Be-Lo Stores v. NLRB

Filed: November 4, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 96-1575(L)

(11-CA-14586(L))

Be-Lo Stores,

Petitioner,

versus

National Labor Relations Board,

Respondent.

O R D E R

The Court amends its opinion filed September 16, 1997, as

follows:

On page 3, second full paragraph, line 2 -- the word "which"

is changed to read "that."

On page 11, first full paragraph, line 4 -- the hyphen in

"clearly relevant" is deleted.

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

Volume 1 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BE-LO STORES,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

No. 96-1575

Respondent,

UNITED FOOD AND COMMERCIAL

WORKERS INTERNATIONAL UNION,

Local 400, AFL-CIO, CLC,

Intervenor.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

UNITED FOOD AND COMMERCIAL

WORKERS INTERNATIONAL UNION,

Local 400, AFL-CIO, CLC,

No. 96-1657

Intervenor,

v.

BE-LO STORES,

Respondent.

On Petition for Review and Cross-Application for

Enforcement of an Order

of the National Labor Relations Board.

(11-CA-14586, 11-CA-14775-1, 11-CA-14775-1, 11-CA-14775-2,

11-CA-14775-3, 11-CA-14775-4, 11-CA-14775-5, 11-CA-14775-6,

11-CA-14775-7, 11-CA-14775-8, 11-CA-14775-9, 11-CA-14775-10,

11-CA-14712, 11-CA-14793-1, 11-CA-14793-2, 11-CA-14793-3,

11-CA-14793-4, 11-CA-14793-5, 11-CA-14811, 11-RC-5823)

Argued: January 27, 1997

Decided: September 16, 1997

Before ERVIN and LUTTIG, Circuit Judges, and

HILTON, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Volume 1

Opinion by Judge Luttig

Volume 2

Dissent by Judge Ervin

_________________________________________________________________

Reversed in part, affirmed in part, and remanded by published opin-

ion. Judge Luttig wrote the majority opinion, in which Judge Hilton

joined. Judge Ervin wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Stanley Graves Barr, Jr., Charles Vincent McPhillips,

KAUFMAN & CANOLES, P.C., Norfolk, Virginia, for Be-Lo Stores.

John Emad Arbab, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for NLRB. Carey Robert Butsavage, BUTSAV-

AGE & ASSOCIATES, P.C., Washington, D.C., for Intervenor. ON

BRIEF: Arlene F. Klinedinst, Ashley L. Taylor, Jr., KAUFMAN &

CANOLES, P.C., Norfolk, Virginia, for Be-Lo Stores. Frederick L.

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

Aileen A. Armstrong, Deputy Associate General Counsel, Peter

Winkler, Supervisory Attorney, William A. Baudler, NATIONAL

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

George Wiszynski, BUTSAVAGE & ASSOCIATES, P.C., Washing-

ton, D.C., for Intervenor.

_________________________________________________________________

2

OPINION

LUTTIG, Circuit Judge:

"[O]ur nation's labor policies have never included a preference for

imposing a collective bargaining representative upon those who have

not affirmatively chosen that representative by election." N.L.R.B. v.

Appletree Chevrolet, Inc., 671 F.2d 838, 840 (4th Cir. 1982)

(Appletree Chevrolet II). Since "an election, not a bargaining order,

remains the traditional, as well as the preferred, method for determin-

ing the bargaining agent for employees," N.L.R.B. v. Appletree Chev-

rolet, Inc., 608 F.2d 988, 996 (4th Cir. 1979) (Appletree Chevrolet I),

the "extraordinary and drastic remedy" of forced bargaining pursuant

to N.L.R.B. v. Gissel, 395 U.S. 575 (1969), is reserved for only the

most "unusual cases," N.L.R.B. v. J. Coty Messenger Serv., Inc., 763

F.2d 92, 99 (2nd Cir. 1985). Because such an order is disfavored, we

have admonished the National Labor Relations Board that it must

undertake a comprehensive analysis for each of Gissel's necessary

predicate findings, and support its order with detailed record evi-

dence. It is, in other words, "manifestly insufficient" for the Board to

satisfy the Gissel predicates by "simply engaging in perfunctory or

boiler-plate language, or using a litany, reciting conclusions by rote

without factual explication." Appletree Chevrolet I 608 F.2d at 997

(internal quotation marks omitted). Notwithstanding our repeated

warnings, and similar warnings from our sister circuits, "even a cur-

sory examination of the decisions applying Gissel . . . reveals that the

Board has declined repeatedly to assist the courts .. . by revealing

[its] reasons for issuing Gissel bargaining orders." Red Oaks Nursing

Homes, Inc. v. N.L.R.B., 633 F.2d 503, 508 (7th Cir. 1980) (citing,

inter alia, Appletree Chevrolet I, 608 F.2d at 996).

Here, notwithstanding our repeated admonitions, the Board

imposed a far-reaching mandatory bargaining order that would

require the company to bargain with the United Food and Commercial

Workers Union, although significant questions exist as to whether the

Union ever achieved majority status among the company's employ-

ees; some six years have elapsed since the company's election vic-

tory; more than two-thirds of the company's work force employed at

the time of the company's unfair labor practices are no longer even

employed by the company; there were relatively few violations and

3

they occurred in less than one-half of the company's thirty stores; and

no evidence whatsoever exists that a fair election could not be held

today. Moreover, the Board imposed its mandatory bargaining order

on the strength of little more than "perfunctory or boiler-plate lan-

guage" lacking substantive "factual explication." Appletree Chevrolet

I, 608 F.2d at 997 (internal quotation marks omitted).

Because a mandatory bargaining order should not have issued

under the facts of this case, and such an order would not have been

sustainable on the basis of the kind of ipse dixit relied upon by the

Board here in any event, we reverse the Board's entry of the manda-

tory bargaining order. We also reverse, as unsupported by substantial

evidence, the Board's conclusions that Be-Lo violated the National

Labor Relations Act, 29 U.S.C. § 151, et seq. ("the Act") by (1) dis-

tributing a "pink slip" flyer, (2) denying Union picketers access to its

property, and (3) dismissing or failing to recall five pro-union

employees. We affirm, however, for reasons discussed, a number of

the Board's other findings with regard to individual personnel actions.

I.

In May 1990, intervenor United Food and Commercial Workers

Union, Local 400 (the "Union") began organizing at several of Be-

Lo's retail grocery stores. In February 1991, following a lengthy

recruitment campaign, the Union demanded recognition, advising Be-

Lo that a majority of the company's employees had signed union

authorization cards designating the Union as their official bargaining

representative. Be-Lo challenged the Union's claim of majority and

declined to recognize the Union, and an election to resolve the matter

was scheduled for March 21, 1991.

During the weeks preceding the election, the company openly cam-

paigned against unionization, holding meetings, circulating memo-

randa, showing videotapes, and sending out flyers, including a flyer

in the form of a mock "pink slip" purportedly given to employees of

unionized stores that had been forced to close following unionization.

Be-Lo also took "employment actions" against a number of employ-

ees who favored unionization of the company.

4

The Union lost the March 21 election 377 to 220. The remaining

159 of the 756 total eligible voters either did not vote or had their

nondeterminative ballots contested.

Following the election, the Union picketed several Be-Lo locations.

Be-Lo responded by seeking five separate injunctions to exclude the

picketers from its premises under the company's no-solicitation pol-

icy. In all five cases, the courts of the Commonwealth of Virginia

granted Be-Lo's requested injunctions.

Following the filing of charges by the Union and the filing of com-

plaints by the NLRB Regional Director against Be-Lo alleging viola-

tions of various provisions of the National Labor Relations Act, a

hearing was held before an administrative law judge. The ALJ found

that, overall, Be-Lo's campaign was conducted in accordance with the

Act. See J.A. Vol. I, at 360. The ALJ specifically rejected the NLRB

General Counsel's claims that Be-Lo's pink slip flyer and other anti-

union campaign messages violated section 8(a)(1), and that Be-Lo

was discriminatorily enforcing its no-solicitation policy. The ALJ

held, however, that a number of statements made to individual

employees by certain of Be-Lo's store managers violated section

8(a)(1), and that sixteen individual employment actions, of which

thirteen were various forms of discharges, taken by Be-Lo during the

election campaign violated section 8(a)(3). On the basis of these vio-

lations, the ALJ issued a Gissel mandatory bargaining order.

On appeal from the ALJ's decision, the Board reversed two of Be-

Lo's employee-specific section 8(a)(3) discriminatory discharge vio-

lations and affirmed eleven others, and affirmed the ALJ's findings

of employee-specific section 8(a)(1) violations. The Board also held,

however, contrary to the ALJ, that Be-Lo threatened its employees

with job loss in violation of section 8(a)(1) by distributing the pink

slip flyer and by denying Union picketers access to the sidewalks and

parking lots at the specified Be-Lo Stores following the election. See

J.A. Vol. I, at 341, 348-50. Based on these violations, the Board

affirmed the ALJ's mandatory bargaining order.

II.

"`[A]n election, not a bargaining order, remains the traditional, as

well as preferred, method' for determining the employee's bargaining

5

agent." N.L.R.B. v. So-Lo Foods, Inc., 985 F.2d 123, 126 (4th Cir.

1993) (quoting Appletree Chevrolet I, 608 F.2d at 996). While we

accord the Board respect as to its choice of remedies because of its

presumed expertise, see So-Lo Foods, 985 F.2d at 126 (citing Gissel,

395 U.S. at 612 n.32), we "exercise less deference" and require scru-

pulous specificity from the Board when it issues mandatory bargain-

ing orders on the authority of NLRB v. Gissel Packing. See N.L.R.B.

v. Rexair, Inc., 646 F.2d 249, 250 (6th Cir. 1981) (courts closely scru-

tinize the Board "when it has imposed the very strong remedy of issu-

ing a bargaining order without holding a new election"). A Gissel

order "is not a snake-oil cure for whatever ails the workplace; it is an

extreme remedy that must be applied with commensurate care."

Skyline Distributors v. N.L.R.B., 99 F.3d 403, 410 (D.C. Cir. 1996)

(internal quotation marks omitted).

Gissel orders may enter in essentially two types of cases -- so-

called Category I cases, where "exceptional," "outrageous," and "per-

vasive" unfair labor practices have occurred and the coercive effects

of such practices "cannot be eliminated by the application of tradi-

tional remedies," Gissel, 395 U.S. at 613-14, and, in less extraordi-

nary cases (Category II), where the Board has found "(1) that the

Union once had a majority status, (2) that such status had been dissi-

pated by pervasive misconduct on the part of the employer, (3) `that

the possibility of erasing the effects of (these) past (pervasive) prac-

tices and ensuring a fair election . . . is slight,' and (4) `that employee

sentiment . . . would, on balance, be better protected by a bargaining

order.'" Appletree Chevrolet I, 608 F.2d at 996 (quoting Gissel, 395

U.S. at 614).

Here, the Board did not specify whether it was imposing a Gissel

Category I or Gissel Category II order, stating that it was unnecessary

to decide the issue because the case "clearly satisfies the greater bur-

den imposed under . . . Category II." J.A. Vol. I, at 350 n.32. We

therefore deem the order to have been a Gissel Category II order, as

we do when the Board declines to specify the nature of its action, yet

conducts only a Category II analysis. See Appletree Chevrolet I, 608

F.2d at 996 n.8. Scrutinizing the Board's order as such, it is apparent

that the order cannot stand. Not only was the Board's (and ALJ's)

fundamental determination that the Union enjoyed majority status

flawed, which alone would serve to invalidate the sweeping remedy

6

ordered, see, e.g., N.L.R.B. v. Cell Agricultural Manu. Co., 41 F.3d

389, 397 (8th Cir. 1994), but even if that determination were unassail-

able, the Board's conclusion that a fair rerun election would be

impossible was in error, given the large turnover in Be-Lo's work

force and the six-years that have elapsed since the alleged violations

occurred.

A.

1.

As a threshold matter, the Board erred when it concluded that the

Union produced a sufficient number of authorization cards (403) to

establish majority status among Be-Lo's work force as of March 20,

1991. In reaching this conclusion, the Board presumed as a matter of

law (for reasons discussed infra) that the employees whose names

appeared on a voter eligibility list current as of January 26, 1991

(hereafter "GC-63") were the names of eligible voters in the bargain-

ing unit as of March 20, 1991, and it calculated the number of autho-

rization cards required for the Union to establish majority status (379)

based upon the number of employees on this list. At the same time

that the Board presumed there had been no changes in the company's

work force between January 26 and March 20, the Board allowed the

NLRB General Counsel to introduce authorization cards signed dur-

ing this two-month period by employees favoring Union representa-

tion in order to establish that the Union enjoyed majority status as of

election day, but disallowed introduction of evidence by Be-Lo that

forty-four of the employees who were listed on the GC-63 and who

signed cards prior to January 26, left Be-Lo's employ between Janu-

ary 26 and March 20. As well, the Board disallowed Be-Lo from

introducing evidence that there were seventy-five new employees

who had been hired between January 26 and March 20, virtually none

of whom had signed cards. See J.A. Vol. I, at 344; J.A. Vol. III, at

1114-43, 1160-80; J.A. Vol. IV, at 1606-13. If Be-Lo's proffered evi-

dence had been considered and accepted by the Board and the ALJ,

it would have shown that the Union did not actually enjoy majority

status on March 20, on January 26, or on any date in between; in other

words, it was only because the Board provided the Union, but not Be-

Lo, the benefit of the period between January 26 and March 20 for

7

purposes of gauging Union support that the Union was able to estab-

lish majority status.

