Federated Logistics & Operations v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2004 Decided February 25, 2005

No. 03-1323

FEDERATED LOGISTICS AND OPERATIONS, A DIVISION OF

FEDERATED CORPORATE SERVICES, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

UNITE, AFL-CIO-CLC,

INTERVENOR

Consolidated with

03-1357

On Petition for Review and Cross-Application for

Enforcement of an Order of the

National Labor Relations Board

Meir Feder argued the cause for petitioner. With him on

the briefs were Andrew M. Kramer and Julia M. Broas.

Robert J. Englehart, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the brief

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were Arthur F. Rosenfeld, General Counsel, John H. Ferguson,

Associate General Counsel, Aileen A. Armstrong, Deputy

Associate General Counsel, and David A. Fleischer, Senior

Attorney.

James B. Coppess argued the cause for intervenor. With

him on the brief was Ira J. Katz.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Opinion dissenting in part filed by Circuit Judge

HENDERSON.

SENTELLE, Circuit Judge: Federated Logistics and

Operations (“Federated” or “Employer”), a division of Federated

Corporate Services, Inc., petitions this Court for review of a

decision and order of the National Labor Relations Board

(“Board”) in an unfair labor practice proceeding. Federated

challenges Board determinations that it unlawfully made threats

to, withheld wage increases from, and disciplined employees at

one of its distribution facilities during a union organizing drive

at its Tampa, Florida facility. Federated also challenges the

broad order the Board imposed to remedy these unfair labor

practices. For the reasons more fully set forth below, we deny

the petition.

I. Background

Federated Logistics, which provides receipt, distribution

and return services for Federated Department Stores, operates

one of its fourteen distribution centers in Tampa, Florida. On

August 25, 2000, the Union of Needletrades, Industrial and

Textile Employees (“UNITE”) petitioned the Board to hold an

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election for the union to unionize the plant. When Federated

management received the petition three days later, it flew its

Vice President of Labor and Employee Relations from its

Cincinnati, Ohio headquarters to Tampa to coordinate the

company response to the organizing drive. Federated then

launched a voluminous communications campaign with its

Tampa employees. From August 28th, when it was notified of

the election petition, through October 5th, the evening before the

election, the Employer issued an open letter nearly every other

day on the effects of unionization, generally organized in a

“frequently asked question” format. In its August 29th letter, for

example, Federated wrote:

CAN WE TRY UNION REPRESENTATION FOR A

YEAR AND EASILY GET RID OF THE UNION AFTER

THAT IF WE DON’T LIKE IT?

NO! If a union gets in, it will be very difficult, if not

impossible, to get rid of the union.

Joint Appendix (“J.A.”) at 42. Federated arranged for the

presence of specially trained managers from other facilities to

speak one-on-one with employees about unionization. Finally,

Joe Vella and Kevin Hart, two Federated vice presidents,

convened nonmandatory group meetings with the Tampa

employees two and four days before the election, to provide

further information on unionization in a presentation based on

a series of power-point slides.

The Union lost the October 6, 2000 election by a vote of 81

to 60. The Union filed objections to the election with the Board

on October 13, 2000. On March 14, 2002, an administrative law

judge (“ALJ”) held that Federated violated NLRA § 8(a)(1), 29

U.S.C. § 158(a)(1), by (1) maintaining a no-solicitation rule

prohibiting solicitation in work areas during nonworking time;

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(2) interrogating employees about their union activities; (3)

creating the impression among employees that their union

activities were under surveillance; (4) soliciting an employee to

attend and report back on a union meeting; (5) soliciting

employee grievances with the implied promise to remedy them;

(6) promising employees unspecified benefits if they defeated

the union; and (7) threatening employees that supporting the

Union would be futile, that they would lose benefits if the Union

were elected, and that their wages would be frozen. Federated

Logistics & Operations, 340 N.L.R.B. No. 36, slip op. at 20

(2003) (“ALJ Decision”). The ALJ additionally found that

Federated had violated NLRA § 8(a)(3), 29 U.S.C. § 158(a)(3),

by (1) withholding a wage increase from employees because of

their involvement in the election; and (2) disciplining two

employees because they engaged in union activities. Id. at 20-

21. The Board adopted the ALJ’s findings over Petitioner’s

objections. As a remedy, the Board imposed a broad cease-and-

desist order on Federated with respect to all the above-

mentioned violations, ordered the employer to supply the Union

with the names and addresses of employees for two years or

until a certified election had been held, and ordered Federated to

take various affirmative actions to repair the effects of its no-

solicitation rule, unlawful disciplining of employees, and

withheld wage increase. The Board also directed that a

Federated official or a Board agent in the presence of such an

official read a Notice of Violation included in the Board opinion

to an assembly of the Tampa employees.

Of the Board’s findings, Federated appeals only the

determinations that it unlawfully threatened the Tampa

employees with the futility of unionization, withheld wage

increases, and disciplined employees in violation of NLRA §

8(a)(1) & (3), 29 U.S.C. § 158(a)(1) & (3). (Federated does not

dispute the Board’s adoption of the ALJ’s finding that it

committed the other six abovementioned unfair labor practices.)

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The Employer further challenges the Board’s imposition of what

it characterizes as an “extraordinary” remedy, as unwarranted by

the facts of the case.

II. Discussion

A. Standard of Review

Under the NLRA, the Board’s findings of fact are

conclusive “if supported by substantial evidence on the record

considered as a whole . . . .” 29 U.S.C. § 160(e). “Substantial

evidence means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Evergreen

America Corp. v. NLRB, 362 F.3d 827, 837 (D.C. Cir. 2004)

(internal quotations omitted). This means that we must uphold

the Board’s decision even if we would have reached a different

result upon de novo review. See Perdue Farms, Inc., Cookin’

Good Div. v. NLRB, 144 F.3d 830, 834-35 (D.C. Cir. 1998). We

appreciate our dissenting colleague’s recitation of the evidence

which serves to well illustrate the volume of substantial

evidence upon which the Board relied. However, our

colleague’s proposals as to how her findings would have

differed from the Board’s on that evidence are not consistent

with our limited role in review.

B. Unlawful threats

Federated’s first challenge is that the Board erred in finding

that comments made by Vella and Hart amounted to unlawful

threats of the futility of unionization in violation of NLRA §

8(a)(1), 29 U.S.C. § 158(a)(1), which forbids an employer from

“interfer[ing] with, restrain[ing], or coerc[ing] employees in the

exercise” of their statutory rights under the Act.

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Specifically, the ALJ found as fact that, during the course

of a power point presentation to a large group of Tampa

employees at informational meetings convened shortly before

the election:

Vella and Hart did inform the employees that bargaining

would start at zero and that the Union would seek to take

control of their 401(k) plan and that it was likely they

would lose the 401(k) as the Union would bargain for

control as it did at Respondent’s facility in Seacaucus, New

Jersey. [Further,] Vella and Hart told the employees that

the work could be moved in the event of a strike.

ALJ Decision at 14 (emphasis added).

The Board accepted these findings, characterizing them as

follows:

During employee meetings on October 2, and 4, . . . Vella

and Hart stated, with regard to what would happen to

employees’ wages and benefits if the Union were selected,

that “[they] would start from zero and would negotiate from

that,” that the Union would strike, and that if a strike

occurred the operation could be shut down and moved to

another of the Respondent’s facilities in 3 days, and that

employees could lose their 401(k) plan.

Id. at 1. Reviewing these comments “in context, to determine

whether they ‘effectively threaten employees . . . [,]’” id. at 2,

the Board agreed with the ALJ that the comments “reasonably

would be understood by employees as threats that benefits

would be lost and that selecting union representation would be

futile.” Id.

