NLRB v. CWI of Maryland Inc

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v. No. 97-1020

CWIOF MARYLAND, INCORPORATED,

Respondent.

On Application for Enforcement of an

Order of the National Labor Relations Board.

(5-CA-24908, 5-CA-25116)

Argued: July 10, 1997

Decided: October 2, 1997

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Application for enforcement granted in part, denied in part, and

remanded by published opinion. Judge Michael wrote the opinion, in

which Judge Motz joined. Judge Niemeyer wrote a separate opinion,

concurring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: William Maurice Bernstein, NATIONAL LABOR

RELATIONS BOARD, Washington, D.C., for Petitioner. Joel Ibert

Keiler, Reston, Virginia, for Respondent. ON BRIEF: Frederick L.

Feinstein, General Counsel, Linda Sher, Associate General Counsel,

Aileen A. Armstrong, Deputy Associate General Counsel,

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for

Petitioner.

OPINION

MICHAEL, Circuit Judge:

The National Labor Relations Board petitions for enforcement of

its order entered against CWI of Maryland, Inc. (CWI), a trucking

company. The Board's order affirmed the decision of an administra-

tive law judge, who found that CWI had committed numerous and

severe unfair labor practices during a unionization drive by the Driv-

ers, Chauffeurs, Warehousemen and Helpers, Local 639, affiliated

with the International Brotherhood of Teamsters, AFL-CIO (the

Union). The ALJ concluded that CWI had violated § 8(a)(1)-(5) of the

National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1)-(5), by

surveilling, interrogating, and threatening its workers; firing one

driver based on a discriminatory motive; constructively discharging

the entire bargaining unit based on a discriminatory motive; and

refusing to bargain. To remedy these violations, the Board ordered

CWI to cease and desist in its illegal practices, to recognize and bar-

gain with the Union, to offer reinstatement to terminated drivers, and

to restore the working conditions that existed prior to the unfair labor

practices. After considering the petition, we grant enforcement of

most of the Board's order and remand for further proceedings on

compliance. However, because we conclude that CWI did not violate

§ 8(a)(3) when it fired driver Richard Pace, we deny enforcement of

the portion of the Board's order that requires the company to reinstate

Pace.

I.

CWI hauls trash by truck from Washington, D.C., to landfills in

Virginia. It currently operates out of facilities in Beaver Heights,

Maryland, and King William County, Virginia. The company does

most of its trucking under a contract with Browning Ferris Industries

(BFI). CWI drivers haul trash from BFI's Washington location to a

landfill in King and Queen County, Virginia. The distance from the

BFI site to the landfill is about 140 miles.

Prior to August 1994 most CWI drivers would make two runs from

BFI's pickup site to the landfill each day. The drivers would get their

trucks at the Beaver Heights location, drive to the BFI site and pick

2

up a load of refuse, deliver the refuse to the landfill, and then return

to BFI for another load. The two runs required about 585 miles of

driving over 12 to 16 hours. The drivers earned $100 per run and

worked three to six days a week. In the spring of 1994 some drivers

mentioned to CWI's president, Wilton (Tony) Lash, that they were

driving more hours than were permitted under Department of Trans-

portation (DOT) regulations. Lash responded by asking the American

Trucking Association (ATA) to review CWI's operations. The ATA

review, conducted in July 1994, found that the hours required to drive

the distance covered by two round trips exceeded the limits set by

DOT regulations, which limited driving time to 10 hours per day,

with additional limits of 15 consecutive hours on duty and 70 hours

on duty in eight consecutive days. After the ATA issued its report,

Lash met with the drivers and announced that their runs would be cut

to one per day. However, Lash also said he would look for a drop site

in Virginia that would allow the drivers to make two runs per day

from BFI's Washington location to the drop site. Under this plan

other drivers would be hired in Virginia to drive from the drop site

to the landfill. Lash asked that the drivers "hang with [him]" until

something could be worked out. J.A. 606. In the meantime, drivers

made only one run per day, five or six days a week, and continued

to receive $100 per run.

On September 26, 1994, about six weeks after the runs were

reduced, three of the drivers met with James Woodward, an agent for

the Union. These drivers decided to solicit authorization cards, and by

mid-October they had collected cards from 31 of the 44 drivers at

CWI. On November 9 Woodward notified Lash by telephone that he

represented a majority of the drivers. Woodward and Lash arranged

a meeting, but CWI's counsel, Joel I. Keiler, came to the meeting

instead of Lash. Woodward claims he told Keiler that the Union rep-

resented a majority, and Keiler allegedly replied,"We'll never recog-

nize the union." J.A. 60. Keiler's account differs substantially:

according to Keiler, Woodward claimed that he could easily organize

CWI and that he mainly wanted to secure pension benefits and union

health insurance for the drivers.1

_________________________________________________________________

1 Keiler took the stand at the hearing before the ALJ to contradict

Woodward's testimony about what was said at their meeting. Keiler has

3

Tarik Muhammad, one of the drivers who signed an authorization

card, claimed he was confronted by Lash in early November. Accord-

ing to Muhammad, Lash asked him who was "causing the stink in the

company." J.A. 279. When Muhammad replied that he did not know

anything about a "stink," Lash told Muhammad that his name had

come up as one of the drivers "who was causing a stink." Id. Muham-

mad asked Lash what "causing a stink" meant, and Lash defined the

phrase as "guys going behind [my] back to join the Union." J.A. 280;

see J.A. 988. Lash added that he had talked to CWI's operations man-

ager, Dwayne (Dino) Sawyer, and had been surprised to hear Muham-

mad's name mentioned as one of those involved. Lash then began to

recount all of the ways he had tried to help the drivers in the past,

including a gift he had given to Muhammad when he was sick and

unable to work. Muhammad told Lash that he "wasn't about the busi-

ness of raising any type of stink with anybody" but also said he did

not see why signing a union card "has anything to do with a stink."

J.A. 280-81; see J.A. 988. Lash told Muhammad that the drivers who

wanted a union "[were not] going to force him to do anything he

didn't want to do." J.A. 279.

Lash called a meeting of his drivers on November 10. Lash began

by saying, "There's a lot of stink going on, and there's a devil

amongst us." J.A. 155, 609. Lash did not mention the Union. He also

mentioned that he was still looking for a drop site that would permit

drivers to make two runs in a day.

On November 18 CWI terminated driver Richard Pace. Pace, who

had worked for the company for about three months, had eleven unex-

_________________________________________________________________

represented CWI in all phases of this controversy, including the hearing

before the ALJ and the briefing and argument before us. The ABA

Model Rules of Professional Conduct require that"[a] lawyer shall not

act as advocate at a trial in which the lawyer is likely to be a necessary

witness . . . ." Model Rules of Professional Conduct Rule 3.7(a) (1984).

When pressed on this point at oral argument, Keiler told us he was sur-

prised by Woodward's testimony and had not expected any controversy

at the hearing about what had transpired at their meeting. In any event,

Keiler conceded to Woodward's version of the meeting for purposes of

the petition before us.