The Board accepted the January 26 voter eligibility list as repre-

senting the Be-Lo employees eligible to vote in the election as of

March 20, rather than allowing evidence to be presented on the actual

number and identity of persons employed by Be-Lo as of that date,

because it found that Be-Lo induced reliance upon the GC-63 "as the

final voter eligibility list for the purpose of proving majority status."

J.A. Vol. I, at 351. Having found that Be-Lo induced reliance upon

the GC-63, the Board excluded all evidence challenging that list,

under the authority of its decision in Bannon Mills, 146 NLRB 611,

633-35 (1964). In this, the Board clearly erred.

The Board, while recognizing that the holding of Bannon Mills

does not apply to Be-Lo's actions,1 nonetheless affirmed exclusion of

Be-Lo's evidence on the authority of Bannon Mills, reasoning that

"the principle [of that case], the protection of the integrity of the hear-

ing process" applied equally in this context as in the context where

a party has withheld evidence in response to a subpoena. J.A. Vol. I,

at 352 n.35. Even were we to recognize such an extension of Bannon

Mills, which we do not, such an extension would not serve to validate

the Board's exclusion of Be-Lo's evidence as to the changes in its

work force between January 26 and March 20, because in no sense

can it be said that Be-Lo induced reliance upon the GC-63.

The Board and ALJ essentially estopped Be-Lo from arguing that

changes had occurred in its work force, on the strength of a single,

cryptic statement by Be-Lo's counsel made in the course of an

exchange on a motion to partially quash a NLRB subpoena directed

to Be-Lo for payroll and related documents. During that exchange,

counsel for the NLRB stated that he was seeking

_________________________________________________________________

1 In Bannon Mills, the Board held that a party may be sanctioned with

exclusion of evidence when it withholds evidence in response to a sub-

poena request. Because Be-Lo fully complied with its subpoena request

by producing all of the business and payroll records properly requested

by the General Counsel, the Board conceded, as it must, that Bannon

Mills (which is not the law of this circuit in any event) is, strictly speak-

ing, inapplicable here. See J.A. at 352 n.35.

8

a list[ ] of all bargaining unit employees for each of those

payroll periods [in February and March]. In other words, a

listing like they provided to the Board for the excelsior list

for the election [GC-63]. . . . [because] the only thing avail-

able to the Regional Director to ascertain the majority that

we are looking for in the Gissel complaint was the excelsior

list.

J.A. Vol. II, at 438. In response, Be-Lo's counsel stated that,

the election was March 21, and there were certainly some

deletions from the excelsior list [GC-63] for those employ-

ees who were not on the payroll as of the date of the elec-

tion. Those deletions were made and the board has that list

as of March 21. They have it.

Id. at 439. On the basis of this latter statement, the Board held that

Be-Lo induced reliance upon the GC-63.

We can appreciate the source of the ALJ's and the Board's confu-

sion regarding the response by Be-Lo's counsel. On its face, the state-

ment could be understood as a representation that the General

Counsel had been provided a revised Excelsior list, which included

the deletions and additions of names for those employees leaving and

entering Be-Lo's employ during the period January 26 to March 20.

However, when this statement is considered in the context of the

whole record, it is fairly clear that Be-Lo's counsel was saying in this

response only that the General Counsel and Union had in their posses-

sion a separate list of employees who either had been terminated by

Be-Lo since creation of GC-63 or whose names, for one reason or

another, had not appeared on that list, not as saying that the General

Counsel and the Union had in their possession a revised GC-63 incor-

porating these personnel changes. As Be-Lo explains in its brief, and

as the record confirms, the General Counsel and the Union had in fact

been provided with what even the Union itself describes as a "list of

employees who: a) are active employees not on the Excelsior list

(Exhibit "A"), or b) employees who were terminated and should not

be on the Excelsior list (Exhibit "B")." J.A. Vol. 7, at 2435 (Letter of

March 4, 1991 from Carey R. Butsavage to Sherrie Black of National

9

Labor Relations Board, attaching Exhibits A & B).2 That Be-Lo's

counsel was referring only to the list of changes and not to a new,

integrated Excelsior list, is further supported, we believe, by the fact

that the Union finds it necessary to misquote Be-Lo's counsel in this

important colloquy. The Union quotes Be-Lo not as saying (as Be-

Lo's counsel did) that "there were certainly some deletions from the

excelsior list for those employees who were not on the payroll as of

the date of the election . . . and the Board has that list as of March

21," but rather, as saying that, "[i]f you want a list of employees for

purposes of determining the Union's majority status, you have the

Excelsior list [GC-63]. You have it." See Intervenor's Br. at 12 (citing

J.A. Vol. II, at 439). Be-Lo's counsel never made any such statement.

Ultimately, though, we need not determine whether (as the Board

contends) the statement by Be-Lo's counsel was intended as confir-

mation that the GC-63 was an accurate list of the company's employ-

ees on March 20 or whether (as Be-Lo contends) the statement

referenced only the separate list of employees who had departed Be-

Lo or whose names had not appeared on the original Excelsior list.

For, when considered against the backdrop of the three thousand

pages of record in this case -- a significant portion of which is

devoted to the issue of determining the Union's majority status -- this

single statement is manifestly insufficient to support a conclusion that

Be-Lo induced reliance on the GC-63 such as to bar the company

from introducing evidence on the inaccuracy of that list as of March

20. Not only did disputes over the GC-63 prompt both parties to con-

test over a hundred ballots before the final election on March 21; Be-

Lo steadfastly maintained throughout the entire post-election proceed-

ing giving rise to this appeal that the original Excelsior list (GC-63)

required additions and deletions in order to make it an accurate list

as of the March 20 majority date. Contrary to the holding of the Board

that Be-Lo only contested the Union's reliance on GC-63 "some 5

months into the hearing and after the [Union] had rested," see J.A.

Vol. I, at 251, Be-Lo vehemently and repeatedly challenged the accu-

racy of GC-63 before the close of the General Counsel's case. See

J.A. Vol. III, at 1114-117.

_________________________________________________________________

2 An Excelsior list is a list of employees provided by the employer for

use by a union during an election. The Excelsior list in this case became,

with minor alterations not relevant to this dispute, the GC-63.

10

Even if Be-Lo could be said to have induced reasonable reliance

on GC-63 through its counsel's single statement, reliance upon this

statement by the General Counsel was not so prejudicial as to warrant

exclusion of Be-Lo's clearly relevant evidence. The General Counsel

had subpoenaed additional documents from Be-Lo because it was dis-

satisfied with GC-63 and wished to make its own determination of

which employees were eligible on March 20. See J.A. at Vol. II, 438-

40. Thus, the Board had in its possession, through subpoenaed pro-

duction, all of the information necessary to know that GC-63 was not

an accurate list of Be-Lo's employees as of March 20. Apparently, the

NLRB itself even intended, at least initially, to challenge the accuracy

of the list. Moreover, as explained, the General Counsel and the

Union had in their possession a list of Be-Lo's employees who either

had departed the company since January 26 or whose names had been

omitted from the original Excelsior list. Under these circumstances,

we are at a loss to understand how the General Counsel could have

been prejudiced.

2.

Apart from the Board's erroneous exclusion of Be-Lo's evidence

of attrition and new hires prior to March 20, it is also apparent that

the Board counted many authorization cards that were at least of

questionable validity (even if not invalid) in the course of its finding

that the Union had attained -- by only 24 cards-- a majority of sup-

port as of March 20. For example, Be-Lo challenged 40 cards as

invalid because they were obtained under the false pretenses that the

sole purpose for the cards was to authorize an election.3 Be-Lo pres-

ented the testimony of forty-three current and former employees who

testified that they signed cards only after they were falsely assured

that the only purpose of the cards was to seek an election, rather than

_________________________________________________________________

3 If the language on a card is "deliberately and clearly cancelled by a

union adherent with words calculated to direct the signer to disregard and

forget the language above his signature," see Gissel, 395 U.S. at 606-07,

then a pro-union authorization card may not be counted. Such words of

cancellation obviously include statements "that the card [is] to be used

solely for the purpose of obtaining an election." Id. at 584; see also

Burlington Industries, Inc. v. N.L.R.B., 680 F.2d 974, 976 (4th Cir.

1982).

11

to record their preference for union representation. This testimony

was directly corroborated by the testimony of a Union witness, Kim

Howell, who testified on cross-examination that she signed her card

after she was told that the card's only purpose was to seek an election

and that she, in turn, likewise misrepresented the purpose of the

authorization cards to numerous other employees:

BE-LO's COUNSEL: [I] want to know what [Juanita Frid-

ley] told you. Did she tell you that the card was necessary

in order to have an election?

HOWELL: Yes.

BE-LO's COUNSEL: Did she tell you that the card would

be used only to get an election?

HOWELL: Yes.

At the end of re-cross-examination, Judge Linsky elicited the follow-

ing additional testimony from Howell:

JUDGE LINSKY: The only reason for you to sign the card

was to get an election?

HOWELL: Yes.

JUDGE LINSKY: No other reason?

HOWELL: Just to get an election.

JUDGE LINSKY: Okay, and what did you tell these people

you got to sign cards?

HOWELL: I told them it was just for election.

....

JUDGE LINSKY: So, you told -- you asked people to sign

the card to get an election only?

12

HOWELL: Yes.

JUDGE LINSKY: And no other reason?

HOWELL: Just for election.

JUDGE LINSKY: All right.

J.A. Vol. I, at 204; see also J.A. Vol. II, at 602-03; J.A. Vol. III, at

1024.

Notwithstanding this testimony, the ALJ, in the following perfunc-

tory footnote, credited all of the Union's thirty-seven organizer-

witnesses who claimed that they never misrepresented the purpose of

any cards, see J.A. Vol. I, at 377, and discredited every single one of

Be-Lo's 43 witnesses:

In so far as there are inconsistencies, I credit some witnesses

over others: I credit Organizer Karen Gompers over Lucille

Thornburg and Linda Urguelles; I credit Organizer Fred

Carter over Julie Price and Debbie White; I credit Organizer

Dudley Saunders over Joyce Riddick and Roy Ray; I credit

Organizer Berry Morrisette over William McCain; I credit

Organizer Danny Murray over Lola Ford, Allen Butcher,

Katherine Schuman, and Adelle Williams; I credit Organizer

Cynthia Allgood over Dorethea Holley and Venus McAl-

lister, I credit Organizer Charles Garber over Jamie Turner,

I credit Organizer Juanita Fridley over Richard Davis, Deb-

orah Ann Moser, and Will March Jr.; I credit Organizer Pat-

rick Burgwin over Pamela LeJeune; I credit Organizer

Russell Wise over Michael Gray, Ronald Taylor, and Harry

Fitzpatrick; I credit Organizer Jim Green over Barbara Ridd-

ick, Mary Johnson, Shirley Nease, Barbara Wilson, Larry

Parker, Crystal Frazier, and Frank Davis; I credit Organizer

Donna McNutt over Terry Huffstetler, John Mehan, Sandra

Carvey, William McConnell, and Frank Davis; I credit

Organizer Steven Henry over Aurelia Watts, Cordelia Beas-

ley, and Julie Borman; I credit Organizer Tom Rogers over

Evelyn Chappell, Hatti Edwards; Shelia Morgan, Pauline

13

Pawhit, Frank Flora, Gloria Love, Theresa Robles, and

Charlene Augson; I credit Organizer Vera Harrison over

Shirletta Pope, Shirley Luter, and Jessica Goode; I credit

Organizer Jim Jarboe over Janet Spence; I credit Organizer

Mark Frederici over Catherin Lattuga; I credit Organizer

Paul Evans over Vickie Brown; I credit Organizer Chad

Yound over Harry Parker, I credit Organizer Willie Snow

over Grace Calloway; I credit Organizer Lynn Colbert over

Vickie Shatzoff, Rowmesa Hoyen, Chris Thomas, and

Vanessa Devlin; and I credit Organizer Michael Heflin over

Yvonne Giles.

See J.A. Vol. I, at 377 n.3. The ALJ stated conclusorily in the text in

which this footnote appears just that "[m]any of [Be-Lo's] employees

. . . were so terrified about their job security. . . that they were ready,

willing, and able to help Be-Lo's case by [committing perjury]. . . .

Others were merely mistaken. . . ." See id. at 377. The Board just as

perfunctorily affirmed the ALJ in but a single sentence within a foot-

note. See id. at 352 n.36.

Where an ALJ provides no more than a generalized, conclusory

statement purportedly incorporating a host of individual comparative

credibility determinations with respect to multiple witnesses, we

refuse to indulge the presumption that its findings are entitled to the

ordinary deference. Cf. Burlington Industries, Inc. v. N.L.R.B., 680

F.2d 974, 977 (4th Cir. 1982) ("We are not, however, required to

accept [the] ALJ's credibility determinations where they are not sup-

ported by substantial evidence."). Otherwise, savvy ALJ's could sim-

ply ground their judgments in broad, categorical statements that they

credit all of one party's witnesses and discredit all of the other party's

witnesses, and thereby effectively insulate their decisions from mean-

ingful judicial review.