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1. Substantial Evidence of Threatening Statements

Federated argues that there is insufficient evidence in the

record to establish that its managers made statements

constituting prohibited threats. Instead, the employer argues, the

statements that the ALJ did establish it made fell within the safe

haven created by NLRA § 8(c), 29 U.S.C. § 158(c), to protect

employers’ free speech rights. Pet. Br. at 26.

Section 8(c) holds that:

The expressing of any views, argument, or opinion, or the

dissemination thereof, whether in written, printed, graphic,

or visual form, shall not constitute or be evidence of an

unfair labor practice under any of the provisions of this Act,

if such expression contains no threat of reprisal or force or

promise of benefit.

29 U.S.C. § 158(c).

Therefore, “an 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.’” NLRB v. Gissel Packing Co., Inc., 395 U.S.

575, 618 (1969) (quoting NLRA § 8(c)). This means that “an

employer is free . . . to tell what he reasonably believes will be

the likely economic consequences of unionization that are

outside his control,” so long as the employer stops short of

implying that it “may or may not take action solely on [its] own

initiative for reasons unrelated to economic necessities . . . .” Id.

at 618. If the statements do amount to a threat under this test,

whether or not they are true is inapposite. MacMillan

Publishing Co. v. NLRB, 194 F.3d 165, 167 (D.C. Cir. 1999). In

essence, Federated is saying that the record lacks sufficient

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evidence to support a finding of a “threat of reprisal or force.”

As stated above, we must treat the Board’s findings as to

questions of fact as conclusive “if supported by substantial

evidence on the record considered as a whole . . . .” 29 U.S.C. §

160(e). This means that we will therefore uphold the Board’s

findings with respect to the threatening nature of Vella’s and

Hart’s comments if they are based upon “such relevant evidence

as a reasonable mind might accept as adequate to support [the]

conclusion.” Evergreen America Corp., 362 F.3d at 837. Insofar

as these findings were based on credibility determinations by the

ALJ, we will not reverse unless “those determinations are

hopelessly incredible, self-contradictory, or patently

unsupportable.” Shamrock Foods Co. v. NLRB, 346 F.3d 1130,

1134 (D.C. Cir. 2003) (internal quotations omitted).

Because Federated is challenging the Board’s findings that

Vella and Hart’s statements amounted to unlawful threats on the

basis that they fall within § 8(c)’s protection, Federated must

show no reasonable factfinder could find that the three managers

made statements that amounted to implications that, in the event

of unionization, Federated might take action on its own initiative

to render unionization futile, for reasons unrelated to economic

necessity. See Gissel Packing, 395 U.S. at 618. Federated

cannot meet this burden.

Federated first contends that the Board’s finding that

“[Federated] threatened that the Union ‘would strike[,]’” Pet.Br.

at 27 (emphasis in brief), is protected under § 8(c), 29 U.S.C. §

158(c). Id. at 29 Alone, a prediction that a union would strike

after being certified would not amount to a threat. See Hilton-

Laughlin v. NLRB, 148 F.3d 1166, 1174 (D.C. Cir. 1998) (noting

that the Board itself has “found no unfair labor practice in such

management statements as . . . [after] ‘a vote for the [union] . . .

who knows, we might wind [up] in another strike.’”). But in

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taking this comment out of context, Federated has blown its

relevance out of proportion. The Board, adopting the ALJ’s

conclusion, found that the comment that “the Union would

strike” amounted to a threat of futility when viewed in

combination with the managers’ other statements (that

bargaining would start from zero, that work would be moved to

another facility in the event of a strike, and that employees could

lose their pensions and 401(k) plans following unionization).

See ALJ Decision at 1 (“[W]e agree with the judge that

Beachy’s, Vella’s and Hart’s statements reasonably would be

understood by employees as threats that benefits would be lost

and that selecting union representation would be futile.”); id. at

14 (“All of [these comments] in combination w[ere] a threat to

employees that it was futile to support the Union.”). Federated

cannot show that the Board lacked substantial evidence to find

that those other statements (a) were made and (b) together

amounted to a threat that Federated might take action on its own

initiative to render unionization futile.

As the ALJ correctly concluded, threats that bargaining

would start from zero and benefits would be lost in the event of

unionization amount to unlawful threats of futility. See Taylor

Dunn Mfg Co., 252 NLRB 799, 800 (1980), enfd. without

opinion, 679 F.2d 900 (9th Cir. 1982); Noah’s Bay Area Bagels,

LLC, 331 NLRB 188 (2000). A threat that the employer would

move the Tampa facility’s work elsewhere in the event of a

strike is an obvious threat of futility, given that it would depend

on Federated “tak[ing] action solely on [its] own initiative . . . .”

Gissel Packing, 395 U.S. at 618. The ALJ’s determination that

the managers communicated that these events would come to

pass in the event of unionization and/or a strike, which came

down to a credibility determination between the testimony of the

managers as against that of three employees at the meeting, see

ALJ Decision at 13–14, is neither “hopelessly incredible,

self-contradictory, or patently unsupportable.” Shamrock Foods,

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346 F.3d 1130 at 1134 (internal quotations omitted). This is true

in light of not only the employees’ specific testimony that they

were told these events would occur, ALJ Decision at 13, but also

talking points included on the slides that hardly allow for an

alternate interpretation of events. To give just a sample, the

slides used at the meetings reminded the employees that

“EVERYTHING you have now goes on bargaining table[,]” J.A.

at 95; employees at one of the employer’s unionized facilities

have no Federated pension or 401(K) plan, id. at 99; and the

“Union will try to stop work here” followed by a statement that

the “Company can protect itself by hiring new people or moving

work.” Id. at 100.

2. Viewing the Statements in the Totality of the

Circumstances

Urging that “the coercive tendencies of an employer’s

conduct must be assessed within the totality of the

circumstances surrounding the occurrence at issue,” Pet. Br. at

22 (quoting Brown & Root, Inc. v. NLRB, 333 F.3d 628, 634

(5th Cir. 2003)), Federated also argues that Vella’s and Hart’s

comments do not violate NLRA § 8(a)(3), 29 U.S.C. §

158(a)(3), when viewed in the larger context of the employer’s

overall communication with the Tampa employees. Pet. Br. at

21–22. Arguably, based on the language it chose to use in its

decision, the Board did assess the comments at issue with the

totality of the circumstances in mind. But we need not decide

whether it was correct in doing so (and whether we should adopt

the Fifth Circuit’s totality-of-the-circumstances test): substantial

evidence supports the Board’s conclusion that the comments

were unlawfully threatening when viewed either on their own or

in context.

Though Federated maintains that its communication with

employees was “deliberate,” “careful” and “balanced,” Pet. Br.

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at 5, in order to do so, Federated had to delve into the dozens of

letters it distributed to the staff, and the slides Vella and Hart

used in the employee meetings, for bits and pieces of positive

language–such as assurances that it would engage in “give and

take” bargaining with the union should it be elected–and cites

them out of context. See, e.g., Pet. Br. at 23 (citing 12 separate

references to the “give and take” nature of post-unionization

bargaining in the letters and power point presentation); id.

