Cogburn Health Center, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 6, 2006 Decided February 24, 2006

No. 04-1430

COGBURN HEALTH CENTER, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with

No. 05-1017

On Petition for Review and

Cross-Application for Enforcement

of an Order of the National Labor Relations Board

Annette A. Idalski argued the cause for petitioner. With her

on the briefs was Kurt A. Powell. Scot A. Hinshaw and Susan F.

Wiltsie entered appearances.

William M. Bernstein, Senior Attorney, National Labor

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

the briefs were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

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Deputy Associate General Counsel, Fred B. Jacob, Supervisory

Attorney, and Gregory P. Lauro, Attorney.

Before: SENTELLE and HENDERSON, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Cogburn Health Center,

Inc. (also referred to by the Board as Cogburn Healthcare

Center, Inc.) (“Cogburn” or “Company”), a nursing home in

Mobile, Alabama, petitions this court for review of an order of

the National Labor Relations Board (“Board”), and the Board

cross-applies for enforcement. On July 19, 1996, the Board

held a secret-ballot election to determine whether the employees

in a designated bargaining unit at Cogburn desired to be

represented by the United Food and Commercial Workers

Union, Local 1657, AFL-CIO (“Union”). The election results

indicated that 52 employees cast votes in favor of the Union, and

72 against. The Union then filed unfair labor practice (“ULP”)

charges with the Board, and a complaint was issued. The

complaint charged that a majority of the employees in an

appropriate unit at Cogburn had selected the Union as their

bargaining representative by signing authorization cards; that, in

April 1996, Cogburn had rejected the Union’s request to bargain

on behalf of the employees; that Cogburn then engaged in a

campaign of ULPs designed to undermine the Union’s support;

that, because of the serious nature of Cogburn’s ULPs, the

possibility of conducting a fair rerun election was only slight;

and that, in light of this situation, the rights of the employees

would be best served by the Board’s issuance of a bargaining

order. The Board found that Cogburn had indeed engaged in

widespread violations of § 8(a)(1) of the National Labor

Relations Act (“Act”), 29 U.S.C. § 158(a)(1) (2000), including,

but not limited to, unlawful surveillance, interrogations, threats,

3

and prohibitions on wearing Union insignias. The Board also

found that the Company had discharged five Union supporters

during the organizing campaign in violation of §§ 8(a)(1) and

(3) of the Act, and terminated a sixth employee because of her

Union activities and sympathies, and also because she gave

testimony for the Union in a representation proceeding, in

violation of §§ 8(a)(1), (3), and (4) of the Act. See Cogburn

Healthcare Ctr., Inc., 335 N.L.R.B. 1397 (2001).

To remedy these violations, the Board ordered Cogburn,

inter alia, to cease and desist from engaging in any further

unfair labor practices, post appropriate notices to advise

employees of their rights under the Act, and reinstate the

unlawfully discharged employees and make them whole for

their losses. The Board also issued a Gissel bargaining order,

see NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and held

that Cogburn violated §§ 8(a)(1) and (5) of the Act by refusing

to bargain with the Union on April 18, 1996, when the Union

requested bargaining based on a card majority.

Substantial evidence supports the Board’s determinations

that Cogburn committed the cited ULPs in violation of

§§ 8(a)(1), (3), and (4) of the Act. We therefore enforce the

Board’s order with respect to these charges. We reverse the

Board’s Gissel bargaining order, however, because the Board

failed to credit Cogburn’s properly raised evidence of “changed

circumstances” that arose during the more than three years when

the initial ULP case was pending disposition by the Board. A

few more years passed during which Cogburn’s motions for

reconsideration languished before the Board. Ten years have

now elapsed since Cogburn’s alleged refusal to bargain in April

1996, and there has been substantial turnover in the employee

and management ranks at Cogburn during this period. In the

face of this record, the Board has offered no viable justification

for an affirmative bargaining order. Under the plain law of this

circuit, we reverse the Board’s imposition of a Gissel bargaining

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order. Accordingly, we grant in part and deny in part the

Board’s cross-petition for enforcement, and we grant in part and

deny in part Cogburn’s petition for review. The Board’s order

will be enforced with respect to all disputed issues, save for the

Gissel bargaining order.