4

cused absences and had received a verbal warning for speeding. The

triggering event for Pace's termination occurred on Saturday, Novem-

ber 12, when he reported to work. Pace says he left the reporting site

after being told there were no more runs to be made that day. How-

ever, a memo prepared by Jerome Freeland, CWI's loading operator,

reported that Pace had left prematurely. Pace also claims he was told

he would not be needed until Tuesday, November 15. When Pace

arrived for work on Tuesday, operations manager Sawyer gave Pace

a three-day suspension for failing to report for work on Saturday and

Sunday. Pace protested that he had been in on Saturday, and Sawyer,

noting CWI's need for drivers, changed Pace's suspension to a writ-

ten warning. Pace worked the next three days. However, on Novem-

ber 18 Sawyer told Pace that he was being terminated because he

"didn't make [his] 90-day probation." J.A. 162. Pace responded that

he had not been advised of any probationary period. Pace also

claimed he had been hired on July 30 rather than August 18 and there-

fore his probationary period would have ended in October. After first

disputing Pace's assertion about the July 30 starting date, Sawyer then

claimed that the probationary period was 90 working days. After fur-

ther argument Sawyer allegedly told Pace, "You didn't make your 90

days. That's the excuse." J.A. 164.

A Union meeting was held on November 19 at the Union's hall in

Washington, D.C., a substantial distance from CWI's headquarters in

Beaver Heights. Company employees at the meeting noticed Tony

Lash's son, Duke Lash, and several other persons standing beside a

car across from the hall. When Woodward (the Union agent) began

to walk toward the car, Duke Lash and the others quickly got into the

car and sped off. Later in the afternoon, Tony Lash himself drove by

the Union hall, tooted his horn, and waved to some of the employees.

Lash later claimed that he passed by the hall because it was on his

way back from lunch.

The Union filed its representation petition on December 15. On

December 22 Tony Lash called a meeting of his drivers and said they

had "forced his hand." J.A. 125. He told them he had obtained a drop

site in King William County, Virginia. However, in order to haul to

this new drop site, which was approximately 100 miles from the BFI

pickup site, drivers would be required to report to work at the new site

instead of the facility in Beaver Heights. Since most of the drivers

5

lived relatively close to the Beaver Heights facility, the (unpaid) com-

mute to the King William County site would be about 90 to 125

miles. Lash said he was making the change to save on costs, and he

gave the drivers six days to decide if they wanted to remain with the

company. That same day (December 22) Keiler sent Woodward a let-

ter concerning the change in the reporting site.

Around this time Sawyer denied extra work to Joe Nelson, one of

the three drivers who first met with Woodward to discuss unioniza-

tion. Nelson had requested extra hours; his request was initially

granted, but Sawyer later reneged. When Nelson asked why he was

being denied the extra hours, Sawyer explained to Nelson that he "had

to lower the boom on [him]." J.A. 217.

Woodward paid a visit to Tony Lash on December 28. Woodward

claims that he again requested recognition and warned Lash that the

unfair labor practices would cost CWI a lot of money. Lash claims

that he told Woodward that CWI was moving to save money on taxes,

unemployment insurance, and workers' compensation. Keiler wrote

Woodward a letter on December 31, accusing Woodward of bypass-

ing Keiler. Keiler told Woodward that the move to the new drop site

would take effect on January 3, 1995.

CWI started using the new King William County location as the

reporting site in early 1995, even though the site (at least until May)

consisted only of "an open lot with rocks and a strip of concrete to

keep the trailers from sinking into the mud." J.A. 992. Although Tony

Lash had initially offered continued employment to any driver willing

to make the commute, several were laid off or given layoff notices

without any chance to continue. Between January 4 and 17, 1995, 38

CWI drivers were terminated and at least 20 new drivers were hired.

Sawyer told one of the drivers, Carl Stevenson, that CWI was termi-

nating him because he had been seen at a union meeting. Only one

of the original drivers, Mark Barnes, decided to make the commute

to the King William County site, which was 125 miles away from his

home. Barnes asked to start his runs from the Beaver Heights loca-

tion, but Lash denied this request, saying that "it wasn't . . . possible

with the union still keeping things going." J.A. 112. Lash indicated

to Barnes that any attempt to unionize would be futile, as he would

delay the process in court and even declare bankruptcy if necessary.

6

In May 1995 Barnes asked to switch to a different driving job with

CWI. The company had a fleet of smaller trucks that made runs

within Washington, D.C., and the drivers of these trucks still reported

to the Beaver Heights location. Barnes's request to switch jobs was

denied by Sawyer, who said he could not accommodate Barnes "be-

cause he would have to hire everybody else back because of the prob-

lems that it would create with the union." J.A. 117. Barnes quit his

job later in May.

The representation election was held on February 3, 1995. Out of

46 eligible voters, only 13 showed up to vote. Ten votes were chal-

lenged by CWI because the voters had been terminated by the time

of the election. The ALJ ultimately decided (with the Board affirm-

ing) that the challenged ballots should be counted. If all votes are

counted, the Union wins the election by ten votes to three. Issues

relating to the results of the vote are not before us. See infra n.13.

Meanwhile, the Union had filed charges against CWI on November

22, 1994, and the General Counsel filed his first complaint on January

27, 1995. This complaint alleged that CWI had engaged in surveil-

lance of the employees' union activities and that Pace had been fired

for his participation in union activities. On February 13, 1995, the

Union filed a second charge claiming that CWI had failed to bargain

with the Union and that 45 employees had been terminated for union

activity. The Union amended this charge on May 22 and again on

August 22 to provide greater factual detail. The General Counsel

combined the two charges and filed a consolidated complaint on Sep-

tember 27. The consolidated complaint included allegations about

CWI's decision to move its reporting site and the constructive dis-

charges caused by the move, Lash's comments blaming the move on

the Union, and CWI's refusal to bargain about the effects of the

move. The consolidated complaint sought an order requiring CWI to

bargain with the Union and to restore the status quo prior to CWI's

decision to move the reporting site.

The case was tried before an ALJ from December 11 to 15, 1995.

The ALJ concluded that the company had violated § 8(a)(1) through

its surveillance, interrogation, and threats concerning union activity.

The judge also determined that CWI's requirement that the drivers

report to the King William County drop site and CWI's termination

7

of Pace violated § 8(a)(3). Because a majority of the drivers had

signed Union authorization cards and because the Union had

demanded recognition and been refused, the ALJ also held that CWI's

"hallmark" unfair labor practices constituted a refusal to bargain in

violation of § 8(a)(5). As a remedy for these violations, the ALJ

imposed a cease and desist order, required CWI to return the reporting

site to the Beaver Heights location, ordered that the terminated drivers

be rehired and made whole from the date of their termination, and

established the Union as the bargaining agent for the employee unit.

The Board affirmed the ALJ's decision in all relevant respects and

now seeks to enforce its order against CWI.2

II.

The ALJ determined that CWI had violated §§ 8(a)(1), 8(a)(3), and

8(a)(5) of the Act, 29 U.S.C. § 158(a)(1)-(5), and the Board affirmed.

We review these determinations one section at a time.

A.

Section 8(a)(1) of the Act makes it unlawful for an employer to "in-

terfere with, restrain, or coerce employees in the[ir] exercise of"

rights under § 7 of the Act. CWI's actions that were held by the ALJ

to violate § 8(a)(1) can be grouped into three broad categories: sur-

veillance, interrogation, and threats. First, the ALJ determined that

Tony Lash's comments to Muhammad, which included an accusation

that Muhammad was one of those causing a "stink," created the

impression that Lash was monitoring the employees' union activities.