(providing two examples of the statement “we will respect your

decision.”). It is true that the Board has previously held that

statements such as those the Board found Vella and Hart to have

made in violation of § 8(a)(1), 29 U.S.C. § 158(a)(1)–e.g. that

the employees would have to bargain from zero in the event of

unionization–“are not violative of the [NLRA] when other

communications make it clear that any reduction in wages or

benefits will occur only as a result of the normal give and take

of negotiations.” Taylor-Dunn, 252 NLRB at 800. But random

citations do not a coherent view make. Federated’s attempt to

lose us in the trees does not detract from the fact that a

reasonable factfinder examining the textual record of the

campaign–and even the specific instances where Federated used

this supposedly neutral language–could conclude that the

communications were designed to engender employee fears

about potential loss of wages and benefits.

In a September 11, 2000, letter to employees, for example,

Federated wrote:

Unionism means bargaining. Bargaining means “give and

take.” And, give and take means that associates could get

more, the same, or less when a union negotiates a contract.

That’s right, less.

Letter of September 11, 2000, J.A. at 46 (emphasis in original).

The slides upon which Federated based the presentation at the

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employee meetings on October 2nd-4th contained more of the

same:

If the union is selected by a majority of voters, the union

gets the right to participate in “give and take” bargaining

[Bargaining] “Does not start from where you presently are

in wages, benefits, terms and conditions of employment”

...

EVERYTHING you have now goes on bargaining table –

union will bargain with what you have now.

NO ONE can predict what will happen in bargaining

- MORE

- SAME

- LESS

ANYTHING IS POSSIBLE

Slides 21-23, J.A. at 94-95.

A reasonable factfinder would therefore not be compelled

to conclude that the impact of Vella’s and Hart’s comments is

mitigated by the overall communications campaign. Although

we are not called upon here to decide whether the letters and

power point slides were, themselves, unlawfully threatening or

coercive in violation of § 8(a)(3), 29 U.S.C. § 158(a)(3), the

wording of the letters and the slides–notwithstanding the

salutary use of phrases such as “give and take”–might bolster the

conclusion that the employees would be left with the impression

that Federated was threatening futility.

In addition, the Board noted that Vella’s and Hart’s

statements “were not made in circumstances free from other

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unfair labor practices.” ALJ Decision at 2 (quoting Noah’s Bay

Area Bagels, 331 NLRB at 189). As recounted above, the Board

found that Federated had committed seven other unfair labor

practices which, it was reasonable for the Board to conclude,

“len[t] additional coercive meaning to these managers’

statements.” Id.

Thus, Appellant’s challenge to the Board’s finding that

Vella’s and Hart’s comments violated § 8(a)(3), 29 U.S.C. §

158(a)(3), would fail, regardless of whether we were to adopt

the Fifth Circuit totality-of-the-circumstances test. Vella’s and

Hart’s comments when viewed in context of the record as a

whole remain adequate to support the Board’s conclusion that

Federated was threatening the Tampa employees that electing

the union would be futile.

B. Withheld Wage Increase

Federated’s second major challenge is that the Board erred

in affirming the ALJ’s finding that the employer violated §

8(a)(1) & (3) by withholding a wage increase in response to the

union campaign. 29 U.S.C. § 158(a)(1) & (3). Because this

finding was supported by substantial evidence on the record as

a whole, we cannot hold the Board in error.

The ALJ found that Federated “violated the [NLRA] by

failing to grant a wage increase and by placing the onus on the

Union for doing so,” ALJ Decision at 21, based on the following

evidence: In April 2000, Federated management requested that

two Tampa managers check the need to make seasonal wage

adjustments for workers in the facility. Id. at 15. After a

follow-up email on July 27, 2000, the two managers

recommended a wage increase for both seasonal and regular

employees on the basis that current wages were non-

competitive. Id. Senior Vice President Hart considered this

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recommendation in mid-August, and in September rejected the

recommendation, saying that the Tampa facility was not having

trouble attracting seasonal workers. Id.

As a general rule, while a union representation proceeding

is pending, an employer must decide whether to grant benefits

“precisely as it would if the union were not on the scene.”

Perdue Farms, Inc. Cookin’ Good Division v. NLRB, 144 F.3d

830, 836 (D.C. Cir. 1998). It follows that an employer may not

withhold a wage increase that would have been granted but for

a union organizing campaign. See also Pedro’s, Inc. v. NLRB,

652 F.2d 1005, 1008 n.8 (D.C. Cir. 1981).

Two pieces of circumstantial evidence reflected in the

record provide a basis for the Board to adopt the ALJ’s finding

that Federated withheld a wage increase because of the

unionization campaign, and the Tampa employees’ involvement

therein. First, Federated decided not to grant the wage increase

in the middle of the unionization campaign. Second, by the first

or second week of November, Federated was, by its own

admission, encountering difficulty filling openings for seasonal

employees, and had to hire temporary workers to meet demand

for its services. ALJ Decision at 15. But what is more

persuasive is the evidence cited by the ALJ that a Federated

manager showed a record of a wage increase at a non-unionized

Federated facility in Georgia to Tampa employees, to make

them aware of what would have happened at their facility if they

had not been trying to unionize. See ALJ Decision at 17

(recounting testimony of five Tampa employees that managers

brought a notice of a pay raise at Stone Mountain, Georgia

around to them, and told them that they would have received a

similar raise but for the union activity in Tampa). Arguably, an

employer might be reluctant to raise wages shortly before a

union election, lest it be accused of attempting to thereby

influence the outcome of the election. Pedro’s Inc. v. NLRB,

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652 F.2d at 1008 & n.8. It is even possible, as Federated

strenuously argues, that in mid-September, its managers simply

did not foresee that it would have difficulty by early November

in attracting enough workers to staff up the facility during the

peak holiday season–although this conclusion is certainly not

compelled by the record evidence. But the credited testimony

of five Tampa employees that they were told by Federated

managers they were not receiving wage increases being granted

in other facilities because of the unionization effort is

indisputably “relevant evidence [that] a reasonable mind might

accept as adequate to support [the] conclusion” that Federated’s

purpose in withholding the wage increase was anti-union animus

in violation of §§ 8(a)(1) & (3), 29 U.S.C. § 158(a)(1) & (3).

Evergreen America Corp., 362 F.3d at 837.

C. Disciplining of Employees

The final Board finding that Federated challenges, again for

lack of substantial evidence, is that Federated violated § 8(a)(3),

29 U.S.C. § 158(a)(3), by “issuing discriminatory warnings” to

and suspending Tampa employees Emmanuel Williams and

Sandra Lewis for engaging in § 7 activity. ALJ Decision at 3.

Federated maintains that it suspended the employees—both

active in the unionization effort—for harassing two Haitian

workers on account of their country of origin. However, a memo

kept by the human resources manager responsible indicated that

her first and primary motive was disciplining the two employees

for violating the Employer’s no-solicitation policy. ALJ

Decision at 18-20.

Once again, the ALJ’s conclusion that the disciplinary

actions violated the NLRA came down to a credibility

determination in the face of conflicting testimony. ALJ

Decision at 20. In crediting the word of Williams and Lewis

over that of management, the ALJ relied not only on their

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testimonial evidence that they were disciplined for union

solicitation, but also on the human resources memos relating that

the reason management first confronted the two employees was

to speak about their violation of the solicitation ban, see id. at

18. This evidence is therefore sufficient to support the Board’s

adoption of the ALJ’s conclusion that Federated violated the Act

in the manner in which it disciplined Williams and Lewis.

Shamrock Foods Co. v. NLRB, 346 F.3d at 1134; Evergreen

America Corp., 362 F.3d at 837.