I. BACKGROUND

A. The Union’s Organizing Campaign

During the time period relevant to our inquiry, Cogburn was

a family-owned and operated nursing home providing medical

care in Mobile, Alabama. In October 1995, the Union began a

campaign to organize Cogburn’s full-time and regular part-time

service and maintenance employees. Over the course of the

following six-to-nine months, Union organizers distributed

leaflets and authorization cards to Cogburn employees who were

exiting and entering Company property. On April 18, 1996,

after collecting signed authorization cards from a majority of the

service and maintenance employees, the Union unsuccessfully

sought to bargain with Cogburn on behalf of the employees.

The Union also petitioned the Board for a representation

election covering the employees. The Board scheduled an

election for July 1996.

Throughout the spring and early summer of 1996, the

Company engaged in a concerted campaign to undermine the

Union’s support. Cogburn hired a “private police force”

consisting of approximately 35 off-duty Mobile city police

officers and installed surveillance equipment directed at the

front of the facility where the Union organizers were rallying

support. The Company also required its employees to attend

mock collective bargaining sessions, at which they were

instructed to follow a script in which the Cogburn representative

rejected every Union offer. Several Company supervisors and

Cogburn co-owner and Vice President, Steve Roberts, conducted

a series of “interrogations” – conversations during which they

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questioned employees about Union activities and their and other

employees’ feelings about the Union. Finally, during the course

of the organizing campaign, six well-known Union supporters

were discharged for their Union activities and sympathies.

The Board held a secret-ballot election on July 19, 1996.

Of the approximately 135 eligible voters, 52 cast votes in favor

of the Union, and 72 against. The Union then filed ULP charges

with the Board. After a series of hearings held between March

and September 1997, an Administrative Law Judge (“ALJ”)

found that Cogburn had committed numerous violations of the

Act. The ALJ recommended, inter alia, that the Company be

required to reinstate and grant backpay to the six discharged

employees and to bargain with the Union as the exclusive

representative of the employees. Cogburn Healthcare Ctr., 335

N.L.R.B. at 1425-26.

B. The Board’s Decisions

The Board finally issued a decision on September 27, 2001,

over three years after the ALJ’s decision. The Board found, in

agreement with the ALJ, that Cogburn committed multiple

violations of § 8(a)(1) of the Act in response to the Union’s

organizing campaign. These violations included: coercively

interrogating employees; threatening employees with loss of

benefits, closure of the facility in the event of unionization, and

refusal to rehire any employee who engaged in protected strike

activity; telling employees that the employer would not have to

bargain with the Union; threatening in simulated bargaining

sessions that unionization would be futile; offering to increase

wages and benefits if the Union promised not to file additional

unfair labor practice charges or objections to the representation

election; engaging in surveillance of employee Union activity

with video cameras and a private police force; prohibiting

employees from wearing clothing reflecting Union membership

without permission; and permitting employees who opposed the

Union to leave their work stations and handbill while prohibiting

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prounion employees from doing so. Id. at 1399-1400. The

Board also accepted the ALJ’s finding that Cogburn violated

§§ 8(a)(1) and (3) of the Act by discharging employees Hill,

Husband, Wiggins, Langham, and Kirk, and violated §§ 8(a)(1),

(3), and (4) of the Act by discharging employee Collins because

of her Union sympathies and her testimony for the Union at a

Board representation hearing. See id. at 1397.

The Board ordered Cogburn to cease and desist from the

unfair labor practices found and from interfering with,

restraining, or coercing employees in the exercise of the rights

guaranteed by § 7 of the Act, 29 U.S.C. § 157 (2000).

Affirmatively, the Board ordered Cogburn, inter alia, to offer

reinstatement to Hill, Husband, Wiggins, Langham, Kirk, and

Collins, and make them whole for any loss of earnings and

benefits they suffered as a result of their unlawful discharges.