Here, for example, we suppose it is possible that the ALJ's finding

that each and every one of the Union's thirty-seven witnesses was

more credible on the stand than each and every one of the company's

forty-three witnesses was "simply the happenstance result of a dispas-

sionate consideration of the substantive testimony of the [eighty] wit-

nesses in question." Fieldcrest Cannon, Inc. v. N.L.R.B., 97 F.3d 65,

78 (4th Cir. 1996) (Luttig, J., concurring in part and dissenting in

14

part). However, the far more likely explanation, particularly given the

testimony by Kim Howell, is simply that Be-Lo was never provided

a fair chance to dispute the validity of the Union's cards on the

grounds that they were obtained under false pretenses.

The ALJ counted other highly questionable Union authorization

cards as well. For example, in N.L.R.B. v. Heck's, Inc., 386 F.2d 317

(4th Cir. 1967), we held that cards obtained by supervisors cannot be

counted in determining a union's majority status unless there is "other

proof of voluntariness," reasoning that,

[a supervisor's] day to day authority over employees pro-

vide[s] a basis for potential tyranny when improperly exer-

cised by a supervisor thwarted in his aim to obtain union

recognition, and an employee properly could doubt his abil-

ity to obtain protection by appeals to higher company

authority.

Id. at 322. Despite our clear holding in Heck's, the ALJ counted 15

cards that were indisputably obtained by supervisors. The ALJ also

counted 13 cards not authenticated by any witness, see J.A. Vol. I, at

315-16, based upon its own comparison of the signatures on the cards

with the signatures on the respective employees' W-4 forms, even

though Federal Rule of Evidence 901(b)(3) allows authentication by

comparison only where the trier of fact has made the comparison with

"specimens" which themselves "have been authenticated."4 Even in

_________________________________________________________________

4 At one point during a colloquy between the ALJ and the Union with

regard to the challenged authorization cards, the Union offered to call a

lay witness to compare the signatures on the authorization cards with the

signatures from the respective employees' W-4 forms. The ALJ stated

that that would not be necessary, and the company agreed that such

would be unnecessary, that the judge could make the comparison without

lay assistance. After the company agreed that a lay witness was unneces-

sary to compare the sets of signatures, the ALJ said, in an impromptu

statement, that the parties had stipulated that the W-4s were the authentic

W-4s from the company's files. Insofar as we can discern, the parties

never stipulated to anything. However, even if the company's silence in

response to the ALJ's off-hand remark, which remark did not call for any

response from the company's counsel, were understood as an affirmative

15

Action Auto Stores, 298 NLRB 875 (1990), enfd. mem. 951 F.2d 349

(6th Cir. 1991), upon which the Board relied in affirming the ALJ's

admission of these particular cards, see J.A. Vol. I, at 352 n.36, the

ALJ compared the signatures on the cards "with the same authenti-

cated specimens utilized by the expert witnesses," which were

"known to bear the [employees'] signatures." Action Auto, 298 NLRB

at 879; see also N.L.R.B. v. General Wood Preserving Co., 905 F.2d

803, 811 (4th Cir. 1990) (noting that authenticity was proven by com-

paring signatures "with what the undisputed evidence established to

be the authentic specimens").

In the aggregate, these actions by the ALJ, even if not error for rea-

sons that are not apparent in the record, only contribute to our concern

that the Union's majority status was one of agency construct, rather

than grassroots support.5

B.

Even if the Board had properly found that pro-Union employees

constituted a majority on March 20, the Board nonetheless erred in

_________________________________________________________________

stipulation, it was a stipulation at most to the authenticity of the forms

generally, not a stipulation to the signatures on those forms.

Not even the Union's counsel seems to have believed that the parties

stipulated to the authenticity of the signatures on the W-4 Forms. When,

subsequently, he separately introduced into evidence each W-4 Form, he

repeatedly and consistently recited that each form only "purportedly" was

signed by the named individual, a careful representation that obviously

carried with it the implicit acknowledgment that the signature had never

actually been authenticated. See J.A. at 1082-97. In fact, the ALJ himself

referenced the W-4s in the same way, clearly suggesting that not even he

believed that the parties had stipulated to the authenticity of the signa-

tures. Id. at 1087 ("Why don't you state what it is though, you know, the

number and the authorization card of so and so and the W-4 purportedly

from the same person." (emphasis added)).

5 Because the General Counsel never made the requisite showing that

the Union achieved majority status, it follows a fortiori that the Board

erred in holding that Be-Lo violated section 8(a)(5) by declining to bar-

gain with the Union after March 20, 1991.

16

imposing a bargaining order on the facts in this case. "[Section]

8(a)(1) violations alone are not enough to support a Gissel order,"

Appletree Chevrolet II, 671 F.2d at 841; rather, the second part of the

Appletree Chevrolet I four-part test imposes, in effect, two additional

requirements. First, the employer's misconduct must have been wide-

spread and far-reaching, and second, this pervasive misconduct must

have had the demonstrable effect of dissolving the majority once pos-

sessed by the Union. Although, in imposing its bargaining order, the

Board characterized Be-Lo's violations as "hallmark," see J.A. Vol.

I, at 353, "[n]ot every `hallmark' violation amounts to exceptional

misconduct under Gissel," Kinney Drugs, Inc. v. N.L.R.B., 74 F.3d

1419 (2nd Cir. 1996), due in no small part to the Board's increasing

practice of characterizing even relatively minor unfair labor practices

as "hallmark." Here, the record belies any assertion either that the

company's violations were widespread or that they eroded the

Union's majority status.

In order to be considered "pervasive," a company's unfair labor

practices must, as the word connotes, be felt throughout all, or virtu-

ally all, of the bargaining unit. Be-Lo operated thirty retail grocery

stores in the bargaining unit during the period in question and, accord-

ing to the Board's findings (a number of which we reverse herein as

erroneous), a total of only some forty-three individual section 8(a)(1)

violations were committed in approximately half of Be-Lo's stores,6

and individual section 8(a)(3) violations occurred in only eight of the

_________________________________________________________________

6 In its brief before this court, the Union alternatively claimed that the

ALJ held that Be-Lo committed "some 50" individual section 8(a)(1)

violations, Intervenor's Br. at 6, and "over 70" violations of section

8(a)(1), id. at 7. Similarly, the Board claimed that the ALJ found "more

than 70" individual violations of section 8(a)(1), Appellee's Br. at 12,

and "at least 80-some" violations, id. at 41. The confusion of the Board

and Union with respect to the number of section 8(a)(1) violations found

by the ALJ is doubtless attributable in part to the fact that neither the

ALJ nor the Board in their opinions totaled the number of violations that

were found by the ALJ, preferring instead simply to refer to the section

8(a)(1) and section 8(a)(3) violations collectively as "repeated" or "nu-

merous," J.A. Vol. I, at 360, 374 (ALJ's opinion), and "over fifty," id.

at 352 (Board's opinion). In our review of the ALJ's opinion, however,

we have identified only some forty-three section 8(a)(1) violations aris-

ing from Be-Lo's treatment of individual employees.

17

stores.7 Despite the Board's reflexive characterization of these viola-

tions as "hallmark," it is questionable whether a number of these were

violations at all. The ALJ held, for example, that Be-Lo supervisor

Cheryl Perras "unlawfully interrogated [Evelyn] Keyes and threatened

store closure, loss of jobs, and reduced hours for employees if the

Union was selected" when Perras merely "asked Keyes what she

(Keyes) thought about the Union" and "went on to tell Keyes that if

the Union got in and wages were raised some stores might close and

people lose their jobs or hours would be cut." See J.A. Vol. I, at 285.

The ALJ also found that the company violated section 8(a)(1) when

a co-manager of one of Be-Lo's stores simply mentioned to an

employee that he had seen the employee with a Union organizer. As

the ALJ described the violation:

In January 1991 Cottrell was approached by union organizer

Karen Gompers and shortly thereafter co-manager of store

102 David Rodriguez told Cottrell he had seen her with the

Union organizer. This statement by Rodriguez to Cottrell

creates the impression that Cottrell's union activity was

under surveillance and being monitored by management in

violation of Section 8(a)(1) of the Act.

Id. at 289. And there are numerous similar examples throughout the

ALJ's opinion.

Even were the content of the remarks themselves more serious,

these violations, collectively, would still not qualify as pervasive. Vir-

tually all of the forty-three section 8(a)(1) violations and the fourteen

section 8(a)(3) violations found by the Board arise from a statement

or an action by a single supervisor to a single employee outside the

presence of others. As a consequence, only some 40 of Be-Lo's 756

employees (less than six percent of Be-Lo's work force) were directly

affected by these individual violations. Unfair labor practices that

impact such a small portion of the bargaining unit do not qualify as

_________________________________________________________________

7 The Board, reversing the ALJ, also justified its pervasiveness finding

with the fact that Be-Lo violated the Act by distributing its pink slip flyer

to all of its employees shortly before the election. As we explain infra

Section IV, we agree with the ALJ that the company's distribution of the

pink slip flyer did not constitute a violation of section 8(a)(1).

18

pervasive. See Somerset Welding & Steel, Inc. v. N.L.R.B., 987 F.2d

777, 780 (D.C. Cir. 1993) (refusing to enforce bargaining order where

only ten percent of the employees were directly affected by the

employer's unfair labor practices); Avecor, Inc. v. N.L.R.B., 931 F.2d

924 (D.C. Cir. 1991) (refusing to enforce bargaining order; six per-

cent of labor force directly affected).

Finally, even if the violations here had been of both the number

and seriousness that could support a finding of pervasive violation,

there is no evidence that Be-Lo's practices "dissipat[ed] a previous

union majority." Appletree Chevrolet II, 671 F.2d at 841. In Appletree

Chevrolet II, we held that concrete evidence, not "pure[ ] speculat-

[ion]," must support a Board determination that a union's majority

status was dissipated by pervasive unfair labor practices. Id. Viola-

tions of the kind and number at issue here simply could not have dis-

solved the Union's majority status in Be-Lo's 756 member employee

bargaining unit absent wide dissemination, of which there is no evi-

dence in this record. The record reflects that Be-Lo's work force is

transient by nature, and that its employees are widely dispersed

throughout thirty separate stores in seven different cities. Even at the

same store, employees may have little contact with their fellow

employees who work different shifts. Common sense suggests that

this is not the type of corporate workplace in which a relatively few

statements made to, or employment actions taken against, single indi-

viduals in particular stores are likely to affect Union support

company-wide. And the record in this case confirms this common-

sense assessment that the effects of the individual violations were

insignificant. During the election campaign period of January 26 to

March 20, the Union obtained 69 new authorization cards, of which

50, or 72%, were procured from employees working at the fifteen

stores in which Be-Lo committed its "unfair labor practices." Thus,

if the unfair practices had any real effect at all (which we doubt), it

would appear that they galvanized support for the Union. Cf. Red

Oaks Nursing Home, 633 F.2d at 510 ("[T]he most compelling evi-

dence that a bargaining order was not warranted is the clear evidence

in the record that the employer's unfair labor practices did not drive

the employees directly involved to abandon the union.").

C.

Even if the incidents of impermissible conduct are pervasive and

erode a union's majority status, the Board must still carefully analyze,

19

in record findings, the "continuing impact" of those violations. See

Appletree Chevrolet II, 671 F.2d at 841 ("The continuing impact of

[pervasive unfair labor practices] is the important matter."); Appletree

Chevrolet I, 608 F.2d at 996-97. Or, as the Sixth Circuit has held, "in

reaching its determination to issue a bargaining order, the Board must

make factual findings and must support its conclusion that there is a

causal connection between the unfair labor practices and the probabil-

ity that no fair election could be held." Henry Bierce Co. v. N.L.R.B.,

23 F.3d 1101, 1110 (6th Cir. 1994) (emphasis in original) (internal

quotation marks omitted). Moreover, the Board also "must make a

detailed analysis assessing . . . the potential effectiveness of ordinary

remedies." Appletree Chevrolet I, 608 F.2d at 997 (internal quotation

marks omitted). When the Board issues a bargaining order without

analyzing and "explain[ing] with specificity" why more traditional

remedies such as a cease and desist order, posted notice, or similar

less drastic remedies would not be equally effective, that order cannot

stand. Id. at 997 n.10 (quoting N.L.R.B. v. Craw, 565 F.2d 1267, 1272

(3d Cir. 1977)); see also id. at 997-98; Red Oaks Nursing Home, 633

F.2d at 509 ([C]onsideration of the effectiveness of ordinary remedies

. . . [is] prerequisite for a bargaining order).

Plainly, the Board did not undertake the requisite comprehensive

analysis here. The Board's "continuing impact" analysis was limited

to a summary of Be-Lo's violations and management's involvement

in those violations, followed by the conclusory comment, unsupported

by any evidence, that "`the cloud created by these violations [is]

likely to linger' and cannot be dispersed by a traditional cease-and-

desist order." J.A. Vol. I at 354 (quoting Avecor, 931 F.2d at 938

(dicta)). This is not the "detailed analysis" of the "continuing effect

of misconduct, and the potential effectiveness of ordinary remedies"

that we require under Appletree Chevrolet I, 608 F.2d at 997 (internal

quotation marks omitted).