D. Special remedies

Federated’s final challenge is to the Board’s choice of

remedies. First, Federated challenges the cease and desist order

that the Board imposed, requiring Federated to cease and desist

from committing the unfair labor practices it was found to have

committed, and “[i]n any other manner interfering with,

restraining, or coercing employees in the exercise of the rights

guaranteed them by Section 7 of the [NLRA].” ALJ Decision at

5. Federated objects that the Board erred in imposing a broad

order without addressing the suitability of “traditional

remedies,” considering what Federated characterizes as its

“extensive efforts to comply with the law,” or adequately

establishing that Federated’s violations were so egregious as to

warrant an extraordinary remedy.

A cease and desist order as broad as that ordered by the

Board in this case “is warranted only when a respondent is

shown to have a proclivity to violate the [NLRA], or has

engaged in such egregious or widespread misconduct as to

demonstrate a general disregard for the employees' fundamental

statutory rights.” NLRB v. Blake Construction, 663 F.2d 272,

285 (D.C. Cir. 1981).

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In applying that precedent to this record, it bears repeating

that, in addition to the three Board findings that Federated

unsuccessfully challenges in this appeal–that it unlawfully made

threats of the futility of unionization, withheld a wage increase,

and disciplined two employees for engaging in union activity–it

is uncontested that Federated also committed six other unfair

labor practices. As the Board found, “when faced with the

Union organizing effort among its employees, [Federated]

responded with extensive and serious unfair labor practices.”

ALJ Decision at 3. These included maintaining an over-broad

no-solicitation rule, interrogating employees about union

activities, creating the impression of surveillance of union

activities, asking employees to spy on union activities, soliciting

employee grievances with the implied promise to remedy them,

and promising employees unspecified benefits for defeating the

union. Other courts have held similar patterns of violation to

amount to “widespread” anti-union activity. See, e.g., Coil

A.C.C. Inc. v. NLRB, 712 F.2d 1074, 1076 (6th Cir. 1983)

(upholding a broad cease and desist order where the Board

found the employer to have violated NLRA § 8(a)(1) by

“threatening, coercing and restraining its employees in the

exercise of their [§ 7] rights,” “threatening to [shut down] the

company” and discharging an employee involved with the

union). As the First Circuit has put it, “when a record discloses

persistent attempts to interfere with legislatively protected rights

by varying methods, the Board may restrain a labor organization

from committing similar or related unlawful acts in the future.”

NLRB v. Union Nacional de Trabajadores, 540 F.2d 1, 11 (1st

Cir. 1976). Given the scope of Federated’s communications

offensive against the Union, and the multiple unfair labor

practices it committed in attempting to prevent the Union from

winning the election, it was reasonable for the Board to

conclude that its misconduct was sufficiently persistent and

widespread to warrant a broad cease and desist order.

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Federated next contests the Board’s order that it supply the

Union with employees’ home contact details. See ALJ Decision

at 4 (ordering that Federated “supply to the Union every 6

months for 2 years, or until a certification after a fair election,

the names and addresses of its current unit employees, so that

the Union can help to counteract the effects of the[] violations

in its communications with employees.”). But it is long

established that requiring the employer to disclose employee

names and contact details to the union furthers NLRA objectives

“by encouraging an informed employee electorate and by

allowing unions the right of access to employees that

management already possesses.” NLRB v. Wyman-Gordan Co.,

394 U.S. 759, 767 (1969). Thus, this challenge fails.

Finally, Federated challenges the portion of the Board’s

Order directing that either a Federated management official, or

an agent of the NLRB in the presence of a Federated official,

read the notice of Federated’s unfair labor practices to its

employees. This Circuit has upheld such an order with respect

to the president of a corporation who the ALJ had found to have

“personally and repeatedly communicated to employees [an]

ominous threat” of plant closure as “the centerpiece of

[defendant corporation’s] intense anti-union campaign.” Conair

v. NLRB, 721 F.2d 1355, 1385-87 (D.C. Cir. 1983). As we

clarified in United Food & Commercial Workers v. NLRB, 852

F.2d 1344, 1348 (D.C. Cir. 1988), “[w]e are not unconcerned

about the ignominy of a forced public reading by an employer

and its potential for oppression.” (internal quotation omitted).

We will only “enforce such orders when the record . . .

indicate[s] [a] particularized need” for one. Id. (internal

quotation omitted). In the case at bar, as in Conair, the Board

found the fact that “many of the[] [NLRA] violations were

committed by high-level management officials[.]” ALJ Decision

at 3. The Board explained that part of the purpose of its order

that the Notice be read out loud was “so that employees will

19

fully perceive that [Federated] and its managers are bound by

the requirements of the [NLRA].” Id. at 4 (emphasis added).

Federated has not met its burden of rebutting the existence of a

particularized need for the public reading requirement. For that

reason, we decline to reverse that portion of the order.

For the foregoing reasons, the petition for judicial review is

denied.

HENDERSON, Circuit Judge, dissenting in part: I join my

colleagues in the majority except in two crucial respects.

Because our role in reviewing the orders of the National Labor

Relations Board (Board) requires us to do more than simply sign

off on its unfair labor practice findings, see, e.g., Crowley

Marine Servs., Inc. v. NLRB, 234 F.3d 1295, 1303 (D.C. Cir.

2000) (“[O]ur review is not ‘ “a mere rubber stamp substituting

judicial abdication for judicial review.” ’ ” (quoting Gen. Elec.

Co. v. NLRB, 916 F.2d 1163, 1168 (7th Cir. 1990) (quoting

NLRB v. Harvstone Mfg. Co., 785 F.2d 570, 574-75 (7th Cir.

1986)))) (Henderson, J., dissenting), or mechanically enforce its

remedies, see, e.g., Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35,

42 (D.C. Cir. 1980) (“[T]his court is a reviewing court and does

not function simply as the Board’s enforcement arm.”), I cannot

join the decision to uphold the Board’s finding that Federated

Logistics & Operations (Federated) committed an unfair labor

practice by threatening futility; nor do I agree with the Board’s

imposition of several “extraordinary” remedies. As the Board

offered neither a reasonable explanation nor one based on

substantial evidence in the record to support either, see, e.g.,

Gen. Elec. Co. v. NLRB, 117 F.3d 627, 630 (D.C. Cir. 1997), I

believe that the former constitutes a misdiagnosis—which

deprived Federated of its right to free expression protected by

the Act—and the latter amount to punitive rather than remedial

measures. I would therefore hold that Federated’s petition

should be granted in part and, accordingly, do not join sections

II.A and II.D of the majority opinion.

I.

Judicial review of the Board’s findings of unfair labor

practices is admittedly deferential but it is not “so deferential

that the court will merely act as a rubber stamp for the Board’s

conclusions.” Titanium Metals Corp. v. NLRB, 392 F.3d 439,

445 (D.C. Cir. 2004) (citing Pa. State Educ. Ass’n-NEA v.

NLRB, 79 F.3d 139, 148 (D.C. Cir. 1996)). Because the Board’s

findings of fact are, by statute, conclusive “if supported by

substantial evidence on the record considered as a whole,” 29

2

U.S.C. § 160(e), we will uphold them unless upon a review of

the entire record we conclude that they are not supported by the

required quotient of evidence “or that the Board acted arbitrarily

or otherwise erred in applying established law to the facts of the

case.” Int’l Union of Elec., Elec., Salaried, Mach. & Furniture

Workers v. NLRB, 41 F.3d 1532, 1536 (D.C. Cir. 1994) (internal

quotation marks & citations omitted); see also Stanford Hosp.

& Clinics v. NLRB, 370 F.3d 1210, 1212 (D.C. Cir. 2004) (“Our

review is limited to determining whether the Board’s findings of

fact are supported by substantial evidence and, if so, whether the

Board acted arbitrarily or otherwise erred in applying

established law to the facts of the case.”). “ ‘Substantial

evidence means “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” ’ ”

Evergreen Am. Corp. v. NLRB, 362 F.3d 827, 837 (D.C. Cir.