The Board also found that the pervasiveness of Cogburn’s unfair

labor practices placed this case in Gissel’s “category II,” and

thus rendered a fair rerun election unlikely. Cogburn

Healthcare Ctr., 335 N.L.R.B. at 1398-99; see Gissel, 395 U.S.

at 614 (describing category II cases as “less extraordinary cases

marked by less pervasive practices which nonetheless still have

the tendency to undermine majority strength and impede the

election processes”). The Board therefore directed that the July

19 election be set aside, and that Cogburn recognize the Union

and bargain upon request. Cogburn Healthcare Ctr., 335

N.L.R.B. at 1403. In support of the Gissel bargaining order, the

Board found that Cogburn violated §§ 8(a)(1) and (5) of the Act

by refusing to bargain with the Union on April 18, 1996, when

the Union demanded recognition and bargaining based on

authorization cards from a majority of the employees in the

designated unit. Id. at 1397.

On November 2, 2001, soon after the Board’s order issued,

Cogburn moved to reopen the record, citing evidence of

“changed circumstances” that rendered the imposition of a

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bargaining order unnecessary. Specifically, Cogburn alleged

that the long delay between the unfair labor practices in 1996

and the Board’s decision in 2001, as well as significant

employee and management turnover, made it clear that a

bargaining order was no longer justified.

On June 21, 2004, two and a half years after Cogburn filed

its motion, the Board, with one member dissenting, denied the

Company’s motion to reopen the record. The Board first noted

that Cogburn failed to comply with § 102.48(d)(1) of the

Board’s rules, which requires parties to state “‘why [the

evidence] was not presented previously.’” Cogburn Healthcare

Ctr., Inc., 342 N.L.R.B. No. 11, 2004 WL 1413262, at *2 (June

21, 2004) (quoting 29 C.F.R. § 102.48(d)(1)) (alteration in

Board’s order). The Board questioned why Cogburn “failed to

show that some or all of [its] evidence . . . was not available

during the [three-year] period that the case was pending before

the Board on exceptions.” Id. Without such an explanation, the

Board concluded that Cogburn’s motion “was untimely made.”

Id.

In addition to the alleged procedural flaw in Cogburn’s

motion, the Board also found that Cogburn failed to demonstrate

how its additional evidence “‘would require a different result.’”

Id. at *3 (quoting 29 C.F.R. § 102.48(d)(1)). The Board

reiterated its “established policy” that the propriety of a

bargaining order is assessed only “as of the time that the

[employer] committed the violations,” and not at the time of the

Board’s order. Id. The Board also pointed out that, even taking

into account the post-violation “changed circumstances” alleged

by Cogburn, two supervisors found to have committed various

unfair labor practices were still employed by the Company at the

time of Cogburn’s motion, and the Company did not claim “that

there has been any significant change in the family ownership

group, . . . other than the death of [former co-owner and Vice

President,] Steve Roberts.” Id. Finally, the Board declared that

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the “passage of time does not render a bargaining order

inappropriate.” Id.

On August 5, 2004, Cogburn filed a second motion for

reconsideration, claiming that additional employee and

management turnover and the passage of time justified vacating

the Board’s bargaining order. The Board denied Cogburn’s

motion. The Company then filed a timely petition for review

and the Board filed a cross-application for enforcement of its

order.

II. ANALYSIS

A. Unfair Labor Practices

The Board’s findings that Cogburn committed the cited

violations of §§ 8(a)(1), (3), and (4) are “‘supported by

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

Palace Sports & Entm’t, Inc. v. NLRB, 411 F.3d 212, 220 (D.C.

Cir. 2005) (quoting 29 U.S.C. § 160(e)-(f) (2000)). The ALJ’s

discussion of the evidence, proposed findings, and

recommended remedies, nearly all of which were adopted by the

Board, are clearly unassailable under the applicable standard of

review. We therefore have no grounds upon which to second-

guess the Board’s determinations with respect to the §§ 8(a)(1),

(3), and (4) ULPs.

B. The Gissel Bargaining Order

1. Timeliness of Cogburn’s Motion for Reconsideration

Shortly after the Board issued its decision in September

2001, Cogburn moved to reopen the record. The Company

argued that the Board should reconsider its decision to impose

a Gissel bargaining order due to “changed circumstances” that

arose during the several years when the ULP case was pending

disposition. The Board denied the Company’s motion largely on

the ground that it was untimely. Cogburn contends that the

Board erred in refusing to address its motion and credit its

9

evidence of changed circumstances on this procedural ground.