The ALJ also concluded that the presence of Duke Lash outside the

Union hall further contributed to the impression of surveillance, as

did Tony Lash's drive by the hall, during which he waved to the

employees and blew his horn.3 Second, the ALJ determined that Tony

_________________________________________________________________

2 For the text of the Board's order and the ALJ's decision, see CWI of

Maryland, Inc., 321 N.L.R.B. ___ (1996) (No. 101).

3 Tony Lash claimed that he only passed by the hall because it was on

his way back from the place he had eaten lunch that day. The ALJ, how-

ever, noted that Lash's reasons for being there were"irrelevant," J.A.

993, because the illegality of the conduct does not depend on the

employer's motive. The ALJ concluded that Lash's activities, which cal-

led attention to his presence, interfered with the employees' expectations

that they could attend the meeting at the Union hall without fear of

employer surveillance.

8

Lash's interrogation of Muhammad, during which Lash portrayed

union activity as a "stink," asked whether Muhammad was causing a

stink, and reminded Muhammad of a favor he had done for him, was

sufficiently coercive to constitute a § 8(a)(1) violation. Finally, the

ALJ found that several comments by Tony Lash and Sawyer consti-

tuted threats that were intimidating and coercive. The comments cited

by the ALJ were Sawyer's statement that he had to"lower the boom"

on Nelson, Lash and Sawyer's statements to Barnes blaming the

change in reporting sites on union activity, Lash and Sawyer's rejec-

tion of Barnes's requests to work out of the Beaver Heights facility

because union activity was continuing, Sawyer's statement to Steven-

son that he had been seen at a union meeting and would be termi-

nated, and Lash's repeated comments that union activities would be

futile.

CWI agrees that these incidents, if they actually occurred, would

constitute § 8(a)(1) violations. CWI's primary argument is that the

ALJ erroneously believed the testimony of the Union's witnesses

while disbelieving the testimony of CWI's witnesses. After claiming

that only Barnes and Muhammad testified as to the bulk of the alleged

8(a)(1) violations, CWI argues that their testimony is not credible.

Muhammad is not to be believed, according to CWI, because he

claimed that he signed a written statement and gave it to the NLRB

lawyer. The NLRB lawyer, however, said she had no knowledge of

such a statement. CWI claims that Barnes is not to be believed

because he allegedly contradicted himself about his reason for quit-

ting his job in May. Finally, CWI takes special exception to the ALJ's

use of Tony Lash's "stink" and "devil in our midst" comments. CWI

notes that Barnes testified at the hearing that Lash made the "stink"

and "devil in our midst" statements but on cross-examination

acknowledged that he did not mention them in his earlier affidavit.

CWI also highlights the testimony of two other employees, Joe Nel-

son and Alvin McElveen, who testified that the "stink" and "devil"

references related to Lash's concern that someone was undercutting

his relationship with BFI.

We begin our examination of the ALJ's factual findings by recog-

nizing that we are to assess such findings "only to determine whether

they are supported by substantial evidence." Fieldcrest Cannon, Inc.

v. NLRB, 97 F.3d 65, 69 (4th Cir. 1996). Moreover, "[w]hen factual

9

findings rest upon credibility determinations, they should be accepted

by the reviewing court absent `exceptional circumstances.'" Id. We

have defined such "exceptional circumstances" as including "cases

where `a credibility determination is unreasonable, contradicts other

findings of fact, or `is based on an inadequate reason or no reason at

all."" Id. at 69-70. Absent these circumstances, "careful fact-finding

. . . is entitled to respect." Id. at 70.

The ALJ here offered specific reasons for crediting the testimony

of Barnes and Muhammad. The ALJ found Barnes to be an "honest

witness[ ] with [a] better than average recollection[ ]." J.A. 989 n.11.

Similarly, the ALJ believed Muhammad's testimony to be "credibly

offered." J.A. 988 n.7. The ALJ also believed Barnes's testimony

about Tony Lash's anti-union statements in part because "Lash did

not deny most of the specific statements Barnes attributed to him."

J.A. 993 n.28. The ALJ found Muhammad's testimony about his dis-

cussion with Lash to be likewise "uncontradicted." J.A. 988 n.7.

CWI claims that inconsistencies in Barnes and Muhammad's testi-

mony demonstrate their lack of credibility. Barnes allegedly cannot be

believed because he offered contradictory reasons for his ultimate

decision to quit CWI. However, we fail to see any contradiction in

Barnes's testimony on this point. On direct examination Barnes said

he quit because "[m]y car . . . had broke[n] down and I was unable

to make the trip anymore, and I was getting to the point where I was

becoming exhausted and I just couldn't do it." J.A. 118. Barnes later

said on cross examination that he bought a new car while he was still

working for CWI. CWI claims that this statement contradicts his prior

testimony, apparently because it shows that he still had transportation

when he left CWI. However, Barnes said that, along with his car

breaking down, he was "becoming exhausted" and "just couldn't do

it." J.A. 118. We see no real contradiction. CWI attacks Muhammad

because he testified that he signed a written statement, and the NLRB

lawyer claimed never to have received such a statement from Muham-

mad. Although a fact-finder could take this apparent inconsistency

into account in weighing Muhammad's credibility, it is not sufficient

for us to reject the determination that Muhammad's testimony was

truthful.4

_________________________________________________________________

4 We also note that after drawing out this inconsistency, counsel for

CWI appeared more intent on using it as a rhetorical point than in dis-

covering the reason for it.

10

Finally, CWI attempts to show that Tony Lash's "stink" and "devil

in our midst" statements did not refer to union activity and thereby

seeks to undercut Barnes and Muhammad's testimony. Two of the

drivers most involved in the union drive, McElveen and Nelson, testi-

fied that Lash's statements at the November 10, 1994, drivers meeting

about "stink" and "the devil in our midst" referred to a potential mole

who was leaking information to BFI and trying to jeopardize BFI's

contract with CWI. However, neither Muhammad nor Barnes contra-

dicted Nelson or McElveen as to the meaning of "devil" and "stink"

in the context of the November 10 meeting. Muhammad only testified

that during their private conversation Lash defined "stink" as "guys

going behind [my] back to join the union." J.A. 280; see J.A. 988.

Barnes only claimed that he heard "stink" and "devil in our midst" at

the November 10 meeting, as did Nelson and McElveen; Barnes

offered no explanation as to what those words meant. We agree with

CWI that the testimony of McElveen and Nelson indicates that Lash's

comments may not have been taken as accusations of union activity

by some of the employees at the November 10 meeting. It is still plau-

sible, however, to believe Muhammad's testimony that the term had

been given a different meaning by Lash during his private conversa-

tion with Muhammad.

After looking at all the evidence, we find no reason to conclude

that the ALJ erred in his meticulous fact-finding. The testimony of

Barnes and Muhammad stands on its own as credibly given. More-

over, the ALJ's determinations did not rest solely on Barnes and

Muhammad. Woodward and Pace both testified that they saw Duke

Lash surveilling the meeting at the Union hall. Tony Lash admitted

to driving by the hall and blowing his horn, and he also testified that

his son admitted to being outside the Union hall. Nelson testified to

Sawyer's comment that Sawyer had to "lower the boom" on him, and

Stevenson testified that he was told he was terminated because he had

been seen at the Union meeting. In sum, we accept the ALJ's credibil-

ity determinations because we do not see any "exceptional circum-

stances" that require a different result. See Fieldcrest Cannon, 97 F.3d

at 69-70.