If ever a fair rerun election would be possible, then it is here, given

the substantial turnover in Be-Lo's work force and other changed cir-

cumstances since the violations occurred. An inordinate amount of

time has passed since Be-Lo's unfair labor practices were committed

and, as one of our sister circuits has noted, the adverse effects of all

but the most egregious unfair labor practices become "dissipated"

"[w]ith the passage of time," "particularly when that conduct

20

amounted to insubstantial violations in the first place." Laverdiere's

Enterprises, 933 F.2d 1045, 1055 (1st Cir. 1991). The election cam-

paign in which almost all of Be-Lo's unfair labor practices occurred

was conducted in February and March of 1991. The ALJ did not issue

its decision until September 15, 1993, and the Board did not issue its

order until July 15, 1995. Thus, two years elapsed between the elec-

tion and the ALJ's decision, and another two years elapsed before the

Board rendered its decision affirming the ALJ. "[I]nordinate delay

attributable to the Board `cannot be ignored in developing a remedy.

. . .'" Id. at 1055 (quoting Texas Petrochemicals Corp. v. N.L.R.B.,

923 F.2d 398, 406 (5th Cir. 1991)). It strains credulity to believe that

Be-Lo's unfair labor practices, such as they were, had such long last-

ing effects that a fair rerun election could not have been held four

years later, much less today, some six years after the original viola-

tions occurred.

Even more important than the passage of time, the vast majority of

Be-Lo's workers who were present when Be-Lo committed the labor

violations are no longer even employed at Be-Lo. We have long held,

contrary to the Board's view, see, e.g., Q-1 Motor Express, 308

N.L.R.B. 1267 (1992); Salvation Army Residence, 293 N.L.R.B. 944,

945 (1989), that "significant employee turnover through normal attri-

tion" is highly relevant to determining the necessity of a bargaining

order and well "may make a bargaining order inappropriate." So-Lo

Foods, 985 F.2d at 128-29; see also Appletree Chevrolet II, 671 F.2d

at 841-42, and we reaffirm those decisions today. Significant

employee turnover often (if not usually) renders a bargaining order

inappropriate. Not only is the possibility of a fair rerun election great

when "many of the intimidated employees have moved on" and been

replaced by new workers who have not witnessed the company's

unfair labor practices, Avecor, 931 F.2d at 936, but "the issuance of

a bargaining order in the face of significant employee turnover risks

unjustly binding new employees to the choices made by former ones,"

J.L.M., Inc. v. N.L.R.B., 31 F.3d 79, 84 (2nd Cir. 1994). See Appletree

Chevrolet II, 671 F.2d at 841-42 (declining to enforce a Gissel order

in light of a 75% employee turnover).

Over sixty-six percent of Be-Lo's employees turned over between

the March 21, 1991, election and entry of the Board's order. See J.A.

Vol. I, at 353. At oral argument, neither counsel for the Board nor

21

counsel for the Union could cite us to any case in which a Gissel Cat-

egory II order was enforced in the face of employee turnover so high.8

On the other hand, numerous courts have denied enforcement of

Gissel Category II orders where workplace turnover was considerably

less than that at Be-Lo. See, e.g., N.L.R.B. v. Marion Rohr Corp., 714

F.2d 228, 231 (2nd Cir. 1983) (order not enforced in light of 35%

turnover); N.L.R.B. v. Chester Valley, Inc., 652 F.2d 263, 273 (2nd

Cir. 1981) (order not enforced in light of 34-60% turnover); Red Oaks

Nursing Home, 633 F.2d at 510 (order not enforced in light of 35-

64% turnover). Of course, high employee turnover is an even more

important consideration where, as here, it was unlikely, because of

separate work shifts and multiple business locations, that the unfair

labor practices had much impact company-wide in the first place.

While acknowledging that only one third of the employees

employed when the violations occurred still remained with the com-

pany when the mandatory bargaining order issued, the Board dis-

missed the employee turnover evidence with the terse observation that

"`[p]ractices may live on in the lore of the shop and continue to

repress employee sentiment long after most, or even all, original par-

ticipants have departed.'" J.A. Vol. I, at 353 (quoting Bandag, Inc.,

583 F.2d 765, 772 (5th Cir. 1978) (dicta)). Absent substantial eviden-

tiary support that the effects of unlawful practices have in fact contin-

ued to be felt in the workplace, we believe that such inferences as to

the likely effect of "lore of the shop" have no place in the calculus of

whether a mandatory bargaining order is warranted. Under such a

speculative and indeterminate standard, the Board could decide in

every case that "the possibility of a fair rerun election is slight," even

_________________________________________________________________

8 In So-Lo Foods, although we noted that "turnover through normal

attrition may make a bargaining order inappropriate and is relevant to

th[e] inquiry" of whether to issue a mandatory bargaining order, 985 F.2d

at 128-29, we declined to allow the company to supplement the record

before us so as to include an affidavit in which the company's Director

of Personnel represented that there had been a 73% employee turnover.

We did so, however, because all but "perhaps a small portion of the turn-

over" occurred after the Board's decision. See id. at 128 n.6. Indeed, the

turnover that had occurred prior to the ALJ's decision was so minimal

that the ALJ refused even to hear the evidence, a decision with which the

company itself implicitly agreed. Id.

22

if the entire work force had turned over since commission of the

unfair labor practices, thus eviscerating one of the most important of

the heightened requirements for a Gissel Category II mandatory bar-

gaining order. Just as the Board's reliance on boiler-plate language

discussing egregious misconduct in Appletree Chevrolet I would have

led "in effect [to] the automatic issuance of bargaining orders," 608

F.2d at 998, so also here would talismanic invocation of the "lore of

the shop," if approved, serve automatically to validate the issuance of

bargaining orders. The perniciousness of such a blind acceptance of

the "lore of the shop" is evident here, as there was no evidence what-

soever that the effects of Be-Lo's unfair labor practices were "living

on in the lore of Be-Lo's shops." Indeed, the highly transient nature

of Be-Lo's work force, and the fact that the company does business

in some 30 different locations in seven different cities, underscore the

likelihood that whatever "lore" existed in Be-Lo's "shops" would

have had little chance of "living on" for as many years as have

elapsed.

In the end, it is apparent that the Board here -- much like the

Board in Appletree Chevrolet -- simply "list[ed] unfair labor prac-

tices" and "followed [with a] conclusory statement that a fair election

is no longer possible," "disregard[ing the] factors that militate against

enforced bargaining," Marion Rohr, 714 F.2d at 231 (citing Appletree

Chevrolet I, 608 F.2d at 997-98), and undertaking only the most

superficial analysis of alternative remedies. Mandatory bargaining

simply cannot be ordered on such a basis.

III.

The Board, reversing a contrary holding by the ALJ, held that Be-

Lo had discriminatorily denied Union members access to its property

in violation of section 8(a)(1) when it sought and maintained state

court injunctions to remove paid non-employee Union picketers from

the sidewalks and parking lots of certain stores in the period follow-

ing the election. The Board erred in this conclusion also.

The Board held that Be-Lo's efforts to exclude non-employee

Union picketers infringed the employees' rights under section 7 of the

Act, which provides that "[e]mployees shall have the right to self-

organize, to form, join or assist labor organizations." 29 U.S.C. § 157.

23

The Supreme Court has held, however, that, once an employer's pri-

vate property rights are established under state law, the employer gen-

erally "cannot be compelled to allow distribution of union literature

by non-employee organizers on his property," Lechmere, Inc. v.

N.L.R.B., 502 U.S. 527, 533 (1992), even under the authority of sec-

tion 7. The Board recognized as much, see J.A. Vol. I, at 348, but

nonetheless held that an employer may forfeit its private property

rights and violate section 8(a)(1) of the Act by denying access to

Union picketers while allowing other distribution -- whether such

other distribution be charitable, political, or civic -- because such

conduct "discriminate[s] against the union" in a manner forbidden by

N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). See

J.A. Vol. I, at 348. Because nonemployees' claims to access to an

employer's private property are at their nadir when the nonemployees

wish to engage in protest or economic activities, as opposed to organi-

zational activities, see U.F.C.W. v. N.L.R.B., 74 F.3d 292, 300 (D.C.

Cir. 1996), we seriously doubt, as do our colleagues in other circuits,

that the Babcock & Wilcox disparate treatment exception, post-

Lechmere, applies to nonemployees who do not propose to engage in

organizational activities. See, e.g., Cleveland Real Estate Partners v.

N.L.R.B., 95 F.3d 457, 465 (6th Cir. 1996). If it does, we further

doubt that an employer's approval of limited charitable or civic distri-

bution while excluding union distribution constitutes discrimination.

See id. ("No relevant labor policies are advanced by requiring

employers to prohibit charitable solicitations in order to preserve the

right to exclude nonemployee distribution of union literature when

access to the target audience is otherwise available."). We need not

decide this issue today, however, because the record in this case

amply reflects that Be-Lo had an enforced policy of disallowing solic-

itation and distribution (as even appellees must concede) and that, as

the ALJ found, the solicitation that occurred at the several of Be-Lo's

stores was only "isolated and sporadic," J.A. Vol. I, at 375.

Be-Lo has had in place a broad no-solicitation policy in all of its

stores for more than twenty years, and, in furtherance of this policy,

the company has always posted no-solicitation signs in the front win-

dows of its stores. See J.A. Vol. III, at 1067-74, 1124-59, 1190-92;

J.A. Vol. IV., at 1402-04. As the ALJ found, "Be-Lo's policy was a

very strong and broad policy which prohibited all solicitations on its

property." Id. at 375. While the record reflects that some groups did

24

occasionally engage in distribution at a handful of the company's

stores without the knowledge or approval of Be-Lo's owners, execu-

tives, or store-level management, these sporadic activities do not evi-

dence that Be-Lo took a "laissez-faire attitude" toward enforcement

of its no-solicitation policy, which was the equivalent of purposeful

discrimination. The record reflects, as stated by the Board:

that Muslims selling oils and incense were present on a

"pretty constant" basis in front of Store 232 and were pres-

ent on a "regular" basis in front of Store 236. Further, an

"occasional" Jehovah's Witness distributed the Watchtower

magazine at Store 148 and on one occasion a local Lions

Club solicited at that store. Also, Lyndon LaRouche follow-

ers on a "couple of occasions" handed out literature at Stores

28 and 120. In addition, a person sold a cookbook inside

Store 102 and "occasional[ly]" individuals sold Girl Scout

cookies and greeting cards inside Store 232.

J.A. Vol. I, at 348. These few solicitations, which occurred in but a

few of Be-Lo's thirty stores over the period of a year and a half, are

no more than could be expected at any large retail chain that was zeal-

ously defending its property rights. Certainly, they cannot be said to

constitute evidence that Be-Lo "allowed other distribution" as the

Court intended that phrase in Babcock. To affirm the Board's contrary

finding on this record would be tantamount to a holding that if an

employer ever allows the distribution of literature on any of its prop-

erty, then it must open its property to paid nonemployee union picket-

ers. We are confident that the Supreme Court never intended such a

result. Cf. Cleveland Real Estate, 95 F.3d at 465 ("To discriminate in

the enforcement of a no-solicitation policy cannot mean that an

employer commits an unfair labor practice if it allows the Girl Scouts

to sell cookies, but is shielded from the effect of the Act if it prohibits

them from doing so."). The Board therefore simply erred when it held

that Be-Lo violated section 8(a)(1) by seeking state court injunctions

to enforce its no-solicitation policy against the Union's picketers.9

_________________________________________________________________

9 Because we hold that Be-Lo did not violate the Act by seeking to

obtain and enforce state court injunctions to exclude the Union's picket-

ers, it again follows a fortiori that the Board also erred when, through a

retroactive application of its own decision in Loehmann's Plaza, 305

N.L.R.B. No. 81 (1991), the Board held Be-Lo liable for the Union's

attorneys' fees and costs in defending the injunction action.

25

IV.

The Board further erred, we are convinced, in reversing the ALJ's

conclusion that the distribution of Be-Lo's pink slip flyer did not vio-

late section 8(a)(1). As Be-Lo notes, the Board selectively quoted the

flyer, the language of which, when read out of context, might well

support a conclusion that the pink slip constituted a "threat of repri-

sal." The Board only quoted the text of the mock pink slip purportedly

signed by other grocery stores that had closed following unionization

in the nearby area, together with a portion of a sentence from the flyer

which read, "you may want to look at what the [Union] got for their

former dues payer's in this area -- a pink slip." J.A. Vol. I, at 341.

The pink slip read as follows:

Dear Unionized Employees:

I regret to inform you that because we have lost our ability

to compete in this extremely competitive market, we shall

be forced to close this store and put you out of work.

J.A. Vol. IX, at 3238-39.

The Board held that the distribution of this flyer "threatened that

[Be-Lo's employees] would get a `PINK SLIP' if they voted in the

Union and became `Unionized Employees,'" because the recipients

could easily identify with the employees of the other stores who had

lost jobs and thus "reasonably conclude that if they voted in the

Union, they would be the `Unionized Employees' addressed in the

`Pink Slip' who would suffer store closure and job loss." J.A. Vol. I,

at 341.

Even assuming that the employees who received the pink slip could

have understood the company's message as one that closure of stores

might result were the company to unionize, the distribution of this

flyer would nonetheless be permissible under the Act, as the ALJ

held. As the ALJ explained, an employer has the right to "make a pre-

diction as to the precise effects he believes unionization will have on

his company . . . [and such a prediction may] convey an employer's

belief as to demonstrably probable consequences beyond his control."