2004) (quoting MECO Corp. v. NLRB 986 F.2d 1434, 1436

(D.C. Cir. 1993) (quoting Richardson v. Perales, 402 U.S. 389,

401 (1971))). We do not review just the evidence supporting the

Board, however; we also review “anything in the record that

‘fairly detracts’ from the weight of th[at] evidence.” Gen. Elec.

Co., 117 F.3d at 630 (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)) (Tatel, J.); accord CitiSteel USA, Inc.

v. NLRB, 53 F.3d 350, 355 (D.C. Cir. 1995) (Board must

“provide . . . reasons for discounting the contrary evidence.”).

Even under this deferential standard, I disagree with the

majority that substantial record evidence supports the Board’s

finding that Federated’s managers unlawfully threatened

Federated’s employees that unionization would prove futile.

None of the statements made by vice presidents Joe Vella and

Kevin Hart—that bargaining would start from “zero,” that work

could be moved to another facility in the event of a strike and

that employees could lose their 401(k) plan following

unionization—supports the Board’s “threat” finding, whether

3

viewed independently or in the “totality of the circumstances.”1

Although the National Labor Relations Act (NLRA, Act), §§ 1

et seq., as amended, 29 U.S.C. §§ 151 et seq., makes it an unfair

labor practice for employers “to interfere with, restrain, or

coerce employees in the exercise of” their associational rights,

id. § 158(a)(1), it also protects the employer’s First Amendment

right to express its views, including reasonable predictions about

the consequences of unionization, so long as they “contain[] no

threat of reprisal or force or promise of benefit,” id. § 158(c).

“[A] ‘threat of reprisal’ means a ‘threat of retaliation’ and this

in turn means not a prediction that adverse consequences will

develop but a threat that they will be deliberately inflicted in

return for an injury—‘to return evil for evil.’ ” Crown Cork &

Seal Co. v. NLRB, 36 F.3d 1130, 1138 (D.C. Cir. 1994)

(emphases in original) (quoting NLRB v. Golub Corp., 388 F.2d

921, 928 (2d Cir. 1967) (Friendly, J.)).

Vella’s and Hart’s statements that bargaining with the Union

would start from “zero” gave an accurate and lawful, albeit

blunt, picture of the vagaries of the collective bargaining

process. See Joint Appendix (J.A.) 299 (“Mr. Hart stated that

we would start from zero and we would negotiate from that.

Any benefits we may have at this time could be jeopardized in

that proceeding.”); J.A. 312 (“[W]e could start from ground zero

. . . They said we’d be starting at zero. We might go up. We

1

While the majority does not mention manager Jody Beachy’s

statement to one employee (Kathy Lee Gay) that wages would remain

constant during negotiations with the Union, see Federated Logistics

& Operations, 340 NLRB No. 36, slip op. at 1 (2003), reprinted in

Joint Appendix (J.A.) 1; see also J.A. 347, I believe that the Board

failed to evaluate this statement in the context of Federated’s

pronouncement in early October that, while wages and benefits would

be “frozen” during negotiations, it nevertheless would continue to

make “ ‘routine’ past practice changes such as normal merit reviews,”

J.A. 60. See discussion infra at 5-6.

4

might end up getting less than what we’re making now.”); J.A.

354 (“I asked them how can they start off with zero . . . . They

said the union can do [sic].”). The statements neither implied

that Federated intended to bargain in bad faith nor threatened a

strategy of slashing wages and/or benefits in advance of

negotiations; they indicated only, and truthfully so, that what the

process held for the employees—“more, the same, or less,” J.A.

48; see also J.A. 95—was hard to predict at the outset. Their

statements, moreover, made clear that whatever the final result,

it would be the product of negotiations, not unilateral retaliatory

action.

Neither do I find the statements that unionization might trigger

a strike, a plant shut-down or loss of the employees’ 401(k) plan

unlawful. An employer walks a fine line in predicting the effect

of unionization on its business, see NLRB v. Gissel Packing Co.,

395 U.S. 575, 618-19 (1969), for its predictions must be

“carefully phrased on the basis of objective fact to convey an

employer’s belief as to demonstrably probable consequences

beyond [its] control” and not leave the impression that it “may

or may not take action solely on [its] own initiative for reasons

unrelated to economic necessities and known only to [it],” id. at

618. But “ ‘[m]ere references to the possible negative outcomes

of unionization,’ ” Flamingo Hilton-Laughlin v. NLRB, 148 F.3d

1166, 1174 (D.C. Cir. 1998) (quoting UARCO, Inc., 286 NLRB

55, 58 (1987); alteration in original), fall within section 8(c)’s

protection, 29 U.S.C. § 158(c). While Vella and Hart may have

walked the line, the evidence failed to demonstrate that they

crossed it. The Board concluded that “unsupported employer

predictions that a strike and then a plant shut down will follow

a union victory are objectionable and unlawfully coercive,”

Federated Logistics & Operations, 340 NLRB No. 36, slip op.

at 2 (2003) (emphasis added), but the ALJ nowhere found that

Federated intended to visit any of these “evils” on its employees,

only that they were possibilities. See id. at 13 (“[M]anagement

stated that they could shut the building down in 3 days and move

5

the operation elsewhere if negotiations were unsuccessful

. . . .”); id. (employees “ could lose their benefits and 401(k)

plans) (emphasis added); id. at 14 (“work could be moved in the

event of a strike”) (emphasis added); see also, e.g., J.A. 299 (“If

we were to go on strike . . . they could shut [the building] down,

move it elsewhere and just start back up again.”) (emphasis

added). Vella’s and Hart’s prediction that employees could lose

their 401(k) plan, moreover, was squarely based on fact—i.e.,

the terms of the Union’s contract at Federated’s Secaucus

facility, J.A. 62, 99. See Gissel Packing Co., 395 U.S. at 618.

Because the managers’ statements only alluded to “possible

negative outcomes of unionization,” Flamingo Hilton-Laughlin,

148 F.3d at 1174 (internal quotation marks omitted), the Board

erred “by converting a possibility into a certainty, then declaring

it a violation of the Act.” Gen. Elec. Co., 117 F.3d at 636; see

Flamingo Hilton-Laughlin, 148 F.3d at 1174 (vacating violation

because company president speculated about duration of

negotiations based on what he “foresaw”).

The Board itself acknowledged that statements like these “are

not per se unlawful,” Federated Logistics & Operations, 340

NLRB No. 36, slip op. at 1; see generally Shaw’s Supermarkets,

Inc. v. NLRB, 884 F.2d 34, 37 (1st Cir. 1989) (citing Board

orders that found “bargaining from scratch” language lawful

based on “factual context[]”), but must be evaluated “in context”

in order to assess

whether they “effectively threaten employees

with the loss of existing benefits and leave them

with the impression that what they may

ultimately receive depends in large measure

upon what the Union can induce the employer to

restore,” or—conversely—whether they indicate

that any “reduction in wages or benefits will

occur only as a result of the normal give and take

of collective bargaining.”

6

Federated Logistics & Operations, 340 NLRB No. 36, slip op.

at 1 (quoting Plastronics, Inc., 233 NLRB 155, 156 (1977) &

citing Capitol EMI Music, 311 NLRB 997, 1007-1008 (1993),

enfd. 23 F.3d 399 (4th Cir 1994)); see Federated Logistics &

Operations, 340 NLRB No. 36, slip op. at 2 ([T]he Board must

consider the impact of particular employer statements in the

context of surrounding circumstances . . . .”). The Board offered

a variety of reasons for discounting the “surrounding

circumstances” here, id., none of which I find reasonable.