CWI next argues that the statute of limitations bars many of the

claims set forth in the NLRB's complaint. NLRA § 10(b) states that

"no complaint shall issue based upon any unfair labor practice occur-

11

ring more than six months prior to the filing of the charge with the

Board." 29 U.S.C. § 160(b). According to CWI, almost all of the alle-

gations about the § 8(a)(1) violations were included in the unfair labor

practice charge filed on August 22, 1995, more than six months after

most of the § 8(a)(1) violations took place. CWI contends that

because the August 22 charge was not filed within six months of the

relevant events, these allegations were untimely.

We disagree. The August 22 charge merely amended a charge orig-

inally filed on February 13, 1995, to provide further specifics.

Because the February 13 charge was filed well within the six-month

statute of limitations, the complaint based on that charge is timely.

Even if the August 22 charge can be considered a "new" charge that

falls beyond the six-month limitations period, we recognized in FPC

Holdings, Inc. v. NLRB, 64 F.3d 935, 941 (4th Cir. 1995), that "[a]

complaint or an amended complaint may include allegations not in

the original charge if the violations alleged occurred within six

months before the charge and are `closely related' to the allegations

in the charge." The three-part test for determining whether the allega-

tions in a complaint are sufficiently related to a timely charge is: (1)

whether the allegations in the complaint involve the same legal theory

as the allegations in the charge, (2) whether the allegations arise from

the same factual situation or sequence of events, and (3) whether the

respondent would raise the same or similar defenses to both sets of

allegations. Id. In this case the February 13 charge alleges, in relevant

part, that CWI "made threats and promises to its employees to destroy

their rights under the act." J.A. 788. The complaint elaborates by

spelling out the threats and promises made by CWI's president, Tony

Lash. For example, the complaint alleges that Lash (1) blamed the

Union for the move to Virginia, (2) warned employees that working

to unionize would be futile because he would "keep the matter tied

up" in legal proceedings, J.A. 803, and (3) threatened to put CWI into

bankruptcy if the Union was ever designated as bargaining agent.

Thus, the broad allegations in the charge involve the same legal the-

ory as the § 8(a)(1) violations alleged in the complaint, both sets of

allegations arise from the same sequence of events, and CWI would

raise the same legal defenses against both. The allegations in the com-

plaint are therefore "closely related" to the claims in the February 13

charge.

12

Finally, CWI claims that Tony Lash has two sons who go by the

name of "Duke." One is a part owner of CWI, while the other is not

associated with CWI but does visit the company from time to time to

fill the vending machines. According to CWI, we must assume that

the employees meant the second "Duke" when they claimed that Duke

Lash was sitting outside the Union hall prior to the meeting. How-

ever, CWI failed to raise this issue during cross-examination of the

employees who testified to seeing Duke Lash. CWI cannot now com-

plain of ambiguity when it did nothing to address any ambiguity dur-

ing the hearing. The ALJ found that the employees were unaware that

there were two "Dukes" and therefore concluded that they meant the

one who was associated with the company. CWI offers no real reason

why this conclusion is unreasonable, and we find no reason to dis-

agree with the ALJ's determination.

CWI's arguments do not present any grounds for overturning the

ALJ's careful § 8(a)(1) determinations. The ALJ properly concluded

that CWI repeatedly violated § 8(a)(1) by its attempts to interfere

with, restrain, and coerce the CWI drivers in the exercise of their

rights under § 7 of the Act.

B.

The ALJ concluded that CWI violated § 8(a)(3) of the Act (1) by

constructively discharging its truck drivers by moving their reporting

site from Beaver Heights, Maryland, to King William County, Vir-

ginia, and (2) by firing driver Richard Pace. We examine these deter-

minations in turn.

1.

The ALJ concluded that CWI's decision to move the reporting site

from Beaver Heights to King William County constituted a construc-

tive discharge of its drivers. Section 8(a)(3) of the Act prohibits "dis-

crimination in regard to hire or tenure of employment or any term or

condition of employment to encourage or discourage membership in

any labor organization." 29 U.S.C. § 158(a)(3). We have recognized

that "[w]here an employer deliberately makes an employee's working

conditions intolerable and thereby forces him to quit his job because

of union activities or union membership, the employer has construc-

13

tively discharged the employee in violation of § 8(a)(3) of the Act."

J.P. Stevens & Co. v. NLRB, 461 F.2d 490, 494 (4th Cir. 1972); see

also NLRB v. Bestway Trucking Co., 22 F.3d 177, 181 (7th Cir. 1994)

("A constructive discharge claim must satisfy two requirements. The

employer's conduct must create working conditions so intolerable that

an employee is forced to resign and the employer must have acted

with the intent to discourage union membership . . .."). Thus, the

move of the reporting site is a violation of § 8(a)(3) if CWI knew the

move amounted to an "intolerable" change in working conditions and

if CWI made the change to discourage its employees' union activities.

We agree with the ALJ that both elements were present in this

case. The move of the reporting site meant that the drivers would

have to make a round trip of 180 to 250 miles in order to get to and

from work. This daily commute of roughly three to five hours is espe-

cially onerous because the drivers would be driving for another ten to

twelve hours. The burden of the much longer commute clearly "rises

to the level where [the employees'] working conditions became `so

difficult or unpleasant as to force [them] to resign.'" J.A. 995 (second

alteration in original) (opinion of ALJ) (quoting Crystal Princeton

Refining Co., 222 N.L.R.B. 1068, 1069 (1976)).5 CWI clearly knew

what was in store for the drivers, as evidenced by Tony Lash's unper-

suasive attempts to discount the length of the commute when he

announced the change in reporting sites. Lash told the drivers, "It's

not that much of a commute. . . . You all [just] think it is." J.A. 619.

We also find that substantial evidence exists to show that CWI moved

the site based on anti-union animus. Although Lash discussed the pos-

sibility of a new drop site at the fall meeting with the drivers, he men-

tioned nothing about the possibility of moving the reporting site.6 If

_________________________________________________________________

5 In its Reply Brief CWI argues that the 180 to 250 mile commute does

not constitute an intolerable change in working conditions. It claims that

some of the new drivers commute up to 115 miles to the King William

County site. There is no evidence to this effect in the record, however,

and even if there was, it would not change our agreement with the deter-

mination that the move was an intolerable change in working conditions.

6 The ALJ found that Tony Lash told the drivers at the fall meeting that

their reporting site would not change if CWI established a drop site in

Virginia. See J.A. 988 ("Lash told them that their routines would remain

unchanged, that they would continue to pick up their tractors at [Beaver

Heights] . . . ."). This finding is supported by the testimony of driver Les-

ter Baddy.

14

anything, Lash indicated that things would improve for the drivers if

they would just "hang with [him]." J.A. 606. Indeed, on December 19

Lash indicated in a letter to the King William County Director of

Community Development that the drop site would only be used as a

"[s]witching yard;" "[o]ur interstate trucks would bring in and drop

loaded trailers with solid waste and immediately return with empty

trailers going north." J.A. 932. Lash notified the drivers about the

change in the reporting site during the same meeting at which he dis-

tributed information about the union election. He prefaced his news

about the move by telling the drivers that they had "forced his hand,"

J.A. 125, and he only gave them six days to decide whether to accept

the transfer. In January Lash explained to one driver that he was ter-

minating him because Lash felt "his back was up against the wall."