26

See Gissel, 395 U.S. at 618. At worst, the pink slip flyer was, as the

ALJ held, a prediction, based upon the experiences of similarly-

situated stores, of the probable economic consequences for Be-Lo and

its employees if Be-Lo were to become unionized, made in response

to the Union's repeated claims that unionization represented "job

security for all," see, e.g., J.A. Vol. V, at 1690, and that Be-Lo was

"telling half truths," "outright lies," "distorting the facts," and "spread-

ing propaganda." See, e.g., id. at 1706. The flyer was not a threat that

the company would close its doors in retaliation if the Union pre-

vailed in the election. See J.A. Vol. I, at 360. In fact, the portions of

the flyer omitted by the Board in discussing the flyer confirm as

much:

Dear Be-Lo Associate,

For several months you have been hearing sweet-

sounding promises from the out-of-town union organizers,

about higher wages, job security, grievance procedures,

seniority rights and other expensive benefits which are easy

to promise but hard to deliver.

At the same time they have also fed you militant anti-

BeLo distortions charging this company - your company -

with "half truths, lies and propaganda".

Half-truths? Lies? Propaganda? When you're trying to

figure out who is giving you the facts and who is promising

you the moon, you may want to take another look at what

the UNITED FOOD AND COMMERCIAL WORKERS

UNION got for their former dues payers in the area- A

PINK SLIP.

We will do everything we can to prevent this from hap-

pening to you, whether or not the union is voted in, but you

should consider what the union has DELIVERED in the past

before you believe what they PROMISE in the future .

J.A. Vol. IX, at 3238 (emphasis added). When the full text of the flyer

is read, and the flyer is understood in the context of the claims being

27

made by the Union against Be-Lo, it is evident that Be-Lo was not

threatening to "take action solely on [its] own initiative for reasons

unrelated to economic necessities." See Gissel, 395 U.S. at 618. Even

the Board is hardpressed to characterize the flyer as more than a

"carefully phrased" "prediction" "as to demonstrably probable conse-

quences beyond [Be-Lo's] control." See Gissel, 395 U.S. at 618. It

can say only that the flyer "reasonably tended to cause company

employees to infer that they would be the `Unionized Employees'

addressed in the pink slip, who would suffer the announced store clo-

sure and job losses if they voted for the Union." Appellee's Br. at 10.

Accordingly, as the ALJ held, the flyer "constitute[d] free speech and

legitimate propaganda," see J.A. Vol. I, at 279, protected under sec-

tion 8(c) of the Act. See DTR Industries, Inc. v. N.L.R.B., 39 F.3d

106, 113-14 (6th Cir. 1994).

V.

The Board held that Be-Lo discharged or constructively discharged

eleven individual employees in violation of section 8(a)(3). Although

we affirm the Board's conclusions that Be-Lo violated section 8(a)(3)

with respect to six of these individuals, we hold that the Board erred

in affirming the ALJ's finding that the remaining five individual

employment actions taken by Be-Lo were unlawful. In holding that

Be-Lo committed violations when it did not recall employee Erwin

Hatchett and when it discharged employees Shirley Terry, Pamela

Jackson, Gwen Andrews, and Michael Salazar, the ALJ relied exclu-

sively on evidence that these employees were strongly pro-Union and

that they were discharged at a "suspicious time" (meaning during the

election campaign period). It has long been the rule that "the mere

fact that an employee -- even a union activist-- [is] discharged dur-

ing a union campaign, standing alone, will not support a discrimina-

tory finding if there is a `supportable cause' for the discharge."

Appletree Chevrolet I, 608 F.2d at 993 n.5 (emphasis added); see

also, e.g., McLean Trucking Co. v. N.L.R.B., 719 F.2d 1226, 1228-33

(4th Cir. 1983) (reversing violation based on evidence showing that

a known union activist was discharged at a suspicious time, where

other evidence showed that "supportable cause" existed because of the

employee's absenteeism); Wellington Mill Div., West Point Mfg. Co.

v. N.L.R.B., 330 F.2d 579, 586 (4th Cir. 1964). With regard to each

of these five personnel, Be-Lo presented unrebutted evidence of a

28

"supportable cause" for the discharge. Therefore, the ALJ erred in

holding that these personnel actions violated the Act.

As noted by both the ALJ and the Board, Be-Lo initially laid off

employee Erwin Hatchett because of the general decline in business

related to the deployment of troops in the Persian Gulf. The unrebut-

ted evidence supports Be-Lo's contention that it did not recall Hat-

chett because no new meat cutter positions were available at the

stores in Hatchett's area. See J.A. Vol. I, at 345-46; Vol. II, at 671-72.

The ALJ and the Board nonetheless held that Be-Lo's failure to recall

Hatchett violated section 8(a)(3) solely because there existed evidence

that Hatchett was "at least a competent employee, and [Be-Lo] knew

of his support for the Union, and . . . failed to recall him as job open-

ings arose." J.A. Vol. I, at 346. With the exception of the character-

ization of Hatchett as a competent worker, which adds nothing of

substance to the inquiry, this is the same type of evidence which we

held insufficient in Appletree Chevrolet I to support the Board's find-

ing of section 8(a)(3) violations.

The Board likewise erred in holding that Be-Lo violated the Act by

discharging employees Terry, Jackson, Andrews, and Salazar. The

Board held that Shirley Terry's discharge was unlawful solely on the

ground that she was fired after Terry's "pro-Union stance was well-

known to [Be-Lo]," and after her picture appeared in a Union flyer.

J.A. Vol. I, at 343; see also id. at 366. In the face of Be-Lo's unrebut-

ted evidence that Terry was discharged for admittedly giving away

food to a co-employee without store authorization, see J.A. Vol. IV,

at 1507, the Board and the ALJ were unjustified under Appletree

Chevrolet I in concluding that Terry's dismissal was an act of "harass-

ment" because of her "prounion posture." J.A. Vol. I, at 343-344.

Similarly, the Board was not justified in concluding, solely from the

evidence that Be-Lo was "well aware" of Pamela Jackson's prounion

activities and that Jackson had received a prior favorable work perfor-

mance evaluation, J.A. Vol. I, at 373, that Jackson was discharged for

discriminatory reasons, when the company presented unrebutted evi-

dence that Jackson was discharged for failing to comply with the

company's request to provide a doctor's note after she had called in

sick under suspicious circumstances. See J.A. Vol. I, at 258-59; J.A.

Vol. III, at 790-97; J.A. Vol. V, at 1659-60. In holding that Gwen

Andrews, who was "expelled" from her job by a pro-union manager,

29

was illegally discharged, the ALJ yet again relied solely on the legally

insufficient evidence that Andrews was discharged two weeks before

the election and was a known union supporter, see J.A. Vol. I, at 371,

when the company presented unrebutted evidence that Andrews was

expelled for refusing to follow her manager's instructions. See id. The

Board's conclusion that Be-Lo violated the Act when it discharged

Michael Salazar is, for the same reason, unsustainable. Although Be-

Lo clearly knew of Salazar's prounion feelings and indisputably dis-

charged him during the election campaign, Be-Lo's evidence that it

fired Salazar because of his pervasive absenteeism stood unrebutted.

See J.A. Vol. IV, at 1383, 1386.

We uphold, however, the remaining three violations challenged by

Be-Lo on appeal -- the constructive discharges of Jaime Cottrell and

Kelly Call and the discharge of Sabrina Frazier. In those cases,

although Be-Lo presented compelling evidence that the employees at

issue either voluntarily quit or good cause existed, there was substan-

tial evidence in the record, in addition to the employee's pro-union

stance and the timing of his or her departure, which supports the

ALJ's finding of a Section 8(a)(3) violation. There is direct evidence

in the record, for example, that Cottrell was transferred from store

102 to store 67 as punishment for prounion activities and that she was

unable to work as a result of this transfer. Cottrell testified that Be-

Lo's district manager told her that since "he could not fire her" he

would send her to store 67, "an antiunion store," where "[a]ll of my

employees hate the union" and "want to know who the hell Jaime

[Cottrell] is," and also that he would "be on her like [a] fl[y] on shit."

J.A. Vol. I, at 342, 366; J.A. Vol. II at 545-58. And while Be-Lo

claims that Kelly Call quit voluntarily, there was direct evidence that

Kelly Call's produce manager expelled her solely for wearing a Union

t-shirt, and that thereafter she was informed by a store manager that

she had "quit." See J.A. Vol. I, at 370. And although the ALJ relied

in part on the suspicious timing of Sabrina Frazier's discharge in

holding that discharge to be unlawful, see J.A. Vol. I, at 372, this

decision does not run afoul of Appletree Chevrolet I because the

record contains evidence that a Be-Lo manager told Frazier she was

"digging her own grave" by appearing in a pro-Union flyer shortly

before her discharge, and that the reason that store officials were "rid-

ing her ass" was because of her support for the Union. J.A. Vol. II,

at 719, 729. The additional direct evidence of discriminatory dis-

30

charge in these three cases sets them apart from the other five chal-

lenged on appeal, and provides sufficient, albeit not conclusive,

support for the ALJ's findings.

We also affirm the Board's holdings, expressly uncontested by Be-

Lo on appeal, that Be-Lo violated Section 8(a)(3) by discharging

employees Angela Cox, Kim Howell, and Lavonne Billups.

CONCLUSION

The Board's order of mandatory bargaining is reversed, as are its

conclusions that Be-Lo violated section 8(a)(1) by distributing the

pink slip flyer and by seeking injunctions to prevent nonemployee

picketing, and that the company violated section 8(a)(3) by not recall-

ing Erwin Hatchett and discharging Shirley Terry, Pamela Jackson,

Gwen Andrews, and Michael Salazar. We affirm the Board's findings

that Be-Lo violated section 8(a)(3) when it discharged employees

Jaime Cottrell, Kelly Call, Sabrina Frazier, Angela Cox, Kim Howell,

and Lavonne Billups. The case is remanded to the Board for entry of

such order as remains appropriate in light of the opinion herein.

REVERSED IN PART, AFFIRMED

IN PART, AND REMANDED

31

Volume 2 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BE-LO STORES,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

No. 96-1575

Respondent,

UNITED FOOD AND COMMERCIAL

WORKERS INTERNATIONAL UNION,

Local 400, AFL-CIO, CLC,

Intervenor.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

UNITED FOOD AND COMMERCIAL

WORKERS INTERNATIONAL UNION,

Local 400, AFL-CIO, CLC,

No. 96-1657

Intervenor,

v.

BE-LO STORES,

Respondent.

On Petition for Review and Cross-Application for

Enforcement of an Order

of the National Labor Relations Board.

(11-CA-14586, 11-CA-14775-1, 11-CA-14775-1, 11-CA-14775-2,

11-CA-14775-3, 11-CA-14775-4, 11-CA-14775-5, 11-CA-14775-6,

11-CA-14775-7, 11-CA-14775-8, 11-CA-14775-9, 11-CA-14775-10,

11-CA-14712, 11-CA-14793-1, 11-CA-14793-2, 11-CA-14793-3,

11-CA-14793-4, 11-CA-14793-5, 11-CA-14811, 11-RC-5823)

Argued: January 27, 1997

Decided: September 16, 1997

Before ERVIN and LUTTIG, Circuit Judges, and

HILTON, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Volume 1

Opinion by Judge Luttig

Volume 2

Dissent by Judge Ervin

_________________________________________________________________

Reversed in part, affirmed in part, and remanded by published opin-

ion. Judge Luttig wrote the majority opinion, in which Judge Hilton

joined. Judge Ervin wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Stanley Graves Barr, Jr., Charles Vincent McPhillips,

KAUFMAN & CANOLES, P.C., Norfolk, Virginia, for Be-Lo Stores.

John Emad Arbab, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for NLRB. Carey Robert Butsavage, BUTSAV-

AGE & ASSOCIATES, P.C., Washington, D.C., for Intervenor. ON

BRIEF: Arlene F. Klinedinst, Ashley L. Taylor, Jr., KAUFMAN &

CANOLES, P.C., Norfolk, Virginia, for Be-Lo Stores. Frederick L.

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

Aileen A. Armstrong, Deputy Associate General Counsel, Peter

Winkler, Supervisory Attorney, William A. Baudler, NATIONAL

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

George Wiszynski, BUTSAVAGE & ASSOCIATES, P.C., Washing-

ton, D.C., for Intervenor.

_________________________________________________________________

34

ERVIN, Circuit Judge, dissenting:

If the facts of this case cannot sustain a bargaining order, then

almost none will. Substantial evidence plainly supports the Board's

findings of nearly 80 violations, many of them so-called "hallmark"

violations, the vast majority of them unbriefed by Be-Lo and not even

discussed by the majority here. Among the particulars that the major-

ity does discuss, substantial evidence supports the Board's finding

that Be-Lo violated the Act when it sent its employees a mock "pink

slip" just before the election, which the Board found to constitute an

actual threat of job loss if the employees voted for the Union. In addi-

tion, substantial evidence supports the Board's finding that Be-Lo

violated the Act by disparately enforcing its no-solicitation policy to

deny Union picketers access to Be-Lo's property.

There ought to be really little question that the Board properly

issued a bargaining order in this case. Indeed, because so many of the

violations are hallmark violations, being, on the whole, "outrageous"

and "pervasive," the bargaining order was warranted even without a

showing of majority support for the Union. Although neither the ALJ

nor the Board classified whether the bargaining order fell into the first

or second category of appropriate orders under NLRB v. Gissel Pack-

ing Co., 395 U.S. 575 (1969), more than sufficient evidence supports

a determination that a Gissel order was warranted under the first cate-

gory. In any event, the Board properly determined that the Union did,

in fact, enjoy majority support. Be-Lo's attempt to introduce evidence

showing that the Union did not possess majority support, which was

rejected by both the ALJ and the Board, fails here, too, despite the

majority's characterization of the matter. Be-Lo failed to fully comply

with a subpoena requesting certain payroll records and cannot com-

plain, ex post, that the General Counsel relied on an amended

Excelsior list to establish a Gissel majority. Even if the bargaining

order is thus seen as falling within Gissel's second category, its issu-

ance was proper.

