time the ALJ

expressly discredited Vasquez's "chronically overstated and

unreliable" testimony, finding she had mistranslated Vaughn's

actual words, which were to the effect that "loss to employees

was an inevitable consequence of their unionizing' and which

the ALJ acknowledged were "partisan, but largely permissi-

__________

implementing the overall benefit changes." Flamingo, slip op. at

62-63. And the Board did not contradict these findings. According

to Flamingo, both Sherlock and Kosinski have since left its employ,

see Brief of Appellant at 24 & 25 n.4, although Kosinski's departure

is not noted in the record.

ble." Flamingo, slip op. at 42. The ALJ reasoned that "it

was Respondent's choice to designate Vasquez as the inter-

preter for a substantial assembly of employees" and "[a]s

such she became Respondent's agent for this limited purpose,

and in the process disseminated threats to the Hispanic

employees taking meaning from her as to what two prominent

supervisors were presenting." Id. "On this special basis,"

the ALJ concluded, "the allegations must be found to have

merit." Id. We disagree. In the only supporting authority

cited by the ALJ, the Board found an employee-interpreter

acted as an agent of the employer expressly because the

employee's "activities exceeded those of a mere neutral trans-

lator." Ella Indus., 295 N.L.R.B. 976, 976 n.2 (1989). There

is no evidence here that Vasquez, herself a Union supporter,

played a comparable role. She was merely enlisted pro hac

vice to translate Vaughn's words, apparently because she

happened to be both bilingual and present at the meeting.

Because there is no evidence that Vaughn (or any other

representative of Flamingo's management) committed the

unfair labor practices as alleged in paragraph 10(bb) and

10(cc) of the complaint, we cannot sustain the Board's finding

that he did.

Nor can we uphold the ALJ's finding that President Sher-

lock "unlawfully informed employees that it would be futile

for them to support the Union." Flamingo, slip op. at 48.

According to the ALJ, Edgar Galaviz, a fry cook in the chef

department, "testified that Sherlock had said the company

was not obliged to negotiate with the Union, but that in

another sense he could prolong any negotiations for years."

Id. The ALJ expressly rejected Galaviz's testimony "that

Sherlock said that the company was not obliged to negotiate"

but accepted as credible the assertion that Sherlock stated

"that negotiations could be prolonged for years." Id. The

ALJ then concluded: "The surviving evidence in support of

this allegation is that of [Edgar] Galaviz[, a fry cook in the

chef department,] to the effect Respondent foresaw negotia-

tions as lasting for years." Id. Sherlock's statement, as the

ALJ construed it from the testimony he credited, does not

support an unfair labor practice finding. In NLRB v. Gissel

Packing Co., 395 U.S. 575 (1969), the Supreme Court de-

clared:

[A]n employer is free to communicate to his employees

any of his general views about unionism or any of his

specific views about a particular union, so long as the

communications do not contain a 'threat of reprisal or

force or promise of benefit.' He may even make a

prediction as to the precise effects he believes unioniza-

tion will have on his company. In such a case, however,

the prediction must be carefully phrased on the basis of

objective fact to convey an employer's belief as to demon-

strably probable consequences beyond his control or to

convey a management decision already arrived at to close

the plant in case of unionization.

395 U.S. at 618 (quoting 29 U.S.C. s 28(c)). The Board itself

has expressed the view that "[m]ere references to the possi-

ble negative outcomes of unionization ... do not deprive [an

employer's campaign] materials of the protections of Section

8(c)." UARCO, Inc., 286 N.L.R.B. 55, 58 (1987), and has,

accordingly, found no unfair labor practice in such manage-

ment statements as "Please, don't let this outside union force

you and your Company into a knock-down and drag-out

fight!," id. at 56-58, and "a vote for the [union] would put us

back to the bargaining table which is a long and expensive

process, and who knows, we might wind [sic] in another

strike," Coleman Co., 203 N.L.R.B. 1056, 1056 (1970). Be-

cause Sherlock's statement speculated about the potential

duration of the bargaining negotiations based on what he

"foresaw," the finding of an unfair labor practice as alleged in

paragraph 11(b) of the complaint must be vacated. See

General Elec. Co. v. NLRB, 117 F.3d 627, 635-36 (D.C. Cir.