Indeed, the Board began its analysis with a proposition that is

flatly contradicted by the administrative record: It found that

Vella’s and Hart’s statements “uttered on the eve of the

election” had “maxim[um] . . . coercive impact” because

Federated’s counterbalancing non-coercive statements were

made “weeks” earlier, id., but Federated distributed campaign

materials describing the “give and take” of the bargaining

process immediately before as well as after the two meetings at

which Vella and Hart made their predictions.2 The Board also

stated that “any lawful message in the PowerPoint presentation

by Vella and Hart to employees was counteracted by their

express statements that bargaining would start from ‘zero.’ ” Id.

This ipse dixit is a peculiar one as it contradicts the

2

Federated distributed a communication on October 2—the day of

the first employee meeting—asking its employees to consider whether

they “could . . . possibly get hurt from ‘give and take’ bargaining?”

J.A. 59. The next day, October 3, Federated distributed a

communication stating that “if the union wins your vote, then wages

and benefits become subject to ‘give and take’ bargaining.” J.A. 60.

The day of the second employee meeting, October 4, Federated

distributed a communication stating that “[u]nionization means that

the ‘give and take’ of bargaining will decide whatever happens,” J.A.

61, and followed up the next day with a communication stating, “You

can avoid the risks of ‘give and take’ bargaining . . . .” J.A. 63. The

election was not held until October 6. Federated Logistics &

Operations, 340 NLRB No. 36, slip op. at 1.

7

commonsense audience view of printed text and oral

presentation as complementary—not contradictory.

The Board also discounted the context in which Vella’s and

Hart’s statements were made by observing that, while “a

particular employer statement” may be “mitigated by other

employer statements made at different times or places[,] [a]n

employee might reasonably be influenced more by a coercive

statement than by a different noncoercive statement.” Id. As

discussed above, however, Vella’s and Hart’s statements were

not coercive to begin with, and, in my opinion, could not have

become so if considered in the larger context as required. See

infra notes 4 & 5. The Board made the further point that Vella’s

and Hart’s “coercive” statements “were not made in

circumstances free from other unfair labor practices.”

Federated Logistics & Operations, 340 NLRB No. 36, slip op.

at 2 (internal quotation marks & citation omitted). While

Federated’s separate unfair labor practices were without doubt

part of the larger context in which Vella’s and Hart’s statements

should have been considered, the Board did not explain how

they negated Federated’s repeated and consistent statements that

bargaining is a “ ‘give and take’ process” and that the “result

would be the product of good-faith bargaining.” Id.

In upholding the Board, the majority concludes that the

managers’ statements were coercive even if viewed in the

“totality of the circumstances” because “random” citations to

“neutral language” in the administrative record “do not a

coherent view make.”3 Maj. Slip Op. at 11. A quip does not a

“coherent view” make either, however, and if charges of cherry-

3

Given that the Board was obligated to consider the statements in

context, see discussion supra at 5-6, I find the majority’s pondering

whether the Board was “correct in doing so (and whether we should

adopt the Fifth Circuit’s totality-of-the-circumstances test)[]” beside

the point. See Maj. Slip Op. at 10.

8

picking the record are to be tossed about, my colleagues would

do well to duck. Taken as a whole the record does not reveal

Federated’s “neutral language” as mere platitudes within a larger

campaign to threaten employees if they unionize. See Maj. Slip

Op. at 11. Rather, in my view, the record is so full of such

“neutral language” that the picture it paints is one of a coherent

company campaign presenting a consistent and lawful message:

collective bargaining is a “give and take” process and, while the

company intends to bargain in good faith, the process carries

burdens as well as benefits.4

I also reject the majority’s observation that resolution of this

issue “c[o]me[s] down to a credibility determination between the

testimony of the managers as against that of three employees at

the meeting.” Maj. Slip Op. at 9. If that were the case, I would

join the majority as it is settled that “[w]e accept the ALJ’s

credibility determinations that are adopted by the Board ‘unless

they are patently unsupportable.’ ” Schaeff Inc. v. NLRB, 113

F.3d 264, 266 (D.C. Cir. 1997) (quoting NLRB v. Creative Food

Design Ltd., 852 F.2d 1295, 1297 (D.C. Cir. 1988)) (Henderson,

J.). But credibility is not the issue. The issue is whether a

reasonable person would consider the managers’ statements to

be unlawful threats of futility if unionization were to occur. See

Evergreen Am. Corp., 362 F.3d at 837. I say no.

4

See, e.g., J.A. 43 (“Bargaining is ‘give and take’ which means that

you could get more, the same, or less. No one can predict what you

may get or lose with unionism.”) (emphasis added); J.A. 46

(“ ‘Collective bargaining’ involves ‘give and take.’ Both union and

management must bargain in good faith . . . .” ); J.A. 56 (if Union

were to win, “the only thing it ‘wins’ is the right to participate in ‘give

and take’ bargaining”) J.A. 57 (“[T]he ‘give and take’ bargaining

process can bring risks, as well as rewards.”); see also infra note 5.

9

II.

The Board’s remedial power under section 10 of the NLRA,

which authorizes the Board upon finding an unfair labor practice

to order the violator “to cease and desist from such unfair labor

practice, and to take such affirmative action . . . as will

effectuate the policies of [the Act],” 29 U.S.C. § 160(c); see

United Food & Commercial Workers Int’l Union AFL-CIO v.

NLRB, 852 F.2d 1344, 1347 (D.C. Cir. 1988), “is a broad

discretionary one, subject to limited judicial review.”

Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216

(1964). Because the Board “draws on a fund of knowledge and

expertise all its own,” Gissel Packing Co., 395 U.S. at 612 n.32,

and following the United States Supreme Court’s lead, see

Fibreboard Paper Prods. Corp., 379 U.S. at 216, we have

repeatedly recognized that we owe Board remedial orders

“special respect” and, consequently, our review of them is

limited. Williams Enters., Inc. v. NLRB, 956 F.2d 1226, 1232

(D.C. Cir. 1992); see, e.g., Cobb Mech. Contractors, Inc. v.

NLRB, 295 F.3d 1370, 1375 (D.C. Cir. 2002) ([T]he Board is

accorded broad discretion in fashioning an appropriate

remedy.”); Capital Cleaning Contractors, Inc. v. NLRB, 147

F.3d 999, 1009 (D.C. Cir. 1998) (“[A] reviewing court must give

special respect to the Board’s choice of remedy . . . .”);

Teamsters Local 115 v. NLRB, 640 F.2d 392, 399 (D.C. Cir.

1981) (“The Board’s choice of remedies is entitled to a high

degree of deference.”); see also Synergy Gas Corp. v. NLRB, 19

F.3d 649, 654 (D.C. Cir. 1997) (“Our review, both in theory and

in practice, is quite deferential.”) (Silberman, J., concurring).

Nevertheless, we remain a court of review—limited though our

role may be—and not merely the Board’s Article III

“enforcement arm.” Peoples Gas Sys., Inc., 629 F.2d at 42.

Accordingly, as we have said, “[i]t is our responsibility to

examine carefully both the Board’s findings and its reasoning,

to assure that the Board has considered the factors which are

relevant to its choice of remedy, selected a course which is

10

remedial rather than punitive, and chosen a remedy which can

fairly be said to effectuate the purposes of the Act.” Id. In

short, the Board’s remedy must “be tailored to the unfair labor

practice it is intended to redress,” Sure-Tan, Inc. v. NLRB, 467

U.S. 883, 900 (1984); see Cobb Mech. Contractors, Inc., 295

F.3d at 1375, and when it comes to “extraordinary” remedies,

the Board is obligated to explain why conventional ones do not

suffice. See Charlotte Amphitheater Corp. v. NLRB, 82 F.3d

1074, 1079 (D.C. Cir. 1996).