Because I believe that the majority ignores or twists precedent, our

proper standard of review, and the facts in this case, I believe that Be-

Lo's petition for review should be denied and the Board's cross-

application for enforcement of its order should be granted in its

entirety. I therefore respectfully dissent.

35

I.

Notably absent from the majority's opinion is any discussion of

this court's proper standard of review of Board decisions and orders.

The Board's decision must be upheld if its factual findings are sup-

ported by substantial evidence in the record. See Universal Camera

Corp. v. NLRB, 340 U.S. 474, 490-91 (1951); FPC Holdings, Inc. v.

NLRB, 64 F.3d 935, 942 (4th Cir. 1995); 29 U.S.C. § 160(e). This is

so "even though we might have reached a different result had we

heard the evidence in the first instance." NLRB v. General Wood Pre-

serving Co., 905 F.2d 803, 810 (4th Cir.) (citing NLRB v. Daniel Con-

str. Co., 731 F.2d 191, 193 (4th Cir. 1984)) (internal quotation marks

omitted), cert. denied, 498 U.S. 1016 (1990). "Substantial evidence

has been held to mean such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." Id. (internal quota-

tion marks and citation omitted). We have previously advised that our

inquiry should end, and the Board's order be enforced, particularly in

those circumstances where, as here, "the record is fraught with con-

flicting testimony and essential credibility determinations have been

made." NLRB v. Nueva Eng'g, Inc., 761 F.2d 961, 965 (4th Cir. 1985)

(citing NLRB v. Air Prods. and Chems., Inc., 717 F.2d 141, 145 (4th

Cir. 1983); Dubin-Haskell Lining Corp. v. NLRB, 375 F.2d 568, 571

(4th Cir. 1967)). Throughout its opinion the majority simply ignores

this well-established standard of review and engages in its own de

novo review of the evidence, substituting its own judgment for that

of the Board at almost every turn. The majority thus refuses to

acknowledge that this court sits only as an appellate court of limited

jurisdiction whose powers to review Board proceedings are not only

not plenary but have been greatly circumscribed by Congress.

Moreover, we have previously recognized that the Board possesses

a broad discretion to choose an appropriate remedy. NLRB v. Williams

Enters., 50 F.3d 1280, 1289 (4th Cir. 1995). We have therefore

reviewed that selection deferentially for an abuse of the discretion

lodged in the Board. Indeed, in Williams we stated that we "must

enforce [the Board's] choice `unless it can be shown that the order is

a patent attempt to achieve ends other than those which can fairly be

said to effectuate the policies of the NLRA.'" Id. (quoting Virginia

Elec. & Power Co. v. NLRB, 319 U.S. 533 (1943), and citing Overnite

Transp. Co. v. NLRB, 372 F.2d 765, 770 (4th Cir.), cert. denied, 389

36

U.S. 838 (1967)) (emphasis added).1 The majority fails entirely to link

this standard of review to the Board's choice of remedies in this case.

Applying these standards of review appropriately to the case at

hand, a case involving numerous egregious violations of the NLRA,

many of them hallmark violations of the most serious kind, one can

only conclude that the Board's findings are plainly supported by sub-

stantial evidence in the record as a whole and that the Board did not

abuse its discretion in its selection of remedies.

II.

In its refusal to enforce the Board's bargaining order, the majority

has focused on the forest of the Board's remedy but ignored most of

the trees that make that remedy appropriate in this case. The Board

found nearly 80 violations of the NLRA. Be-Lo contested only a

handful of those violations before us, however, and the majority con-

centrates its energies on only that handful.

Although I agree with the majority about the confusion surround-

ing the number of violations, see slip op. at 17 n.6, I disagree greatly

about the final tally. By my own careful, yet conservative, count, I

believe the Board found a total of 77 violations.2 In this total number

are several that the majority refuses to sustain, including the Board's

specific reversal of the ALJ's findings that Be-Lo's own election

campaign was not a violation of the Act and that Be-Lo had not dis-

criminatorily enforced its no-solicitation policy against the picketers.

The Board instead found that Be-Lo's threats to employees of store

closure and job loss if the Union won the election, by means of a pre-

election memorandum and "pink slip," was a violation of § 8(a)(1)

and that Be-Lo had otherwise ignored its no-solicitation policy with

_________________________________________________________________

1 The Supreme Court has recently reiterated that, because Congress has

"delegate[d] to the Board the primary responsibility for making remedial

decisions," its "consistent appraisal of the Board's remedial authority"

recognizes that the "Board's views merit the greatest deference." ABF

Freight Sys., Inc. v. NLRB, 510 U.S. 317, 323-24 (1994).

2 Because of the manner in which the ALJ used his language, I have not

counted at least six additional § 8(a)(1) violations that he may actually

have found.

37

respect to non-Union-related solicitors and thus violated § 8(a)(1) by

denying the picketers access to Be-Lo's property. The Board thus had

found two more § 8(a)(1) violations than the ALJ had, see J.A. at 340-

41, 348-50, both of which the majority, in turn, reverses. Also among

the total of 77 are the Board's adoption of the ALJ's findings that Be-

Lo violated § 8(a)(1) by maintaining the state court injunction actions

after the General Counsel had issued complaints alleging that Be-Lo's

denial of access to the Union was unlawful and that Be-Lo violated

§ 8(a)(5) by failing to bargain with the Union after March 20, 1991,

when the Union represented a majority of unit employees. The major-

ity also reverses these. In addition, the Board adopted the ALJ's find-

ings of 73 additional violations of § 8(a)(1) and (3) by, inter alia,

threatening employees with store closure, interrogating employees,

threatening employees with discharge, threatening reductions in

working hours, threatening layoffs, and discharging several employ-

ees. See J.A. at 340, 360-74. My tally does not include the Board's

reversal of the ALJ's findings that two employees, Tom DeYarmon

and Colleen Hitt, had been discharged in violation of § 8(a)(3). These

73 remaining violations are comprised of 59 § 8(a)(1) violations and

14 § 8(a)(3) violations against individual employees.3 Of the § 8(a)(3)

violations, Be-Lo concedes three of these, the majority upholds three

others, see slip op. at 28, 30-31, and neither Be-Lo nor the majority

discusses yet three more.

The majority quibbles over whether several of the § 8(a)(1) viola-

tions that the Board found were violations at all. See slip op. at 16-17.

For example, the ALJ found four § 8(a)(1) violations when coman-

ager Perras met with employee Keyes, a known union supporter,

shortly before the election:

Perras showed Keyes some documents regarding the union

_________________________________________________________________

3 These 59 § 8(a)(1) violations were found to occur at 18 different

stores as follows: Store 28 (3); Store 37 (8); Store 62 (5); Store 73 (1);

Store 96 (3); Store 102 (4); Store 107 (1); Store 110 (1); Store 121 (2);

Store 122 (2); Store 126 (6); Store 144 (2); Store 145 (3); Store 148 (5);

Store 232 (2); Store 234 (7); Store 235 (1); Store 236 (3). The 14

§ 8(a)(3) violations were found to occur at eight different stores as fol-

lows: Store 37 (1); Store 102 (1); Store 110 (1); Store 126 (3); Store 145

(1); Store 148 (2); Store 232 (2); Store 235 (2).

38

campaign and after Keyes read the documents Perras asked

Keyes what she (Keyes) thought about the Union. Perras

went on to tell Keyes that if the Union got in and wages

were raised some stores might close and people lose their

jobs or hours would be cut. In other words Perras unlawfully

interrogated Keyes and threatened store closure, loss of jobs,

and reduced hours for employees if the Union was selected

all in violation of Section 8(a)(1) of the Act.

J.A. at 363. Although I believe these are among the weaker of the vio-

lations the Board upheld, the ALJ specifically credited Keyes over

Perras. When this episode is viewed in light of Be-Lo's vehement

anti-union campaign, I do not think that this court can say that sub-

stantial evidence in the whole record does not support these findings,

"even though we might have reached a different result had we heard

the evidence in the first instance." NLRB v. General Wood Preserving

Co., 905 F.2d 803, 810 (4th Cir.) (internal quotation marks and cita-

tion omitted), cert. denied, 498 U.S. 1016 (1990).

Similarly, the majority finds suspect an episode of potential sur-

veillance:

In January 1991 [employee] Cottrell was approached by

Union Organizer Karen Gompers and shortly thereafter the

comanager of store 102, David Rodriguez, told Cottrell he

had seen her with the union organizer. This statement by

Rodriquez to Cottrell creates the impression that Cottrell's

union activity was under surveillance and being monitored

by management in violation of Section 8(a)(1) of the Act.

Rodriguez never specifically denied this took place.

J.A. at 365. However, we have previously held that "[i]t is an unfair

labor practice for an employer to create in the minds of employees an

impression that he is closely observing union organizational activity."

J.P. Stevens & Co. v. NLRB, 638 F.2d 676, 683 (4th Cir. 1980); see

also NLRB v. Nueva Eng'g, Inc., 761 F.2d 961, 967 (4th Cir. 1985).

Again, it is difficult to see how this finding is not supported by sub-

stantial evidence in the record as a whole. In neither of these episodes

does the majority actually reverse the Board's finding of violations.

39

Essentially, then, there are 59 § 8(a)(1) and 9 § 8(a)(3) violations

that this court must accept as substantiated. On all but three of the

§ 8(a)(3) violations, Be-Lo did not even brief the court or make any

argument. Be-Lo belatedly urged us that it had not waived its right to

contest these violations, claiming that "the page limitations and the

overwhelming size of the appendix prevented a complete discussion

of all of the alleged violations of 8(a)(1)." Reply Br. of Pet'r at 13.

Be-Lo, however, did not request from us a page limit extension, nor

did it point out this waiver issue in its opening brief. Moreover, we

have never shied away from examining thoroughly the record evi-

dence before us, no matter how voluminous. See, e.g., Fieldcrest Can-

non, Inc. v. NLRB, 97 F.3d 65, 69 (4th Cir. 1996) (dealing with more

than 7800 transcript pages, more than twice that presented to us in the

instant case). Although we have not previously dealt with this precise

situation,4 it is nevertheless well-settled that where an employer offers

"no basis or argument for overturning the Board's findings and con-

clusions with regard to the §§ 8(a)(1) and (3) violations . . . the

employer has effectively waived the right to object to these findings

as erroneous." NLRB v. Horizon Air Servs., Inc., 761 F.2d 22, 26 (1st

Cir. 1985) (citing case law from four other circuits). Having examined

the material, I believe there is substantial evidence, when viewing the

record as a whole, to support the Board's findings as to these unbrie-

fed violations. The remaining violations, therefore, must be viewed

against this backdrop of a company hell-bent on preventing unioniza-

tion at nearly any cost.

III.

I turn now to the "pink slip" episode, reversed by the majority, slip

op. at 26-28. The Board, reversing the ALJ, found that Be-Lo had vio-

lated § 8(a)(1) by sending all bargaining unit employees a memoran-

dum letter and accompanying "pink slip" shortly before the election

that conveyed the message that stores would close and jobs would be

_________________________________________________________________

4 The case the Board relies on, NLRB v. Daniel Constr. Co., 731 F.2d

191, 198 (4th Cir. 1984), is inapposite, for there, unlike here, the

employer failed altogether to object initially to the Board in accordance

with 29 U.S.C. § 160(e) and the Board's rules pursuant to 29 C.F.R.

§ 102.46(b) (1983).

40

lost if the Union won the election. See J.A. at 341. The letter stated

in its entirety:

Dear Be-Lo Associate,

For several months you have been hearing sweet-

sounding promises from the out-of-town union organizers,

about higher wages, job security, grievance procedures,

seniority rights and other expensive benefits which are easy

to promise but hard to deliver.

At the same time they have also fed you militant anti-

BeLo distortions charging this company--your company--

with "half truths, lies and propaganda".

Half-truths? Lies? Propaganda? When you're trying to

figure out who is giving you the facts and who is promising

you the moon, you may want to take another look at what

the UNITED FOOD AND COMMERCIAL WORKERS

UNION got for their former dues payers in this area--A

PINK SLIP.

We will do everything we can to prevent this from hap-

pening to you, whether or not the union is voted in, but you

should consider what the union has DELIVERED in the past

before you believe what they PROMISE in the future.

(See the attachment)

J.A. at 3238 (emphases in original). Attached to the letter was a pink

piece of paper with the logos of grocery store chains Big Star Foods,

Safeway, and Colonial Stores at the top that read:

Dear Unionized Employees,

I regret to inform you that because we have lost our abil-

ity to compete in this extremely competitive market, we

shall be forced to close this store and put you out of work.

41

Sincerely,

Colonial Stores/Big Star

Safeway

J.A. at 3239.