We review the Board’s decision not to reopen the record for an

abuse of discretion. E. Carolinas Broad. Co. v. FCC, 762 F.2d

95, 103 (D.C. Cir. 1985).

Citing its regulations, the Board contends that Cogburn

neglected to “‘state [why] the additional evidence sought to be

adduced . . . was not presented previously.’” Br. for NLRB at

56 (quoting 29 C.F.R. § 102.48(d)(1)). The Board’s finding on

this score is simply wrong. In its motion to the Board, the

Company stated:

Simply put, Cogburn cannot be expected to have presented

evidence of substantial employee turnover and management

changes which did not exist when this matter initially was

presented to the Board, more than three (3) years ago.

Indeed, the longer the Board delayed in issuing its decision,

the more changes occurred during the day to day operations

at Cogburn. As such, Cogburn now should be permitted to

introduce evidence of changed circumstances.

Cogburn Healthcare Center Inc.’s Request to Reopen the Record

and for Reconsideration, Cogburn Healthcare Ctr., Inc. (Nov.

1, 2001) at 8, Joint Appendix (“J.A.”) 30 (hereinafter “Cogburn

Motion”). It is plain that Cogburn explained that it did not

present evidence of changed circumstances when it filed its

1998 exceptions to the Board because those changes took place

over the ensuing three years.

The Board argues that Cogburn could have alerted the

Board to the “changed circumstances” during the three-year

interval between the ALJ’s decision and the Board’s order. To

support this claim, the Board relies on the decision in NLRB v.

U.S.A. Polymer Corp., 272 F.3d 289 (5th Cir. 2001). The Fifth

Circuit noted in Polymer that “[t]he Board’s procedural rules

permit an employer to submit a motion to reopen the record after

the ALJ’s decision but before the Board has ruled.” Id. at 295.

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The decision added that “[t]he Board is entitled to assume, in the

face of the parties’ silence, that the facts as initially presented

continue to adequately describe the employer’s workforce.” Id.

at 296. But Polymer also makes it clear that “there is no clear

procedural vehicle for such a motion.” Id. at 295. In our view,

this last point is the most telling. Nothing in the Board’s rules

required Cogburn to advise the Board of every changed

circumstance in its business operation and workforce between

the date of the ALJ’s decision and the Board’s final disposition

of the case. And we will not infer such a requirement.

The changed circumstances here were gradual, incremental,

and cumulative. There was no single event at Cogburn which,

alone, gave clear evidence of “changed circumstances.” Absent

a Board rule requiring it, Cogburn had no reason to think that it

was obliged to file a motion on every occasion of employee

turnover. Cogburn acted reasonably under the circumstances

and the Board abused its discretion in rejecting Cogburn’s

motion as untimely.

2. The Board’s Treatment of Cogburn’s Evidence of

“Changed Circumstances”

Despite deeming Cogburn’s motion “untimely,” the Board

nonetheless went on to consider Cogburn’s claim that “changed

circumstances” now “require a different result,” or, more

precisely, a different remedy. In its motion, Cogburn asserted

that a Gissel bargaining order was no longer necessary, because,

in the five years since the organizing campaign and election,

there had been substantial changes at the Company. Examples

of these changes included the following information: (1) only

44% of Cogburn’s 169 designated bargaining unit employees in

2001 were employed during the Union election campaign; (2) of

the 82 employees that signed authorization cards, only 25 were

still employed in 2001; (3) there had been significant

management turnover, including the death of the Company’s co-

owner and Vice President, Steve Roberts, who was identified by

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the Board as a major perpetrator of Cogburn’s ULPs, and the

replacement of Company co-owner and Administrator, Suzanne

Hughes, who was also responsible for various ULPs; and (4)

subsequent to the ALJ’s decision in 1998, no ULP charges had

been filed. See Cogburn Motion at 2, 5-6, J.A. 24, 27-28. Based

on these developments and the long passage of time between the

alleged ULPs and the issuance of the bargaining order, Cogburn

argued that it was now possible for the Board to hold a fair and

impartial election. Id. at 8, J.A. 30.