J.A. 218. After the move Lash told Barnes that he could not start his

runs at Beaver Heights because "the union [was] still keeping things

going." J.A. 112. There is ample evidence for the conclusion that

CWI decided to move its facilities because of the employees' union

activities.

CWI argues that the move was justified for economic reasons. It

points to testimony, by both Tony Lash and some of the drivers, that

Lash claimed at the December 22 meeting the move to Virginia

would save CWI money on taxes, insurance, workers' compensation,

and unemployment insurance. At the hearing Lash testified further

that his "insurance man" told him CWI's insurance would be cheaper

if he left the trucks overnight in Virginia. J.A. 639. These conclusory

assertions by Lash, however, were all that CWI offered to prove that

it moved the reporting site to save money. The ALJ concluded that

CWI had "offered no probative evidence [that Lash had been told the

costs would be cheaper] and no evidence that [CWI's] costs would be

less in Virginia." J.A. 995. The ALJ determined that Lash's "bare and

self-serving assertions are insufficient to carry [CWI's] burden of

proving such motivation and [CWI's] failure to adduce such evidence,

which would have been readily available if it existed, warrants an

inference that no such evidence exists." J.A. 996. At oral argument

CWI's counsel conceded that CWI had failed to introduce any objec-

tive evidence on this point, saying that CWI had decided that such

evidence was unnecessary. We agree with the ALJ's conclusion that

the record offers no substantive support for CWI's claim that the

reporting site move was made for economic reasons.

15

CWI apparently believed that evidence of the reasons for the move

was unnecessary because the Union never attempted to bargain over

the move and therefore waived the issue. This argument assumes that

the discharge of the employees was charged as a§ 8(a)(5) violation,

a refusal to bargain collectively. However, both the NLRB's com-

plaint and the ALJ expressly stated that the constructive discharge

was a § 8(a)(3) violation, an attempt to discourage unionization. Even

if the Union had not attempted to bargain over the issue (an argument

that we explore below), this failure by the Union would have no effect

on the ALJ's conclusion that CWI violated § 8(a)(3). CWI's waiver

argument, at least in the § 8(a)(3) context, is therefore irrelevant.

2.

The ALJ also concluded that Richard Pace's discharge violated

§ 8(a)(3). In making this determination, the ALJ cited to the standard

established in Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662

F.2d 899 (1st Cir. 1981), for resolving discrimination cases which

turn on the employer's motivation. The Wright Line standard, as we

set forth in FPC Holdings, requires the following proof:

First, the General Counsel must make out a prima facie case

that the employer's decision to lay off an employee was

motivated by anti-union animus. The burden then shifts to

the employer to prove affirmatively that the same action

would have been taken even in the absence of the employ-

ee's union activity. To make out a prima facie case, the

General Counsel must show (1) that the employee was

engaged in protected activity, (2) that the employer was

aware of the activity, and (3) that the activity was a substan-

tial or motivating reason for the employer's action.

FPC Holdings, 64 F.3d at 942. Looking only at the General Counsel's

evidence, the ALJ determined that the General Counsel had made a

prima facie case based on the timing of Pace's firing and the evidence

of anti-union animus demonstrated by CWI's other unfair labor prac-

tices. Under the ALJ's analysis, the burden then shifted to CWI to

demonstrate that it would have fired Pace even in the absence of his

support for the Union. The ALJ found that CWI's alleged reason for

firing Pace was not supported by the record and therefore concluded

16

that Pace had been discriminatorily discharged. We must affirm the

ALJ's factual findings if they are "supported by substantial evidence

on the record as a whole." Vance v. NLRB, 71 F.3d 486, 489 (4th Cir.

1995); see also Fieldcrest Cannon, 97 F.3d at 69. However, we

review de novo the legal standards used by the ALJ to assess the evi-

dence. See Architectural Glass & Metal Co. v. NLRB, 107 F.3d 426,

430 (6th Cir. 1997); see also Virginia Concrete Co. v. NLRB, 75 F.3d

974, 980 (4th Cir. 1996) ("we are, of course, obligated to correct

errors of law made by the Board").

Although the ALJ cited to the Wright Line standard as the method

by which to evaluate Pace's discharge, we believe that the ALJ in fact

allowed the General Counsel to establish a prima facie case merely

by creating an inference that anti-union animus was a substantial or

motivating factor in the discharge. Of course, in the original Wright

Line opinion the Board said that a prime facie case could be made by

a "showing sufficient to support the inference that protected conduct

was a `motivating factor' in the employer's decision." Wright Line,

251 N.L.R.B. at 1089 (emphasis added). However, the Supreme Court

has said that a prima facie case requires the General Counsel to prove

by a preponderance of the evidence that the employer had a discrimi-

natory intent that was a substantial or motivating factor in the dis-

charge. See NLRB v. Transportation Management Corp., 462 U.S.

393, 400 (1983) ("The Board held [in Wright Line] that the General

Counsel . . . had the burden of proving that the employee's conduct

protected by § 7 [of the Act] was a substantial or a motivating factor

in the discharge."); see also Director, Office of Workers' Comp. Pro-

grams v. Greenwich Collieries, 512 U.S. 267, 278 (1994) ("The

NLRB's approach in Transportation Management is consistent with

[Administrative Procedure Act] § 7(c)[, 5 U.S.C. § 556(d),] because

the NLRB first required the employee to persuade it that antiunion

sentiment contributed to the employer's decision. Only then did the

NLRB place the burden of persuasion on the employer as to its affir-

mative defense."); Southwest Merchandising Corp. v. NLRB, 53 F.3d

1334, 1340 (D.C. Cir. 1995) ("Although the Board labels the General

Counsel's burden that of establishing a `prima facie' case, it has, in

fact, traditionally required the General Counsel to sustain the burden

of proving that the employer was motivated by antiunion animus.");

Holo-Krome Co. v. NLRB, 954 F.2d 108, 111 (2d Cir. 1992) ("[I]t is

apparent that the Board uses the phrase `prima facie case' to mean the

17

General Counsel's burden to prove by a preponderance of the evi-

dence that protected activity was at least part of the motivation for the

employer's adverse action."). Thus, a Wright Line "prima facie case"

cannot be established merely by creating an inference that CWI was

motivated by anti-union animus; the General Counsel must prove by

a preponderance of the evidence that a discriminatory motive was a

substantial or motivating factor in Pace's discharge.7

The ALJ, however, apparently believed that if an inference of dis-

criminatory intent could be drawn from any of the General Counsel's

evidence, a prima facie case was made. The ALJ cited to the Board's

opinion in Fluor Daniel for the proposition that a prima facie case

only requires a showing "`sufficient to support the inference that pro-

tected conduct was a `motivating factor."" J.A. 994 (quoting Fluor

Daniel, Inc., 304 N.L.R.B. 970, 970 (1991)). The ALJ's actual analy-

sis of the prima facie case confirms that he used an erroneous stan-

dard. The ALJ found that the prima facie case was established as

follows:

_________________________________________________________________

7 The Board has created confusion about the standard by occasionally

describing a prima facie case under Wright Line as a "showing sufficient

to support the inference that protected conduct was a `motivating factor'

in the employer's decision." See, e.g., Fluor Daniel, Inc., 304 N.L.R.B.