The Board tells us that it reserves extraordinary remedies for

cases involving unfair labor practices that are “so numerous,

pervasive, and outrageous” that “special” remedies are necessary

to “dissipate fully the coercive effects of the unfair labor

practices found.” Federated Logistics & Operations, 340 NLRB

No. 36, slip op. at 2 (internal quotation marks & citation

omitted). This is such a case, it concluded, because Federated

engaged in “extensive and serious unfair labor practices,” “some

of” its “unlawful conduct pervaded the unit,” its “unfair labor

practices tended to have a long-term coercive impact on the

unit,” and “many of the[] violations were committed by high-

level management officials.” Id. at 3. Consequently, it imposed

three “extraordinary” remedies to eliminate the effects of

Federated’s assorted unfair labor practices—(1) the company is

to cease and desist “from committing the specific violations

found and from violating the Act ‘in any other manner,’ ” (2) the

company is to supply the names and addresses of its employees

to the Union every six months for two years and (3) a

management official or Board agent is to read the notice of

violations publicly. See id. at 3-4. However broad its discretion

or hefty its expertise, the Board is required to match the cure to

the ill; in selecting the remedies noted, however, the Board has

vastly overmedicated.

The Board’s remedy must be “based on the nature and extent

of the violations it finds,” NLRB v. Blake Constr. Co., 663 F.2d

11

272, 285 (D.C. Cir. 1981); see NLRB v. Express Publ’g Co., 312

U.S. 426, 433 (1941) (Board’s authority regarding unfair labor

practices does not include “authority to restrain generally all

other unlawful practices which it has neither found to have been

pursued nor persuasively to be related to the proven unlawful

conduct”), and, thus, isolated unfair labor practices do “not

justify an injunction broadly to obey the statute and thus subject

the [violator] to contempt proceedings if he shall at any time in

the future commit some new violation unlike and unrelated to

that with which he was originally charged.” Id. at 435-36.

There is, however, an equally well-established exception to this

rule: “substantial evidence of a ‘generalized scheme’ to violate

the Act” would support the sort of broad cease-and-desist order

imposed here. Blake Constr. Co., 663 F.2d at 285 (quoting San

Francisco Local Joint Executive Bd. of Culinary Workers v .

NLRB, 501 F.2d 794, 802 (D.C. Cir. 1974)). But the test is a

stringent one as “ ‘[s]uch an order is warranted only when a

[violator] is shown to have a proclivity to violate the Act, or has

engaged in such egregious or widespread misconduct as to

demonstrate a general disregard for the employees’ fundamental

statutory rights.’ ” Blake Constr. Co., 663 F.2d at 285 (quoting

Hickmott Foods, Inc., 242 NLRB No. 177 (1979)) (emphasis

added; first alteration in original). Because Federated was a first-

time violator, see Blake Constr. Co., 663 F.2d at 285-86; but see

Teamsters Local 115, 640 F.2d at 399 (“[A]n employer who

strikes the first blow hard enough may not need to strike

another.”), the Board declined to find that the company

exhibited any “proclivity” to violate the Act, concluding instead

that its “misconduct was sufficiently egregious and widespread

to demonstrate a general disregard for the employees’ statutory

rights.” Federated Logistics & Operations, 340 NLRB No. 36,

slip op. at 4 n.9. In so concluding, however, the Board failed to

take account of (or explain away) the substantial record

evidence demonstrating that, even as it committed unfair labor

practices, Federated contemporaneously took actions designed

12

to respect its employees’ rights.5 Nor did the Board, in light of

the unexceptional nature of Federated’s unfair labor practices

and its counterbalancing good conduct, explain how Federated’s

misconduct was of the kind and degree that the Board has in the

past found sufficient to support a cease-and-desist order. 6 The

Board observed, and the majority today repeats, see Maj. Slip

Op. at 17, that Federated committed “extensive and serious

unfair labor practices,” Federated Logistics & Operations, 340

NLRB No. 36, slip op. at 3, but we have made clear that it is not

enough for the Board to justify an extraordinary remedy “simply

by reciting the employer’s unfair labor practices and

commenting on their gravity.” Charlotte Amphitheater, 82 F.3d

at 1079.

Relying on two cases from outside our circuit, the majority

concludes that “[g]iven the scope of Federated’s

communications offensive against the Union, and the multiple

unfair labor practices it committed in attempting to prevent the

5

See J.A. 41-63 (written communications to employees); J.A. 88-

106 (PowerPoint presentation); see also discussion supra note 4. In

its information campaign, Federated consistently stressed that it

intended to respect its employees’ views on unionization, see J.A. 41,

42, 43, 46, 48, 49, 55, 57, 60, 63, 89, 92, 103, 105, 106, and that, if the

Union won, bargaining would be “give and take,” J.A. 43, 46, 48, 56,

59, 60, 61-63, 94, 100, and pursued in good faith, see J.A. 46, 56, 57,

95, and that it would not take retaliatory action, see J.A. 55, 56, 57, 62.

6

See, e.g., Audubon Regional Med. Ctr., 331 NLRB 374 (2000)

(extraordinary remedies to lessen effects of employer’s (1)

discriminatory rule enforcement; (2) threats to close plant, cut jobs and

benefits, discriminate and discipline; (3) refusal to negotiate with

union; (4) attempts to discourage union support by announcing wage

increases and new benefits; and (5) discrimination against employees);

Fieldcrest Cannon, Inc., 318 NLRB 470, 473-474 (1995), enfd., 97

F.3d 65, 73 (4th Cir. 1996) (employer “adopted a scorched earth, take-

no-prisoners approach”).

13

Union from winning the election, it was reasonable for the

Board to conclude that its misconduct was sufficiently persistent

and widespread to warrant a broad cease and desist order.” Maj.

Slip Op. at 17. Neither of the two cases, see Coil-A.C.C., Inc. v.

NLRB, 712 F.2d 1074, 1076 (6th Cir. 1983); NLRB v. Union

Nacional de Trabajadores, 540 F.2d 1, 11 (1st Cir. 1976), nor

one of ours that upheld a cease-and-desist order, see Blake

Constr. Co., 663 F.2d at 285-86, supports the majority inasmuch

as their facts are so markedly different. In Coil A.C.C., Inc. v.

NLRB, the Sixth Circuit held that the Board was “clearly

justified” in finding that the employer “manifested a general

disregard for the fundamental statutory rights of its employees”

because its owner personally and dramatically confronted two

employees about their union sympathies and on three occasions

“forewarned that he would cease operations at the plant and

renew business operations elsewhere if necessary before he

would permit unionism.” 712 F.2d at 1075-76; but see id. at

1077-78 (Krupansky, J., concurring in part & dissenting in part).

The First Circuit’s decision in NLRB v. Union Nacional de

Trabajadores involved misconduct of an exceptionally

egregious nature—including multiple violent assaults, see id. at

6-9 and numerous death threats, see, e.g., id. at 7 (“ ‘This is

Union Nacional and we kill people.’ ”), against

management—which supported a finding not at issue here. See

id. at 11. There, the court concluded that the administrative

record “amply support[ed] the Board’s conclusions that the

union has demonstrated a proclivity” to violate the Act, not only

based on its numerous and flagrant violations but also because

“[i]ts agents have stated, both in the course of their unlawful

activities and in the hearings before the Board, that they do not

regard themselves as subject to the authority of the Act and that

they feel no obligation to conform their conduct to its

requirements.” Id. (emphasis added).