This court has, on numerous occasions, directed the Board

to provide a reasoned analysis when considering the imposition

of a bargaining order. See, e.g., Douglas Foods Corp. v. NLRB,

251 F.3d 1056, 1065 (D.C. Cir. 2001); Vincent Indus. Plastics,

Inc. v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000); Flamingo

Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1170 (D.C. Cir.

1998); Avecor, Inc. v. NLRB, 931 F.2d 924, 937-39 (D.C. Cir.

1991). The required analysis must contain “an explicit

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

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

employees to choose their bargaining representatives; and (3)

whether alternative remedies are adequate to remedy the

violations of the Act.” Vincent Indus., 209 F.3d at 738.

Furthermore – and most relevant here – we have made it clear

that the Board must consider the appropriateness of a bargaining

order at the time the order is issued. See Charlotte

Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1079 (D.C. Cir.

1996); Avecor, 931 F.2d at 937.

The Board may have undertaken a thorough Gissel analysis

with respect to the information it had at the time of its original

order in 2001. See Cogburn Healthcare Ctr., 335 N.L.R.B. at

1398-1401. But its analysis failed when Cogburn proffered

evidence of “changed circumstances.” In response to Cogburn’s

motion to reopen the record, the Board stated:

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Although [Cogburn] has recited changed circumstances as

grounds for rescinding the Gissel order, the Board’s

established policy is to assess the propriety of a bargaining

order as of the time that the respondent committed the

violations. We therefore conclude that [Cogburn]’s motion

does not comply with the Board’s Rules.

Cogburn Healthcare Ctr., 2004 WL 1413262, at *3. The

Board’s decision on this point was wrong as a matter of law. As

we explained in Charlotte Amphitheater:

Circumstances . . . 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, therefore, the

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. 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.

82 F.3d at 1078 (emphasis added). “If the Board continues to

disagree with us, it is of course free to seek Supreme Court

review.” Id. at 1079. But “[s]o long as the Board persists on its

current course we have no choice but to remand each offending

order.” Douglas Foods, 251 F.3d at 1067.

The Board points out that in Charlotte Amphitheater, this

court stated that “‘the Board has no affirmative duty to inquire

whether employee turnover or [the] passage of time has

attenuated the effects of earlier unfair labor practices.’” Br. for

NLRB at 53 (quoting Charlotte Amphitheater, 82 F.3d at 1080).

But our decision in Charlotte Amphitheater also states that “an

employer must be allowed the opportunity to introduce evidence

of changed circumstances that would mitigate the need for a

bargaining order.” Charlotte Amphitheater, 82 F.3d at 1080.

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There is no doubt here that the Board was obligated to consider

thoroughly Cogburn’s timely motion to reopen the record.

The little bit that the Board offered in a defense of the

proposed Gissel bargaining order falls far short of what is

necessary. With respect to Cogburn’s claims of management

turnover – the death of co-owner and Company Vice President,

Steve Roberts, and the departure of co-owner and Company

Administrator, Suzanne Hughes – the Board responded that

Hughes’s replacement, Prentiss Smith, played a role in illegally

thwarting the Union’s organizing drive in 1996, and added that

Dietary Manager, Sonya O’Shea, who was found to have

interrogated three employees and threatened other employees

with facility closure, had been rehired after a two-year absence

from the Company. The Board also claimed that Cogburn “d[id]

not contend that there has been any significant change in the

family ownership group, . . . other than the death of Steve

Roberts.” Cogburn Healthcare Ctr., 2004 WL 1413262, at *3.

The Board said nothing about employee turnover. Rather, in

response to Cogburn’s evidence of the dwindling percentage of

voting employees still employed by the Company (44%) and the

small percentage of those employees still with the Company

who signed authorization cards (30%), Board counsel argued

that 44% is a “substantial percentage” which constitutes a

“remaining core of employees” sufficient to support a

bargaining order. Br. for NLRB at 58 (quotation marks

omitted).

The Board’s rote treatment of Cogburn’s evidence is

entirely unconvincing. For one thing, as noted above, the Board

simply ignored the evidence of employee turnover. This error

alone dooms the Board’s order, for we have made it clear that

“the Board is not free to disregard employee turnover when

issuing a bargaining order.” Douglas Foods, 251 F.3d at 1066;

see also Avecor, 931 F.2d at 937.