970, 970 (1991). This tendency to define the prima facie case incorrectly

may in part stem from the definition of a "prima facie case" used in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In McDonnell

Douglas the Court established the well-known test for allocating burdens

and the order of presenting proof in Title VII cases. The plaintiff's initial

burden under the McDonnell Douglas test, also known as a "prima facie

case," is merely to present facts sufficient to support an inference of dis-

crimination. Because of the continuing confusion surrounding the nature

of the General Counsel's burden, we agree with those courts who have

suggested that the Board no longer use the term"prima facie case" in the

Wright Line context. See Southwest Merchandising, 53 F.3d at 1340 n.8

("Presumably, in the wake of Greenwich Collieries, it will no longer be

appropriate to term the General Counsel's burden that of mounting a

prima facie case; his burden is to persuade the Board that the employer

acted out of antiunion animus."); Holo-Krome, 954 F.2d at 112 ("[I]t

would be helpful if the Board would abandon the phrase [prima facie

case], in view of its entirely different meanings in other contexts, and

adopt some terminology that connotes proof of the elements of liabil-

ity.").

18

The General Counsel has made out a prima facie case

with respect to Pace, albeit not an overwhelmingly strong

one. Pace was involved in union activities, as a participant

if not as a leader. Respondent was aware of the employees'

union activity in general, if not of Pace's individual partici-

pation, and bore animus against that activity. Moreover,

Pace's discharge came 1 day before a scheduled union meet-

ing of which Respondent apparently had notice and in the

week following the Union's demand for recognition. This

evidence is sufficient to shift the burden to Respondent.

J.A. 994 (footnote omitted). The evidence described by the ALJ is rel-

atively weak; there is no direct evidence that CWI knew of Pace's

union involvement or that CWI fired Pace because of that involve-

ment. More important, the ALJ's analysis shows that he failed to con-

sider the explanation for the termination given by CWI. In

determining whether the General Counsel has shown that a discrimi-

natory motive was a substantial or motivating factor in Pace's dis-

charge, the ALJ clearly should have considered the whole record. The

Board noted in Wright Line that "[t]he absence of any legitimate basis

for an [employer's] action, of course, may form part of the proof of

the General Counsel's case." Wright Line, 251 N.L.R.B. at 1088 n.12.

Conversely, the presence of a legitimate explanation may work to

negate the General Counsel's case. In this case, however, the ALJ did

not consider CWI's evidence until after he had found that a prima

facie case had been established. Thus, the ALJ improperly concluded

that the burden had shifted to CWI without even considering CWI's

explanation for the termination.8

_________________________________________________________________

8 Once again, the ALJ's misstep on this issue mirrors confusion on the

part of the Board. In Hillside Bus Corp., 262 N.L.R.B. 1254, 1254

(1982), the Board held that "in assessing whether a prima facie case has

been presented, an administrative law judge must view the General

Counsel's evidence in isolation, apart from the[employer's] proffered

defense." However, in Golden Flake Snack Foods, 297 N.L.R.B. 594,

594 n.2 (1990), the Board stated that "it is the evidence presented at the

hearing, drawn from whatever source, which precisely determines

whether or not there is a prima facie case of unlawful conduct." In Holo-

Krome the Second Circuit resolved the issue in the following analysis:

Though the language of the Board's various pronouncements has

created needless confusion, there appears to be a consistent rule

19

Because the ALJ used the wrong standard to determine whether

Pace's termination was a violation of § 8(a)(3), we undertake our own

analysis of the evidence to determine whether there was a violation.

We must first determine whether the General Counsel has established

by a preponderance of the evidence that a discriminatory motive was

a substantial or motivating factor in Pace's firing. If the General

Counsel fails to make such a showing, our inquiry is at an end.

As we noted earlier, the evidence presented by the General Counsel

is relatively weak. Indeed, the ALJ acknowledged that the General

Counsel's "prima facie case," which (under the ALJ's erroneous stan-

dard) consisted only of the General Counsel's evidence, was "not an

overwhelmingly strong one." J.A. 994. Although Pace signed an

authorization card and alleges that he was "very vocal" about his

union activity, J.A. 152, the ALJ recognized that Pace was not a

leader in the drive for unionization. The ALJ also declined to find that

CWI had knowledge of Pace's participation in union activities. See

J.A. 994 ("[CWI] was aware of the employees' union activity in gen-

eral, if not of Pace's individual participation . . . ."). There is no direct

evidence that Pace was fired because of his union activities, and the

circumstantial evidence on this point is fairly slim: CWI committed

other activities displaying anti-union animus, and Pace was dis-

charged one day before a scheduled union meeting.

CWI, on the other hand, has presented legitimate reasons for firing

Pace. Pace does not dispute that he had unexcused absences on Sep-

tember 6, 8, 13, 22, 23, and 26, October 29 and 30, and November

7, 1994. As the ALJ recognized, this is "a somewhat dismal atten-

_________________________________________________________________

in practice. The Board wants the ALJ to make an initial determi-

nation as to whether the General Counsel has proved that pro-

tected activity was part of the motivation of the employer's

conduct. In making that determination, the ALJ may use all of

the record evidence. This clearly includes whatever explanation

the employer gave to the employees during the episode, and, it

apparently also includes the explanation that the employer pres-

ented at the hearing.

Holo-Krome, 954 F.2d at 113. Because the prima facie case requires a

determination based on a preponderance of the evidence, we agree that

an ALJ must consider the entire record in making that determination.

20

dance record."9 J.A. 995. We have repeatedly found that unexcused

absences are a legitimate explanation for a company's decision to ter-

minate an employee. See Standard Prods. Co., Rocky Mtn. Div. v.

NLRB, 824 F.2d 291, 294 (4th Cir. 1987) (finding no § 8(a)(3) viola-

tion in the termination of an employee who "[i]n the short space of

his employment . . . had been repeatedly warned about his tardiness

and unexcused absences"); McLean Trucking Co. v. NLRB, 719 F.2d

1226, 1229 (4th Cir. 1983) (finding no § 8(a)(3) violation in the ter-

mination of an employee who was often "tardy or inexcusably absent"

from work); NLRB v. Instrument Corp. of America, 714 F.2d 324, 330

(4th Cir. 1983) (finding no § 8(a)(3) violation in the termination of an

employee who had "spotty" attendance at work). In addition to the

unexcused absences, Pace had received a warning from Sawyer in

August after another employee complained that Pace was driving at

excessive speeds while making a run. There is also direct evidence

from Nelson, one of the leaders among the drivers in the effort to

unionize, that CWI fired Pace because of poor performance. Nelson

overheard Sawyer say that "Pace hadn't been showing up for work

and they had some charges against him; that he was going to be

fired." J.A. 227-28.