The ALJ concluded that these materials, like other campaign mate-

rials distributed by Be-Lo, constituted free speech and legitimate pro-

paganda under § 8(c) of the Act, 29 U.S.C. § 158(c), because they did

"not rise to the level of a threat of reprisal if the employees select[ed]

the union as their collective bargaining representative." J.A. at 279,

360. The Board disagreed, reasoning that the employees knew it had

been Be-Lo that created and sent the "pink slip"; that the employees

could reasonably infer that they would be the "unionized employees"

who would suffer store closure and job loss if they voted for the

Union; and, most importantly, given the numerous other § 8(a)(1) vio-

lations in which Be-Lo did directly threaten employees with store clo-

sure and job loss, that these employees were, in fact, threatened that

they would get a "pink slip" if they voted for the Union. See J.A. at

341.

A threat of store closure if employees select union representation

is a § 8(a)(1) violation. See NLRB v. Nueva Eng'g, Inc., 761 F.2d 961,

966 (4th Cir. 1985). The Supreme Court has balanced the free speech

rights of employers, recognized in 29 U.S.C. § 158(c), with the eco-

nomic dependence of employees who are susceptible to credit readily

an employer's implications:

Thus, an employer is free to communicate to his employees

any of his general views about unionism or any of his spe-

cific views about a particular union, so long as the commu-

nications do not contain a "threat of reprisal or force or

promise of benefit." He may even make a prediction as to

the precise effects he believes unionization will have on his

company. In such a case, however, the prediction must be

carefully phrased on the basis of objective fact to convey an

employer's belief as to demonstrably probable conse-

quences beyond his control or to convey a management

decision already arrived at to close the plant in case of

unionization. If there is any implication that any employer

42

may or may not take action solely on his own initiative for

reasons unrelated to economic necessities and known only

to him, the statement is no longer a reasonable prediction

based on available facts but a threat of retaliation based on

misrepresentation and coercion.

NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969) (emphases

added) (citation omitted).

Be-Lo argues that these materials must be seen in the context of the

entire election campaign. In particular, the letter and "pink slip" were

in direct response to Union promises of job security and a claim that

any attempted refutation by Be-Lo would be a "half-truth, lie and pro-

paganda." Reply Br. of Pet'r at 15. It may well be that one could rea-

sonably argue that the language in the letter stating that "[w]e will do

everything we can to prevent this from happening to you, whether or

not the union is voted in" saves Be-Lo in this instance. However, a

reasonable mind could nevertheless conclude, see NLRB v. General

Wood Preserving Co., 905 F.2d 803, 810 (4th Cir.) (noting that

"[s]ubstantial evidence has been held to mean such relevant evidence

as a reasonable mind might accept as adequate to support a conclu-

sion" (internal quotation marks and citation omitted)), cert. denied,

498 U.S. 1016 (1990), as the Board did here, that Be-Lo failed to

accompany this communication with any objective substantiation of

the precise effects or demonstrably probable consequences of union-

ization. Furthermore, a reasonable mind could conclude that, given

the substantial number of times that Be-Lo did, in fact, directly

threaten store closure and job loss, this was nothing but a thinly-

veiled threat of retaliation. Since it is within the special expertise of

the Board to adjudge whether coercive language has been used, see

Gissel, 395 U.S. at 620; Nueva Eng'g, 761 F.2d at 966, the court

ought to have affirmed the Board's finding that the letter and "pink

slip" amount to a violation of § 8(a)(1).

The majority totally fails to link its reversal to the standard of

review or to recognize the Board's special expertise in this area. By

substituting its own opinion for that of the Board's expertise, the

majority engages in a de novo review that contravenes our well-

established precedent. See supra part I. This I cannot accept.

43

IV.

The Board found that Be-Lo had discriminatorily enforced its no-

solicitation policy in violation of § 8(a)(1) and therefore ordered Be-

Lo to reimburse the Union for certain legal expenses incurred in con-

nection with the state injunction cases. The majority reverses this

finding and order. See slip op. at 23-25. I cannot agree.

A.

As a general rule, an employer cannot be compelled to allow non-

employee union agents to solicit on its property. Lechmere, Inc. v.

NLRB, 502 U.S. 527, 533, 537 (1992); NLRB v. Babcock & Wilcox

Co., 351 U.S. 105, 112 (1956). However, there are two exceptions to

this rule, an "inaccessibility" exception and a "discrimination" excep-

tion, of which only the latter is implicated here. An employer may

prohibit nonemployee distribution of union literature if it "does not

discriminate against the union by allowing other distribution."

Babcock & Wilcox, 351 U.S. at 112; see also Sears, Roebuck & Co.

v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 205

(1978). Lechmere is not to the contrary, being principally concerned

with reaffirming the general rule and rejecting the Board's attempt to

recast it as a multifactor balancing test even in cases of nonemployee

activities. See Lechmere, 502 U.S. at 535-38.

The majority suggests, but does not hold, that nonemployee picket-

ers protesting unfair labor practices would fail the Babcock & Wilcox

discrimination exception following Lechmere. The majority relies on

Cleveland Real Estate Partners v. NLRB, 95 F.3d 457 (6th Cir. 1996),

see slip op. at 24, which in turn criticized the Board's decision in this

case, Be-Lo Stores, 318 N.L.R.B. 1 (1995). Although the Cleveland

court at least emphasized that its holding only applied to "nonem-

ployee" handbillers, see Cleveland, 95 F.3d at 464, both that court and

the majority here totally ignore the fact that the ALJ, and the Board

by adoption, specifically noted that the picketers in this case included

"employee[s] or former employees some of whom had been dis-

charged in violation of Section 8(a)(3) of the Act." J.A. at 374. Pursu-

ant to 29 U.S.C. § 152(3), an unlawfully discharged worker retains

her status as an "employee." Thus the Board in this case found that

Be-Lo had violated the Act not just by refusing access to nonem-

44

ployee Union organizers but by also denying access to employee

picketers. There is little doubt that Supreme Court precedent recog-

nizes that picketing by employees to protest unfair labor practices is

a § 7 right. See Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1177

(D.C. Cir. 1993), cert. denied, 511 U.S. 1003 (1994). Indeed, it is a

right that can trump an employer's private property rights. See

Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803-04 (1945); see

also Babcock & Wilcox, 351 U.S. at 109-11.

Here, the Board, in reversing the ALJ, found that Be-Lo had other-

wise ignored its no-solicitation policy with respect to non-Union-

related solicitors and thus violated § 8(a)(1) by denying the Union's

picketers, including employees, access to Be-Lo's property. This case

is further complicated by the fact that employee picketers were never

asked to leave Be-Lo's property unless non-employee Union organiz-

ers were present as well. Nevertheless, the Board made it clear that

employees could not lose their § 7 rights merely by associating with

non-employees in these circumstances. See J.A. at 348 n.25. More-

over, at least one court has upheld a § 8(a)(1) violation in similar cir-

cumstances where six of twelve picketers were employees or

unlawfully discharged employees. See Davis, 2 F.3d at 1177-78.

The majority not only ignores the presence of employee picketers

but mischaracterizes the evidence when it asserts that any solicitation

that occurred did so "without the knowledge or approval of Be-Lo's

owners, executives, or store-level management." Slip op. at 25. Not

only did the comanager of Store 102 know of the cookbook salesman,

who solicited inside the store, but he spoke with him and affirma-

tively accepted a cookbook sample so that other employees could

look at it and determine if they wanted to purchase one. See J.A. at

551. The majority also mischaracterizes the "few solicitations" as

occurring over a period of a year and a half, see slip op. at 25, when

the Board expressly refused to consider Union-proffered evidence of

additional incidents outside the few months of the spring and summer

of 1991, believing it was unnecessary to consider that additional evi-

dence to reach its conclusion, see J.A. at 348 n.29.

The Board was disturbed by the disparate enforcement of the no-

solicitation rule, allowing sundry solicitations precisely at the same

time that Be-Lo "consistently and rigorously enforced its no-

45

solicitation rule on a corporatewide basis" against the picketers and

handbillers. J.A. at 349. The Board ultimately concluded that Be-Lo

"took a laissez-faire approach to the religious and political groups,

while ejecting the union protesters through lawsuits and threats of

arrest," and thereby "follow[ed] a policy of `discriminat[ing] against

the [U]nion' within the meaning of" Babcock & Wilcox. J.A. at 349

(quoting Babcock & Wilcox, 351 U.S. at 112). As I must reiterate

again, although "we might have reached a different result had we

heard the evidence in the first instance," NLRB v. General Wood Pre-

serving Co., 905 F.2d 803, 810 (4th Cir.) (internal quotation marks

and citation omitted), cert. denied, 498 U.S. 1016 (1990), substantial

evidence does indeed support the Board's finding that "antiunion dis-

criminatory motives" animated Be-Lo in "ejecting union agents while

tolerating intermittent, but not infrequent, solicitations on its property

by purveyors of incense and religious literature." J.A. at 349. See also

Riesbeck Food Markets, Inc. v. NLRB, 91 F.3d 132, 1996 WL

405224, at **4 (4th Cir. July 19, 1996) (unpublished disposition) (cit-

ing favorably the Board's opinion in the instant case, 318 N.L.R.B.

No. 1 (1995), that the prohibition on union distribution was discrimi-

natory). I would sustain the Board's conclusion that Be-Lo violated

§ 8(a)(1) by disparately enforcing its no-solicitation rule.

B.

Because the majority reverses the Board's conclusion on the dispa-

rate enforcement of its no-solicitation rule, it also reverses the

Board's order awarding the Union certain attorneys' fees and costs in

defending the various state court injunction actions. See slip op. at 25

n.9. Because I would find a violation, I briefly discuss the Board's

decision to apply Loehmann's Plaza [I], 305 N.L.R.B. 663, 1991 WL

251696 (1991), decision supplemented by Loehmann's Plaza [II], 316

N.L.R.B. 109 (1995), review denied sub nom. United Food and Com-

mercial Workers, Local No. 880 v. NLRB, 74 F.3d 292 (D.C. Cir.),

cert. denied sub nom. International Bhd. of Teamsters, Local No. 243

v. NLRB, 117 S. Ct. 52 (1996), retroactively to require Be-Lo to reim-

burse the Union for legal expenses from the time the General Counsel

issued its complaint in September 1991 until Be-Lo moved to stay the

injunctions in December 1991.

Great deference is normally given to the Board's judgment on

retroactivity: unless manifest injustice can be shown, the decision

46

should be upheld. Oakwood Hosp. v. NLRB, 983 F.2d 698, 703 (6th

Cir. 1993); but cf. ARA Servs., Inc. v. NLRB, 71 F.3d 129, 135 (4th

Cir. 1995) (determining that denial of enforcement, rather than

remand, is appropriate where retroactive application of a new jurisdic-

tional rule would work a "manifest injustice"). The Board determined

there was no manifest injustice in this case, relying on its reasoning

in Loehmann's Plaza I. See J.A. at 350 n.30. In Loehmann's Plaza I,

the Board held, in a part not reversed by Loehmann's Plaza II, that

"once the General Counsel decides to initiate a formal adjudicatory

proceeding, the Board's jurisdiction is invoked and it becomes the

exclusive forum for an adjudication of a[n employer's] property

rights." Loehmann's Plaza I, 1991 WL 251696 at *12. Therefore,

whenever there is an outstanding injunction when the General Coun-

sel issues a complaint, the employer must take affirmative action

within seven days of the issuance of the complaint to have the injunc-

tion withdrawn. Id. at *13. The Board went on to apply that holding

against the parties before it, declaring:

[W]e cannot conclude that, at the time the conduct at issue

in this case occurred, union charging parties had settled

expectations that state court lawsuits to enjoin protected

trespassory activities would be found to be unfair labor

practices from their inception and would call for make-

whole remedies extending throughout the pendency of the

suit. Neither can we conclude that employer/property own-

ers have settled expectations that they could prosecute such

lawsuits with impunity. There is, therefore, nothing mani-

festly unjust in applying to the parties [these] rulings . . . .

Id.

In the instant case, the General Counsel issued the first complaint

on September 12, 1991, Loehmann's Plaza itself was decided on

November 21, the Board's Regional Director notified Be-Lo of the

Loehmann's Plaza decision on December 3, and Be-Lo moved to stay

the injunction on December 9. Be-Lo is thus in no different a position

than the parties in Loehmann's Plaza to whom the rule was applied

retroactively. Other than state in a conclusory fashion that retroactive

application would be manifestly unjust, see Br. of Pet'r at 33, Be-Lo

has made no affirmative showing that it would be unjustly harmed by

47

the Board's order. I believe we should therefore enforce that part of

the order. Although perhaps a little unfair given these circumstances,

it is not manifestly unjust. Be-Lo has made at best only a cursory,

half-hearted effort to show manifest injustice and, therefore, has not

really carried its burden to convince me otherwise.

V.

The majority, either expressly or implicitly, upholds the Board's

determination of nine § 8(a)(3) violations. The majority, however,

rejects the Board's conclusion that five individuals were either dis-

charged or constructively discharged unlawfully. For the following

reasons, I must disagree in each case.

There is no question that Erwin Hatchett was initially laid off for

a "supportable cause," a decline in business due to the Persian Gulf

War. It was Be-Lo's failure to recall Hatchett when openings later

arose, however, that the Board determined to be a § 8(a)(3) violation.