1997) (in finding unfair labor practice based on employer

handbill suggesting likelihood of strike if union won election,

"the ALJ erred by converting a possibility into a certainty,

then declaring it a violation of the Act"); cf. Ron Junkert,

308 N.L.R.B. 1135, 1135 n.2 (1992) (finding unfair labor

practice in employer's "statement that he had only to negoti-

ate with the Union, not sign a contract, and negotiations could

last a year" only because "in this context, it was coercive and,

indeed, a threat that employee support for the Union would

be futile"); Atlas Microfilming, 267 N.L.R.B. 682, 685-86

(1983) (finding statement "[S]ure you can go to the govern-

ment, you can win the election, you bargain one year, two

years, three years, we're not going to agree to anything" was

"nothing less than a warning that the employees' efforts to

organize and select a collective-bargaining representative was

an exercise in futility").

Finally, we address Flamingo's due process argument and

join other circuits in holding that the Board's authority under

the Act to seek preliminary injunctive relief against an em-

ployer in the district court does not deprive the employer of a

neutral decisionmaker in subsequent proceedings before the

Board. See Kessel Food Mkts., Inc. v. NLRB, 868 F.2d 881,

887-88 (6th Cir.), cert. denied, 493 U.S. 820 (1989); NLRB v.

Sanford Home for Adults, 669 F.2d 35, 37 (2d Cir. 1981); cf.

Blinder, Robinson & Co. v. SEC., 837 F.2d 1099, 1104-07

(D.C. Cir. 1988) (SEC's authority to seek injunction in district

court and to later impose administrative penalty does not

violate due process), cert. denied, 488 U.S. 869 (1988). Like

the Sixth Circuit, we find dispositive the Supreme Court's

holding in Withrow v. Larkin, 421 U.S. 35 (1975), that the

combination of investigative and adjudicative functions does

not, without more, constitute a violation of due process. See

Kessel Food Mkts, 868 F.2d at 887-88. Nor do we perceive

any separation of powers defect in the Act's scheme. See

Blinder, 837 F.2d at 1103-04.

IV.

For the preceding reasons we grant Flamingo's petition for

review and deny the Board's cross-application for enforce-

ment of the Board's order insofar as it (1) finds unfair labor

practices as described in paragraphs 10(bb), 10(cc) and 11(b)

of the NLRB complaint and (2) orders Flamingo to bargain

with the Union. We grant the Board's cross-application for

enforcement of its order with respect to the other unfair labor

practices found to have been committed. We further remand

for the NLRB to reconsider the appropriate remedy, in

accordance with our precedent, and to issue a bargaining

order only if it makes a finding that in light of circumstances

at the time of the order, taking into account the passage of

time, turnover of unit members and change in management,

"the possibility of erasing the effects of past practices and of

insuring a fair rerun election by the use of traditional reme-

dies is slight and that employee sentiment once expressed in

favor of the Union would be better protected by a bargaining

order." Charlotte Amphitheater Corp. v. NLRB, 82 F.3d at

1078 (citations omitted).

So ordered.

Rogers, Circuit Judge, concurring: Although I agree that

the Board has failed to explain adequately its imposition of a

Gissel bargaining order, the record demonstrates that the

Board made sufficient findings regarding management turn-

over at the hotel. While the ALJ first suggested that "man-

agement turnover," in general, should not "affect[ ] the validi-

ty of a bargaining order," he proceeded to address this factor

and found the hotel's evidence unconvincing. The Board, in

turn, adopted these findings regarding management turnover

and clarified the underlying reasoning sufficiently. Thus, in

my view, the principal issue requiring further consideration

on remand is the evidence of substantial employee turnover at

Flamingo since the election.