Our own precedent also stands in strong contrast. In Blake

Constr. Co., we explained that the employer’s efforts to avoid

14

negotiating contract pay rates for new union members, which

“culminat[ed] in a dramatic, albeit transparent, turnover of all

company activities to an alter ego, solely to abrogate its

obligations under the Act[,] unquestionably” manifested a

general disregard for its employees’ rights. 663 F.2d at 285.

“This maneuver was exacerbated,” the court added, by the

employer’s approach to individual bargaining with union

employees, which entailed “confronting the employees with the

Solomonic dilemma of choosing between lower take home pay

or slightly higher take home pay which was still appreciably less

than the employees’ current rates of pay and did not include

necessary benefits.” Id. at 285-86. The court concluded by

observing that “[t]he [employer’s] conduct . . . and the lengths

to which it went to perpetuate that conduct are reminiscent more

of the pre-National Labor Relations Act era of industrial warfare

than of the latter Twentieth Century.” Id. at 286. Federated’s

unfair labor practices hardly evoke the days of “industrial

warfare.”

The Board likewise failed to justify the need for the two

additional extraordinary remedies it prescribed. As the Board

noted, Federated must furnish the Union with a list of employee

names and addresses before the next election. Federated

Logistics & Operations, 340 NLRB No. 36, slip op. at 4 n.10.

But to ensure “that [the Union] can present its message to

employees outside the workplace in an atmosphere free from

coercion,” id., the Board also ordered Federated to supply the

names and addresses of its employees to the Union every six

months for two years. Id. at 4. The Board nowhere explained

why such a remedy was necessary—presumably—to counteract

employees’ fear of discussing unionization at the Tampa facility.

See, e.g., Excel Case Ready, 334 NLRB 4, 5 (2001) (ordering

employer to provide union with employees’ names and

addresses within one year on finding “usual Board remedies are

not sufficient to undo the effects of the [employer’s] illegal

activities” as it “systematically embarked on a campaign to rid

15

its work force of leading union adherents”); Blockbuster

Pavilion, 331 NLRB 1274, 1275 (2000) (ordering employer to

provide union with employees’ names and addresses within one

year on finding it “essential to ensuring that employees may

freely exercise their Section 7 rights” as “[t]he employees’ prior

organizational efforts were aborted by the [employer’s] coercive

tactics calculated to make employees afraid to associate

themselves with the Union.”). The majority nevertheless

accepts the Board’s remedy, reasoning that Federated’s

challenge fails because “it is long established that requiring the

employer to disclose employee names and contact details to the

union furthers NLRA objectives ‘by encouraging an informed

employee electorate and by allowing unions the right of access

to employees that management already possesses.’ ” Maj. Slip

Op. at 18 (quoting NLRB v. Wyman-Gordan Co., 349 U.S. 759,

767 (1969)). But another longstanding doctrine requires us to

scrutinize the Board’s remedy to ensure that it is “tailored to the

unfair labor practice it is intended to redress.” Sure-Tan, Inc.,

467 U.S. at 900; see Cobb Mech. Contractors, Inc., 295 F.3d at

1375. Here, the Board failed to support the conclusion that

necessarily underlies this remedy—i.e., the Union could not

communicate effectively with the employees—with record

support. See Federated Logistics & Operations, 340 NLRB No.

36, slip op. at 3-4; see also id. at 8 (“[T]he record does not

establish that the Union was unable to communicate with the

employees.”) (Battista, Chrmn., dissenting in part).

The Board’s requirement that the notice of violations be read

publicly by a management official or Board agent contains a

similar defect. We have consistently “viewed public reading

requirements with . . . suspicion,” Teamsters Local 115, 640

F.2d at 402, recognizing the “ ‘ignominy of a forced public

reading’ by an employer and its potential for oppression.”

United Food, 852 F.2d at 1348 (quoting Int’l Union of Elec.

Radio & Mach. Workers v. NLRB, 383 F.2d 230, 234 (D.C. Cir.

1967)). Accordingly, we will not enforce such an order absent

16

record evidence indicating a “particularized need” for it,

Teamsters Local 115, 640 F.2d at 403; see United Food, 852

F.2d at 1348; cf. Ishikawa Gasket Am., 337 NLRB 175, 176

(2001) (“The reading of the notice by a respondent is an

‘extraordinary’ or ‘special’ remedy that will be imposed only

where required by the particular circumstances of a case.”)

(emphasis added); the touchstone of the “particularized need”

requirement, as our cases make clear, is evidence of a

“substantial link[]” between the public reading and the unfair

labor practices. United Food, 852 F.2d at 1348; see Teamsters

Local 115, 640 F.2d at 403-04; Conair Corp. v. NLRB, 721 F.2d

1355, 1385-87 (D.C. Cir. 1983); cf. United Food, 852 F.2d at

1349 (“unique and specific facts of a case will more often than

not provide the measure that allows a remedy in one case and

precludes it in another”). By requiring a correlation between the

misconduct and the public reading, we ensure that the latter is a

remedy and not a punishment. Teamsters Local 115, 640 F.2d

at 403 (concluding that “the negative aspects of the order

overwhelm the marginal benefit”); see United Food, 852 F.2d at

1348-49. If there was a “substantial link[]” here, United Food,

852 F.2d at 1348, the Board failed to identify it. In addition to

the public reading, the Board required that the notice of

violations be posted in three languages at the Tampa facility.

See Federated Logistics & Operations, 340 NLRB No. 36, slip

op. at 5. The Board Chairman, in dissent and, in my view,

correctly, criticized the Board’s support for the “particularized

need” for a public reading, see id. at 8 (Battista, Chrmn.,

dissenting in part); the Board merely noted that violations were

committed by “high-level management officials” and posited

that the forced reading was needed “so that employees [would]

fully perceive that [Federated] and its managers are bound by

the requirements of the Act.” Id. at 3-4. As the Board has

shown no particularized need for a public reading “to dispel the

atmosphere of intimidation created in large part by [Federated’s]

own statements and actions,” Conair, 721 F.2d at 1386-87, the

17

public reading appears, at least to me, wholly punitive. See

Capital Cleaning Contractors, Inc., 147 F.3d at 1009 (remedy

must be “truly remedial and not punitive”). While the majority

cites the Teamsters Local 115 rule that a public reading

requirement will not be enforced absent a “particularized need,”

640 F.2d at 403; see United Food, 852 F.2d at 1348, it in truth

applies an unprecedented and, I believe, incorrect standard,

placing the burden on Federated to “rebut[] the existence of a

particularized need for the public reading requirement.” Maj.

Slip Op. at 19. Because the Board failed to meet the burden it

bears to explain, based on substantial record evidence, how the

“extraordinary” remedies are tailored to redress Federated’s

specific unfair labor practices, see, e.g., United Food, 852 F.2d

at 1347, I would vacate the remedies. See Douglas Foods Corp.

v. NLRB, 251 F.3d 1056, 1068 (D.C. Cir. 2001).

III.

For the foregoing reasons, I am convinced that the Board

provided neither a reasonable explanation nor one based on

substantial record evidence to support its conclusion that

Federated committed an unfair labor practice by threatening

futility if unionization took place. The same goes for the three

“extraordinary” remedies it imposed. Because the majority has

done no better today in upholding the Board on these two

matters, I respectfully dissent from sections II.A and II.D of the

majority opinion.