In finding against CWI, the ALJ emphasized CWI's failure to warn

Pace that his job was in jeopardy and its failure to document its pro-

bationary policy as evidence that Pace's termination was not moti-

vated by his poor performance. The ALJ's analysis on this issue,

however, was shaped in large part by his prior determination that the

burden of proof had shifted to CWI. See J.A. 995 ("[CWI] has failed

to sustain the burden thus shifted to it."). The burden does not shift,

however, unless the General Counsel proves (by a preponderance of

the evidence) that a discriminatory motive was a substantial or moti-

vating factor. Examining the facts under the proper standard, we do

not find that CWI's failures prove a discriminatory motive. The com-

pany may not have given Pace a warning about his behavior, but it

did document his absences and the speeding complaint. CWI's failure

to warn Pace about his poor performance or its probationary period

do not appear to us to be strong indicia of pretext. We do not think

_________________________________________________________________

9 The ALJ did not take into account Pace's additional absences on

November 12, 13, and 14, about which the parties presented conflicting

stories.

21

an employer is required to have finely tuned notice procedures in

order to justify firing someone for excessive absenteeism; unexcused

absences are usually obvious to the employee. CWI did not fire Pace

based on a frivolous or infrequently sanctioned offense, nor was there

any direct evidence to contradict the justifiable reason provided for

his termination. And, although CWI's probationary policy may be

less than well defined, we believe this smacks more of disorganiza-

tion than it does of pretext.10

Thus, in analyzing the record as a whole, we conclude that the

General Counsel did not establish by a preponderance of the evidence

that a discriminatory motive was a substantial or motivating factor in

Pace's discharge. We therefore decline to enforce the Board's order

insofar as it requires the reinstatement of Pace.

C.

Finally, the ALJ held that CWI had violated § 8(a)(5) by failing

and refusing to recognize and bargain with the Union. The ALJ based

this conclusion on the Supreme Court's decision in NLRB v. Gissel

Packing Co., 395 U.S. 575 (1969). A majority of authorization cards

by itself generally does not entitle the union to recognition and bar-

gaining. The employer's duty under § 8(a)(5) to recognize and bar-

gain with the union usually arises only after union victory in a

representation election. However, the Court held in Gissel that it is an

unfair labor practice for an employer to fail to recognize a union with

a card majority if that employer "engage[s] in unfair labor practices

disruptive of the Board's election machinery." Id. at 600; see, e.g.,

Snyder Tank Corp. v. NLRB, 428 F.2d 1348, 1350-51 (2d Cir. 1970)

("The section 8(a)(1) and 8(a)(3) violations . . . provide sufficient sup-

port for the Board's conclusion that the company violated section

8(a)(5) . . . ."). Thus, a card majority is sufficient to place a duty to

bargain on the employer if the employer has engaged in "`contempo-

raneous unfair labor practices likely to destroy the union's majority

_________________________________________________________________

10 The company form used to warn Pace about his absences has a box

that can be checked to indicate that the employee is probationary.

Although the box on Pace's form was not checked, the existence of the

box is at least evidence that CWI had a probationary policy.

22

and seriously impede the election.'"11 Gissell, 395 U.S. at 600. Of

course, since this duty to bargain only arises if the employer has com-

mitted other unfair labor practices, the § 8(a)(5) violation might be

considered a derivative consequence of the other unfair labor prac-

tices in cases where the union had a majority of cards. The remedy

for this type of § 8(a)(5) violation is an order that the employer bar-

gain with the union in good faith, even though the union has not won

a representation election. See id. at 614-15.

As we explained in NLRB v. Appletree Chevrolet, Inc., 608 F.2d

988 (4th Cir. 1979), a Gissel bargaining order should only be imposed

upon "findings (1) that the Union once had majority status, (2) that

such status had been dissipated by pervasive misconduct on the part

of the employer, (3) `that the possibility of erasing the effects of

[these] past [pervasive] practices and of ensuring a fair election [or a

fair rerun] by the use of traditional remedies, though present, is slight'

and (4) `that employee sentiment once expressed through cards

would, on balance, be better protected by a bargaining order.'" Id. at

996 (quoting Gissel, 395 U.S. at 614). We conclude that these

requirements were met. The ALJ found that at least 31 employees out

of a bargaining unit of approximately 44 presented valid authorization

cards; this finding is uncontested. The ALJ also carefully analyzed

CWI's unfair labor practices and found that they were sufficiently

severe to warrant the imposition of a bargaining order. The ALJ first

noted that the unfair labor practices at issue in this case -- the con-

structive discharge of all unit employees, threats that the business

would close, and interrogation -- were "hallmark" violations suffi-

cient to justify the imposition of a Gissel order on their own. See

NLRB v. So-Lo Foods, Inc., 985 F.2d 123, 126 (4th Cir. 1992)

("hallmark" violations are regarded as "so coercive" that "their pres-

ence `will support the issuance of a bargaining order unless some sig-

nificant mitigating circumstance exists'" (quoting NLRB v. Jamaica

Towing, Inc., 632 F.2d 208, 212 (2d Cir. 1980))). The ALJ next found

_________________________________________________________________

11 This type of violation is often called a Gissel category II violation.

A Gissel category I violation is one characterized by more pervasive and

severe unfair labor practices; in such a case there is no need to inquire

if the union has at one point represented a majority of the employees. See

Gissel, 395 U.S. at 613-15; NLRB v. Horizon Air Servs., 761 F.2d 22, 28-

29 (1st Cir. 1985).

23

"that all of the unit employees were vitally affected by the unfair

labor practices, that those unfair labor practices were committed by

high-level supervision, . . . and that it was likely. . . that [CWI] would

commit further violations to forestall [the employees'] free participa-

tion in an election." J.A. 997. The ALJ further found that there were

no circumstances to mitigate CWI's violations. We agree that CWI's

violations were sufficiently pervasive to warrant a Gissel bargaining

order, and CWI does not contest this point.

CWI contends that it did not violate § 8(a)(5) because the Union

never made a request to bargain. Once again, CWI has confused the

nature of the underlying violation. The § 8(a)(5) violation at issue in

this case derives from CWI's §§ 8(a)(1) and 8(a)(3) violations.

Although the Union had a card majority, CWI had not recognized the

Union, and no election had taken place. Thus, the Union had no obli-

gation to request bargaining over specific issues, because it was not

yet deemed the bargaining agent for the drivers. In retrospect, the ALJ

found that CWI's duty to bargain arose on November 15 or 16, 1994,

because that was when Woodward had a card majority and requested

recognition from CWI. However, CWI did not recognize the Union

at that point, and the Union would not have been the drivers' bargain-

ing agent had CWI not committed the "hallmark" unfair labor prac-

tices. Because the Union could only be considered the bargaining

agent in retrospect, it had no duty to present a laundry list of bargain-

ing demands to CWI in order to preserve those issues for future bar-

gaining. The Union was not then the bargaining agent, and it could

not have waived the bargaining rights of employees that it did not yet

represent. All of the cases cited by CWI that find a waiver of bargain-

ing rights by the union involved unions already recognized as the

employees' bargaining agent. See, e.g. , NLRB v. Oklahoma Fixture

Co., 79 F.3d 1030, 1033 (10th Cir. 1996); YHA, Inc. v. NLRB, 2 F.3d

168, 169 (6th Cir. 1993). A union cannot waive bargaining rights

before it actually is entrusted with them.

III.

The Board used three types of remedies to enforce its order. First,

it ordered CWI to cease and desist from its unfair labor practices. Sec-

ond, it ordered CWI to bargain with the Union. Third, it required CWI

to return to the status quo prior to the unfair labor practices by

24

reopening the drivers' reporting site in Beaver Heights, restoring any

work transferred to another company for discriminatory reasons, and

rehiring the terminated drivers to their former positions with back

pay.