Both the Board and the ALJ considered the hotel's evi-

dence of management turnover and offered particularized

explanations why this evidence does not make a bargaining

order an inappropriate remedy. At the hearing before the

ALJ, the hotel introduced evidence showing that eight of the

twenty-one supervisors found to have committed unfair labor

practices were no longer employed by the hotel.1 With the

exception of William J. Sherlock, the hotel's President, the

ALJ discounted the significance of these departures because

the supervisors' unlawful conduct was "minor in nature" or

had only a minimal impact on employees in comparison to the

__________

1 Before rendering his decision, the ALJ denied a motion by the

hotel to reopen the record to admit evidence that three additional

supervisors, including William J. Sherlock, the President of the

hotel throughout the election period, had left its employ. The hotel

has not raised any substantial challenge to this decision in its

petition for review, and the court can only consider the evidence

contained in the record. See 29 U.S.C. s 160(e), (f) (1994); Glomac

Plastics, Inc. v. NLRB, 592 F.2d 94, 100 (2d Cir. 1979). Neverthe-

less, the ALJ did consider the effect of Sherlock's departure on the

need for a bargaining order, and therefore the court can consider

this evidence in reviewing the Board's order. See Charlotte Amphi-

theater Corp. v. NLRB, 82 F.3d 1074, 1080 (D.C. Cir. 1996) (citing

Conair Corp. v. NLRB, 721 F.2d 1355, 1388-89 n.1 (D.C. Cir. 1983)

(Wald, J., dissenting)).

substantial number of other unfair labor practices committed

by hotel management. Additionally, the ALJ explained that

"the mere fact that Sherlock is now gone has lessened effect

when it is known that basic labor relations policies are

devised by corporate Hilton executives and not necessarily

the property president at some given point in time."

In order to clarify this assessment, the Board pointed to

Jim Anderson, Hilton's Corporate Senior Vice President for

Labor Relations and Personnel Administration, as one of the

remaining corporate executives who "played a major role in

orchestrating the [hotel's] unlawful campaign against the

Union." Anderson "primarily developed the overall extent of

[the hotel's] countering campaign" against the Union organi-

zation drive, was one of the "select group" that helped choose

the labor relations consulting firm hired to combat the union,

and directed the on-site managers implementing the cam-

paign. Although Anderson was not personally involved in the

majority of unfair labor practices committed by on-site super-

visors, he directly participated in some of the hotel's more

pervasive unlawful conduct. He was involved, for example, in

the hotel's decision to improve employee health benefits prior

to the election and was responsible for determining the timing

of the announcement. He also approved an increase in wages

for hourly employees, which affected more than half of the

employees in the hotel department. In the ALJ's words:

"Anderson was delegated the responsibility to determine its

timing, and knowing well how it might interplay with the

Union's campaign he directed it to be implemented immedi-

ately." Cf. Electrical Prods. Div. of Midland-Ross Corp. v.

NLRB, 617 F.2d 977, 987 (3d Cir. 1980).

Regardless of the extent of Anderson's personal complicity

in the hotel's unlawful attempts to influence the election, the

Board used his conduct to illustrate its general view that

responsibility for the hotel's actions reached higher levels of

Hilton's corporate management. Anderson and other Hilton

executives set the basic labor policies for Hilton's various

casino-hotels and specifically approved some of the actions

taken by the hotel's supervisors. Thus, the Board concluded

that turnover in on-site management is unlikely to improve

the chances for a fair rerun election as long as Hilton

corporate policy remains unchanged and guided by executives

such as Anderson. See NLRB v. Berger Transfer & Storage

Co., 678 F.2d 679, 694 (7th Cir. 1982); NLRB v. Anchorage

Times Publ'g Co., 637 F.2d 1359, 1370 (9th Cir. 1981).

This conclusion is bolstered by the Board's experience in

other cases involving similar unlawful attempts by Hilton to

interfere with union elections at its Nevada hotel-casinos.