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Moreover, the Board’s cursory review of the change in

Company management hardly reflects reasoned decisionmaking

to which we might otherwise defer. The Board summarily

discounted the departure of two of the most prominent

executives of the Company, who were significantly responsible

for approximately 15 ULPs, five of the 15 instances of unlawful

interrogations, and four of the six discharges. The Board

undertook no analysis of the effect these changes might have

had on the employees and, instead, merely concluded that,

because two management officials still remained, a bargaining

order was the appropriate remedy. And the Board’s suggestion

that Cogburn “does not contend that there has been any

significant change in the family ownership group,” without

more, proves nothing. The Board never made the ownership

group the main culprit for the ULPs; rather the Board’s focus in

the ULP case was on the management group, and most of the

cited managers are no longer with the Company.

Finally, the Board failed to address Cogburn’s perfectly

reasonable argument that the five-year span of time between the

ULPs and the Board’s decision warranted a second look at the

need for a bargaining order. The Board stated, without

explanation, that the “passage of time does not render a

bargaining order inappropriate.” Cogburn Healthcare Ctr.,

2004 WL 1413262, at *3. This is a specious argument, both as

a matter of commonsense and in light of the governing case law.

Time is a factor that should be considered by the Board, along

with employee and management turnover. See Flamingo

Hilton-Laughlin, 148 F.3d at 1171; Charlotte Amphitheater, 82

F.3d at 1078. As we noted in Peoples Gas System, Inc. v.

NLRB:

[W]ith the passage of time, any coercive effects of an unfair

labor practice may dissipate, employee turnover may result

in a work force with no interest in the Union, and a fair

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election might be held which accurately reflects uncoerced

employee wishes as of the present time.

629 F.2d 35, 47 (D.C. Cir. 1980). This matter is now 10 years

old, largely because of the Board’s extraordinary delays in case

processing. In this situation, it is the height of chutzpah for the

Board to pronounce that the passage of time is irrelevant.

C. The Appropriate Remedies

There is little question that the Board’s order to reinstate

and make whole the six discharged employees is an appropriate

remedy, as is the Board’s cease and desist order. The Board’s

affirmative bargaining order is another matter, however. The

law of this circuit, which the Board flouted, compels reversal of

the Gissel bargaining order. In some cases involving a disputed

bargaining order, we will remand the case to the Board for

further consideration. In this instance, however, a remand

would be fruitless, because the record in this case cannot support

a bargaining order.

Cogburn tells us that, were we to remand the case, the

Board would find that, at least as of 2004, only 21 of the 82

members of the proposed bargaining unit who signed

authorization cards are still employed by the Company. It

would also learn that, as of 2004, Steve Roberts and Suzanne

Hughes were no longer running the day-to-day operation of the

Company. And it would learn that Prentiss Smith, whose

presence the Board found significant in its denial of Cogburn’s

first motion to reopen the record, has been replaced as the acting

administrator. We need not credit these additional “changed

circumstances,” however, in order to justify a reversal in this

case.

As noted above, the Board’s decision rejecting Cogburn’s

motion to reopen the record gave no hint of reasoned

decisionmaking and it was wrong as a matter of law. Indeed, the

Board made it clear that it had no intention of following the law

16

of this circuit. The telling point here is that more than a decade

has passed since a majority of employees in the unit signed

authorization cards, making it nearly impossible for the Board

to determine whether a majority of today’s workforce at

Cogburn desires Union representation. At this late stage, only

a new election can accomplish that goal.

III. CONCLUSION

For the reasons articulated herein, we grant in part and deny

in part Cogburn’s petition for review, and we grant in part and

deny in part the Board’s cross-application for enforcement. We

affirm the Board’s substantive conclusions and enforce the

Board’s remedial order insofar as it requires the Company to

cease and desist all unfair labor practices, post notices, and make

whole and offer employment to former Cogburn employees Hill,

Husband, Wiggins, Langham, Kirk, and Collins. Finally, we

hold that there is simply no basis in this record for an

affirmative bargaining order or the Board’s finding that Cogburn

failed to bargain in violation of §§ 8(a)(1) and (5).