CWI claims that the reopening of the facility would be unduly bur-

densome and that the Board's order should not be enforced prior to

a determination of "burdensomeness." However, the ALJ has already

conducted an inquiry into the burdensomeness of the move. The ALJ

found that "[a]s [CWI] has retained all of its facilities in Beaver

Heights, Maryland [the location outside D.C.], and continues to con-

duct the same business operations, it appears that no undue hardship

or cost will attach to its resumption of its operations as they existed

prior to December 22." J.A. 998 n.40. Our review of the record

reveals that CWI failed to provide any evidence that returning the

reporting site to Beaver Heights would be burdensome. Given CWI's

failure to provide any evidence that returning the reporting site to

Beaver Heights would be burdensome, we conclude that the ALJ was

well within his discretion in imposing this remedy. 12

_________________________________________________________________

12 Our colleague dissents from the remedy discussion and two other

parts of this opinion, saying that (1) "the record supports the manifesta-

tion of company intentions to create a Virginia drop site long before any

union activity or organizational efforts began" and (2) "a business deci-

sion," such as this, cannot "be reviewed or undone by an order of the

National Labor Relations Board in an effort to remedy later unfair labor

practices." Post at 28. These comments overlook the real basis for the

§ 8(a)(3) constructive discharge violation and the specifics of the rem-

edy. The violation was based on the change in the drivers' reporting site

to Virginia, not the establishment of a drop site in Virginia. When CWI

first announced the plan for a Virginia drop site, the drivers were told

their reporting site would not change. The company announced the

reporting site change only after union activity was in full swing. The

remedy does not require CWI to close or move the Virginia drop site;

instead it requires the company to reopen the reporting site at Beaver

Heights. This arrangement, a Beaver Heights reporting site and a Vir-

ginia drop site, would be consistent with the plan first announced by

CWI in response to the ATA report. Moreover, the Board said in its deci-

sion that CWI "will have the opportunity at the compliance stage to

introduce relevant evidence concerning the burdensomeness of comply-

ing with the requirement that it reestablish Beaver Heights, Maryland, as

the drivers' reporting site . . . ." J.A. 985 n.2.

25

CWI next contends that the remedies are invalid because the bar-

gaining unit in the complaint is different than the bargaining unit in

the ALJ's order. The bargaining unit in the ALJ's order is "[a]ll truck

drivers employed by the Employer at its Beaver Heights, Maryland

location." J.A. 999. The unit discussed in the complaint is "[a]ll truck

drivers employed by the Employer at its Maryland, Washington, DC,

and Virginia locations." J.A. 804. Although there appears to be some

discrepancy between the two units, we agree with the ALJ that in

actuality the differences are "immaterial." J.A. 996 n.36. The only dif-

ference between the two units is that the unit alleged in the complaint

adds drivers from Washington and Virginia. However, there is no

indication that CWI employs any drivers in Washington, and the ALJ

held that moving the reporting site to King William County was a vio-

lation of § 8(a)(3). Because CWI was ordered to move its reporting

site back to Beaver Heights, the difference in the bargaining units has

no effect on the ALJ's order. Moreover, notwithstanding any differ-

ence in units, CWI had stipulated to the appropriateness of the Beaver

Heights unit (the unit designated by the ALJ) when it signed the Stip-

ulated Election Agreement.

CWI also claims that the ALJ cannot order it to "restore work

transferred to any other company for discriminatory reasons," J.A.

999, because this issue was not mentioned in the complaint or liti-

gated at the hearing. As the court said in NLRB v. Blake Construction

Co., 663 F.2d 272, 279 (D.C. Cir. 1981), "[t]he Board may not make

findings or order remedies on violations not charged in the General

Counsel's complaint or litigated in the subsequent hearing." This rule,

however, clearly applies only to "violations." In this case, the underly-

ing § 8(a)(3) violation -- the constructive discharge of the employees

-- was clearly alleged in the complaint. In order to remedy this viola-

tion, the Board ordered CWI to restore the status quo ante and rehire

all of the terminated workers to their former jobs. This return to the

status quo includes the restoration of any work that might have been

transferred to other companies when the drivers were terminated. We

believe this is a logical step in the remedy, and we conclude that the

Board was well within its discretion in specifying this step.

The unfair labor practices committed by CWI in this case were per-

vasive: they ranged from threats and surveillance to the ultimate con-

structive discharge of the entire bargaining unit. The ALJ and the

26

Board have wisely fashioned a broad set of remedies that will attempt

to restore the employees to their position prior to CWI's largely ille-

gal campaign against the Union.13

IV.

In sum, we grant enforcement of the Board's order as to: (1) the

§ 8(a)(1) violations and the remedies for those violations, (2) the

§ 8(a)(3) constructive discharge violations and the remedies for those

violations, and (3) the § 8(a)(5) violation and the remedy for that vio-

lation. We deny the Board's petition for enforcement of its order inso-

far as it relates to Richard Pace. We remand for further proceedings

on compliance on the portions of the Board's order which we have

enforced.

PETITION GRANTED IN PART,

DENIED IN PART, AND REMANDED

_________________________________________________________________

13 CWI contends that the current order for enforcement is not ripe for

review because the issues relating to the conduct of the election were not

resolved at the time the Board petitioned to enforce its order. Although

the ALJ's opinion discusses the election, the Board's order does not.

Instead, the order requires CWI to restore the status quo and bargain with

the Union even if it is subsequently determined that the Union lost the

representation election. The election issues were remanded for further

consideration. This situation appears similar to the one in NLRB v. Low

Kit Mining Co., 3 F.3d 720, 729 (4th Cir. 1993). In that case the Board

divorced the election issues from the unfair labor practice claims in its

order, even though those issues had been tried together. The Low Kit

court enforced the order, which concerned only unfair labor practices,

even though the election issues were yet to be decided, and it left the

election issues for another order. We likewise enforce the Board's order

in this case and leave the election issues for another petition.

27

NIEMEYER, Circuit Judge, concurring in part and dissenting in part:

I concur in Parts I., II.A., and II.B.2., but I find that I cannot concur

in Parts II.B.1., II.C., and III., and with respect to those, I respectfully

dissent. I believe that the record supports the manifestation of com-

pany intentions to create a Virginia drop site long before any union

activity or organizational efforts began. The proposal to create the

Virginia site was in response to an American Trucking Association

report and not in response to any union activity. Indeed, the company

met with its employees in August 1994 to discuss steps to remedy

problems found by the American Trucking Association report, and

this meeting included discussion of the creation of a Virginia drop

site. Mr. Lester Baddy, one of the drivers, testified that at this meeting

the company stated that it "would have to cut down to one load or

also get a closer place," a drop site. The company discussed hiring

additional drivers to report to the drop site or allowing existing driv-

ers to commute to the drop site. The first meeting of employees with

a union representative did not occur until September 26, 1994. It is

not surprising, therefore, that the move to Virginia was never articu-

lated as the basis of a complaint of an unfair labor practice. Accord-

ingly, I cannot conclude that a business decision, which was not

motivated by anti-union animus, can be reviewed or undone by an

order of the National Labor Relations Board in an effort to remedy

later unfair labor practices.

28