See, e.g., Reno Hilton Resorts, 320 NLRB 197, 197-98 (1995);

Reno Hilton Resorts Corp., 319 NLRB 1154, 1154, 1165-66

(1995); Flamingo Hilton Reno, 317 NLRB 361, 361 (1995),

aff'd mem, 95 F.3d 1157 (9th Cir. 1996); Hilton Hotels Corp.,

282 NLRB 819, 819, 821-22 (1987). For example, in one of

these cases, the ALJ noted:

Hilton does not want to deal with any more unions at the

Reno Hilton, or any other of its Nevada properties

[including the Flamingo Hilton-Laughlin]. All agree

that once [the Reno Hilton] learned of the union organiz-

ing activities, it decided at the highest corporate levels to

oppose the Union and to involve all or most of its

midlevel and high executives in resisting the Union's

efforts.

Reno Hilton Resorts Corp., 319 NLRB at 1164; see also id.

at 1164 n.6; Hilton Hotels Corp., 282 NLRB at 821 (empha-

sizing evidence that the entertainment director for all of the

Nevada properties was under "corporate instructions to fight"

a unionization drive at the Reno Hilton). Indeed, in the past,

management at Flamingo has even unlawfully refused to

bargain with a union after it was elected and certified as the

representative of a different bargaining unit at the hotel. See

Flamingo Hilton-Laughlin, Inc., 306 NLRB No. 186, 140

L.R.R.M. (BNA) 1117 (Mar. 31, 1992), enforced, 19 F.3d 28

(9th Cir. 1994).

In sum, the Board has clearly articulated the reasons why

it concluded that the departure of several on-site supervisors

has not substantially increased the possibility of a fair rerun

election. In particular, contrary to the court's suggestion, see

opinion at 11, the Board has already addressed the signifi-

cance of Sherlock's resignation. Moreover, the Board cannot

be faulted for failing to consider John Kosinski's departure

because the record contains no evidence of this development.2

The court must defer to the Board's "expert estimate as to

the [continuing] effects on the election process of unfair labor

practices," NLRB v. Gissel Packing Co., 395 U.S. 575, 612

n.32 (1969); accord Davis Supermarkets, Inc. v. NLRB, 2

F.3d 1162, 1175-76 (D.C. Cir. 1993), so long as it has provided

a reasoned explanation of its conclusions based upon substan-

tial evidence in the record, see Avecor, Inc. v. NLRB, 931

F.2d 924, 937-38 (D.C. Cir. 1991).

I otherwise concur in the court's opinion. The Board has

not adequately explained why employee turnover had not

ameliorated the effects of the hotel's unfair labor practices to

such an extent that a Gissel order was unnecessary. The

Board dismissed the effects of employee turnover within the

bargaining units primarily because the hotel's "unlawful

screening of job applicants ... continued for many months

after the July 6, 1993 election." While the Board might well

determine that an employer's screening process, if used to

alter natural employee turnover in order to disfavor the union

in future elections, might leave "so lasting an imprint that a

fair rerun election cannot be assured," id. at 937, as the court

makes clear, see opinion at 10-11, the Board's assertion in

this regard is not supported by the record. The ALJ only

found that the hotel had screened out pro-Union applicants in

the months directly preceding the election, and little evidence

__________

2 In its briefs, the hotel asserts that Kosinski has left its

employ, without specifying the date of his departure or offering any

evidentiary support. From the record it is clear that Kosinski was

still employed by the hotel throughout the course of the hearings

before the ALJ. The Board also appeared to have no knowledge of

his departure at the time it issued the bargaining order. There is

no indication that the hotel ever alerted the Board to this factual

development, and the Board had no obligation to inquire into

Kosinski's status. See Charlotte Amphitheater Corp., 82 F.3d at

1080.

supports the conclusion that the screening continued after-

wards. On remand the Board must "carefully consider em-

ployee turnover" and determine whether "changes in the

[hotel's] work force have made a bargaining order now inap-

propriate, even if one might have been appropriate at some

earlier time." Id. (quoting NLRB v. Pace Oldsmobile, Inc.,

681 F.2d 99, 102 (2d Cir. 1982) (per curiam)) (internal quota-

tion marks omitted).

Although its finding that the hotel continued to screen out

Union-leaning applicants after the election cannot be main-

tained, at least not without further explanation of the evi-

dence and inferences on which it relies, the Board should

consider on remand the fact that the hotel has not changed its

hiring procedures and, thus, the potential for abuse remains.

Prior to the election, the hotel modified its hiring practices by

requiring a second approval step for job applicants. This

additional level of review was used by supervisors in the

hotel's human resources department to disqualify applicants

who had "friends or relatives working in the casino that were

affiliated with the union." Because this unlawful screening

was carried out personally by one or two supervisors, it

remained undetected until well into the course of the hearings

before the ALJ. Although there is no evidence that the

hotel's human resources department is still using this second

round of approval to dilute Union support, the procedure

remains in effect. The ALJ noted that given the hotel's

"deep commitment" to resisting the unionization of its em-

ployees, "conduct this devious invites the presumption [that

further tainting] could readily recur." Somewhat undercut-

ting this presumption, however, are the apparent facts that

the supervisor responsible for devising and implementing the

applicant screening, John Kosinski, is no longer employed by

the hotel 3 and that the responsibility for conducting the

second approval step is now divided among several different

__________

3 Although evidence of Kosinski's departure is not contained in

the record, see supra note 2, on remand, the hotel may, of course,

petition the Board to reopen the record to admit such evidence.

See 29 C.F.R. s 102.48(b) (1998).

members of the human resources department. These are

considerations for the Board on remand.

Furthermore, aside from the issue of applicant screening,

there may exist other reasons why substantial employee

turnover within the bargaining units may have failed to

dissipate the effects of Flamingo's unfair labor practices.

After cursorily dismissing the evidence of employee turnover

as "irrelevant," the ALJ remarked:

[T]here are several hundred employees remaining in the

two units who experienced the influencing unfair labor

practices. The facility never closes, and a more than

ordinary potential is present for continuing and cross

communication among new and longer service employees

as well as conversation spanning departmental lines

about many happenings of the Union's long campaign.

This somewhat speculative conclusion does not, by itself,

provide sufficient explanation for the imposition of the bar-

gaining order. Cf. Be-Lo Stores v. NLRB, 126 F.3d 268, 283

(4th Cir. 1997). The ALJ pointed to no evidence in the

record that "cross-communication" had actually occurred but

rather offered general assumptions that could equally apply

to many other employers. Perhaps realizing the inadequacy

of these statements, the Board did not comment on them and

instead chose to emphasize the hotel's continued applicant

screening as a factor undercutting the effects of substantial

employee turnover. Nevertheless, on remand, the Board

should reevaluate the ALJ's findings and consider any evi-

dence showing that knowledge of the hotel's unfair labor

practices continues to disseminate throughout the workforce.

Laughlin, Nevada, is a relatively small population center

whose chief industry consists of several large casino hotels,

including the Flamingo. New employees, who have likely

worked at other area casinos, may already know of the labor

difficulties at the hotel and management's determination to

prevent unionization. But without specific findings by the

Board supported by evidence in the record, such factors

remain purely speculative and a bargaining order cannot

issue. See Avecor, Inc., 931 F.2d at 938.

Finally, while the passage of time, in and of itself, should

not be dispositive, see St. Francis Fed'n of Nurses & Health

Prof'ls v. NLRB, 729 F.2d 844, 856 (D.C. Cir. 1984); Peoples

Gas Sys., Inc. v. NLRB, 629 F.2d 35, 47-48 (D.C. Cir. 1980),

it may increase the chances of a fair rerun election when

combined with other changes in the bargaining unit, such as

employee turnover. See J.L.M., Inc. v. NLRB, 31 F.3d 79, 84

(2d Cir. 1994). Over five years have now elapsed since the

tainted representation election. In its initial decision, the

Board adopted the ALJ's finding that the three-year lapse

between the election and his order was representative of the

normal course of litigation and particularly unavoidable due

to the complexity of the instant case. Regardless of the

adequacy of the Board's reasoning, on remand the Board

must readdress whether the intervening years, in conjunction

with the changed circumstances, have helped to dissipate the

remaining effects of Flamingo's unfair labor practices. See

Charlotte Amphitheater Corp., 82 F.3d at 1078; Avecor, Inc.,

931 F.2d at 937.