After his layoff, Hatchett became an active picketer, a circumstance

of which Be-Lo was aware. Be-Lo claimed, and the majority accepts,

that Hatchett was not called back because there were no openings for

meat cutters in the four stores in Hatchett's immediate area. See slip

op. at 29. The Board expressly rejected Be-Lo's claim, finding instead

that Be-Lo had implicitly conceded that there were job openings at

other stores to which Hatchett could have been called back. The

Board's conclusion is logically and legally sound: "[Be-Lo] lawfully

cannot refuse to recall a laid-off employee because of his support for

the Union and then seek to justify the failure to recall by limiting the

employee's right to recall to stores at which there are no openings."

J.A. at 346. The majority relies on dicta in Appletree Chevrolet I to

the effect that the discharge of even a union activist requires a "plus"

if the employer has articulated a "supportable cause" for the dis-

charge. See NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988, 994 n.5

(4th Cir. 1979). The majority conveniently ignores, however, the lan-

guage in the text of the opinion which emphatically recognizes that

where employees are particularly active in the union, an inference of

improper motivation is not only warranted but may serve as just such

a "plus factor." See id. at 993-94 (remarking that there are "an infinite

number of precedents" that sustain a discriminatory discharge in such

circumstances). The Board determined that Be-Lo's reason for not

48

recalling Hatchett, no openings, was pretextual and that Hatchett was,

in fact, not recalled because of his union activities. Substantial evi-

dence supports the Board's conclusion that Hatchett was construc-

tively discharged in violation of § 8(a)(3).

The majority shortchanges the evidence the Board relied upon in

finding Shirley Terry's discharge unlawful. Terry, a five-year

employee, was very prounion: her picture was distributed on a union

flyer and she joined the Union's picket lines in her off-hours while

still employed. Be-Lo was well aware of her activity. The Board

determined that Be-Lo harassed her by subjecting her to heightened

scrutiny from the time her picture appeared in the flyer in January

1991, waiting for a misstep. The Board rejected Be-Lo's proffered

justification for her May 6 discharge, that she gave away food to a fel-

low co-worker, as pretextual. In fact, Terry did give employee Gard-

ner some food scraps for his dog that she otherwise would have

thrown away and marked them as "no charge." The Board found that

Be-Lo escalated its investigation of Terry, interviewing her in a

closed car and coaxing her into admitting that she had discounted

food in the past. The ALJ and Board, however, credited her testimony

that she had discounted food in the past only with her manager's

approval, an exoneration that Be-Lo refused to countenance. The

Board concluded that, on the basis of these circumstances and Be-

Lo's repeated harassment of Terry, Be-Lo "was out to get Terry

because of her support for the Union and seized upon this opportunity

to terminate her." Courts have found similar discharges pretextual,

see, e.g., McLane/Western, Inc. v. NLRB, 827 F.2d 1423, 1425 (10th

Cir. 1987) (upholding a § 8(a)(3) violation where a pro-union grocery

warehouse employee was discharged for eating a broken cracker from

an unsalvable case in alleged violation of the company's anti-pilfering

rule), and have looked askance at discriminatorily-motivated investi-

gations that would not have occurred but for the employer's desire to

get rid of a pro-union employee, see, e.g., Signal Oil and Gas Co. v.

NLRB, 390 F.2d 338, 340-42 (9th Cir. 1968) (upholding a § 8(a)(3)

violation where an employer discharged an employee who made a

pro-strike remark, allegedly for "poor attitude," but only after delving

into the employee's record after being prompted by the remark). See

also American Thread Co. v. NLRB, 631 F.2d 316, 321-23 (4th Cir.

1980) (concluding that employee would not have been discharged,

although he may have been subjected to lesser punishment, but for his

49

union activity). Similarly, substantial evidence supports the Board's

finding of a § 8(a)(3) violation in this case.

Pamela Jackson also picketed the company on her off-duty hours,

an activity of which Be-Lo was well aware. Jackson took a sick day,

apparently to visit her brother who had recently been shot, when the

store manager refused to give her the day off. The district manager

subsequently refused to let her return to work without a doctor's

excuse. The Board found, and Be-Lo even conceded before it, that

Be-Lo's established policy was to treat such an absence as unexcused

and issue a written warning for the infraction, not to discharge the

employee. The ALJ noted that Jackson had specifically told her dis-

trict manager that she had not seen a doctor. See J.A. at 373. The

Board therefore concluded that when Be-Lo set the production of a

doctor's note as the condition for her return, a condition it knew she

could not meet, Be-Lo violated its own admitted sickness excuse pol-

icy in retaliation for her protected union activities. See J.A. at 347.

Seen in the context of Be-Lo's hostility toward picketing and a rash

of other discharges of known union activists, substantial evidence

supports the Board's conclusion that Jackson was constructively dis-

charged in violation of § 8(a)(3).

Gwen Andrews, a known union supporter, was constructively dis-

charged following a minor dispute with her supervisor. The majority

mischaracterizes the evidence when it asserts that Be-Lo presented

"unrebutted evidence" that Andrews was "expelled" for refusing to

follow her "pro-union" supervisor's instructions. See slip op. at 29-30.

The Board expressly determined that there was no evidence that

Andrew's supervisor was pro-union at the time of her constructive

discharge. Instead, the evidence suggests that Andrew's supervisor

had become firmly allied with management, as his presence during an

unlawful interrogation of Andrews reflects. See J.A. at 346. More-

over, it is difficult to see how the evidence against Andrews stood

"unrebutted" when only Andrews testified, not her supervisor.

Andrews testified that while she was wrapping cornish game hens,

her supervisor said "I need you to price and weigh chicken legs." She

replied "okay" and attempted to finish wrapping the hens. Her super-

visor repeated his request twice more, and when Andrews said she

had heard him the first two times, he ran to Andrews, got in her face,

and asked her "what the hell" her problem was. He then told her to

50

go home and not to come back. See J.A. at 346, 371. The ALJ specifi-

cally credited Andrews' testimony over that of two company officials.

The Board determined that the timing of this minor dispute on March

5, 1991, following a February incident in which Andrews was unlaw-

fully interrogated and threatened, and just two weeks before the elec-

tion, turned out to be a convenient way for Be-Lo to rid itself of a pro-

union employee. See J.A. at 346-47. Substantial evidence supports the

conclusion that Andrews was unlawfully constructively discharged

when a Be-Lo supervisor told her not to come back.

The majority also mischaracterizes the evidence when it claims

Michael Salazar was fired because of the "unrebutted" evidence of his

"pervasive absenteeism." See slip op. at 30. Even Be-Lo does not

claim Salazar was pervasively absent, only that Salazar "was late for

work many times and was late for work by more than an hour on sev-

eral occasions." Br. of Pet'r at 36. The Board, adopting the ALJ's

findings, noted that while Salazar's "attendance record was less than

outstanding," Be-Lo's reason for his discharge under the circum-

stances was pretextual pursuant to a Wright Line analysis. Those cir-

cumstances were that Salazar was mugged and stabbed on the way

home from work on March 8, 1991. Nevertheless, Salazar attempted

to return to work on March 9, but the store manager released him to

go home when he suffered dizziness. Salazar, who possessed no med-

ical insurance, was too sick to return to work on March 10. The Board

found that Salazar, who did not own a phone, went to a store near his

home and attempted to call his manager to let him know he could not

come in that day, but the phone was out of order. When Salazar did

return to work on March 11, his manager fired him for his absence

the day before, despite knowing of the stabbing and sending him

home on March 9. The Board concluded that Be-Lo, which was "un-

alterably opposed" to unionization, "seized on this opportunity--just

10 days before the election--to fire this prounion employee." J.A. at

362. Indeed, the Board had found that this manager had previously

unlawfully interrogated Salazar and that Salazar was known to be a

union supporter who had solicited other employees to sign authoriza-

tion cards in the presence of Be-Lo officials. Substantial evidence on

the record as a whole supports the Board's conclusion that Salazar

would not have been discharged for his March 10 absence but for his

prounion position.

51

VI.

A.

In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Supreme

Court upheld the authority of the Board to issue a bargaining order

in appropriate circumstances. See Gissel, 395 U.S. at 610-16. The

Court there recognized a tripartite categorization of unfair labor prac-

tices. The first category comprises those instances where the unfair

labor practices are "outrageous" and "pervasive" such that a bargain-

ing order is the only effective remedy. There is no need to inquire into

majority status in such cases. See id. at 613-14. The second category

comprises "less extraordinary cases marked by less pervasive prac-

tices which nonetheless still have a tendency to undermine majority

strength and impede the election process." Id. at 614. The third cate-

gory, which will not sustain a bargaining order, comprises those

minor and less extensive unfair labor practices that have a minimal

impact on electioneering. See id. at 615.

For the second category of cases, the Court discussed a number of

factors the Board should consider in determining the propriety of a

bargaining order. See id. at 614-15. We have previously stated those

criteria as depending on the following Board findings:

(1) that the Union once had majority status, (2) that such sta-

tus 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 ensuring a

fair election (or a fair rerun) by the use of traditional reme-

dies, though present, is slight" and (4) "that employee senti-

ment once expressed through cards would, on balance, be

better protected by a bargaining order."

NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988, 996 (4th Cir. 1979)

(Appletree Chevrolet I) (quoting Gissel, 395 U.S. at 614-15); see also

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

Appletree Chevrolet I we also required the Board, in this second cate-

gory, not just to find the existence of unfair labor practices but "to

make specific findings as to the immediate and residual impact of the

unfair labor practices on the election process"; in other words, the

52

Board "must make a detailed analysis assessing the possibility of

holding a fair election in terms of any continuing effect of miscon-

duct, and the potential effectiveness of ordinary remedies." Appletree

Chevrolet I, 608 F.2d at 997 (internal quotation marks and citations

omitted). The Gissel Court, however, also noted that the Board

"draws on a fund of knowledge and expertise all its own" in fashion-

ing remedies and thus that reviewing courts must give special respect

to its choice of remedy. Gissel, 395 U.S. at 612 n.32, 616. We have

therefore noted that we review the selection of remedy for abuse of

discretion. See NLRB v. Williams Enters., 50 F.3d 1280, 1289 (4th

Cir. 1995). There is thus a tension between Appletree Chevrolet I's

requirements to sustain a bargaining order and the Board's broad dis-

cretion in initially choosing it that we have yet to resolve and that the

majority ignores altogether.

The threat of a store closure is a "hallmark" violation that, in itself

--absent significant mitigating circumstances evidencing that the vio-

lative conduct is not as serious as it might seem--can support a Gissel

order. See So-Lo Foods, 985 F.2d at 126-27 & 127 n.5. Hallmark vio-

lations, which also include threats of job loss and discharge of union

adherents in violation of § 8(a)(3), fall within Gissel's first category.

NLRB v. General Wood Preserving Co., 905 F.2d 803, 822 (4th Cir.)

(citing NLRB v. Jamaica Towing, Inc., 632 F.2d 208, 212-13 (2d Cir.

1980)), cert. denied, 498 U.S. 1016 (1990). Therefore, they do not

require a showing of majority support for the union.

The ALJ declined to determine whether the bargaining order he

issued fell into the first or second of Gissel's categories, for it was

"clear" that "the Union enjoyed majority support, the unfair labor

practices committed by Be-Lo were `hallmark' violations, the effect

of these unfair labor practices rendered a fair rerun election impossi-

ble, and the interests of justice cry out for the issuance of a bargaining

order." J.A. at 327, 380 (emphases added). The Board agreed that the

facts of this case supported a bargaining order even under the more

stringent requirements of Gissel's second category and thus also

refused to classify the bargaining order it issued as "Category I" or

"Category II." See J.A. at 350 & n.32.

Although the Board expressly refused to classify its bargaining

order, the majority "deems" it to be a Category II order, and, on that

53

basis, finding the Board's analysis erroneous or lacking, refuses to

sustain it. See slip op. at 6. The majority never considers whether the

order is sustainable as a Category I bargaining order. I believe the

majority's analysis is fundamentally flawed in several respects. First,

there is no warrant for subjecting the Board's order in this case only

to the harsher requirements of a Category II analysis. Second, the

facts of this case plainly support the issuance of a Category I bargain-

ing order. Finally, even under the more stringent burden necessary to

sustain a Category II order, the Board, as evidenced by its own "de-

tailed analysis" of the matter, did not abuse its discretion.

B.

The majority cites Appletree Chevrolet I as settled law that where

the Board declines to specify whether its bargaining order falls into

the first or second of Gissel's categories, yet conducts only a Cate-

gory II analysis, then we "deem the order to have been a Gissel Cate-

gory II order." Slip op. at 6 (citing Appletree Chevrolet I, 608 F.2d

at 996 n.8). In that case, however, we independently concluded that

"this is the proper categorization for this case." Appletree Chevrolet

I, 608 F.2d at 996 n.8. That such a categorization was warranted was

evident from the facts that that case involved only four § 8(a)(3) vio-

lations arising from the discharge of four employees and three addi-

tional § 8(a)(1) violations and that we noted that the Board apparently

had misgivings about the propriety of a bargaining order in any event.

See id. at 991, 1001. Moreover, although somewhat unclear, it

appears we rejected all the violations except one § 8(a)(1) violation

of unlawful interrogation. See id. at 996, 998-99.

In the instant case, even the majority sustains nine § 8(a)(3) viola-

tions for unlawful discharge, six expressly and three implicitly, as

well as dozens of § 8(a)(1) violations. It is thus not self-evident that

this case is necessarily a Category II case. Moreover, judicial bodies

routinely refuse to expend resources categorizing the nature of claims

or remedies when the evidence or analysis is deemed to satisfy the

strictest requirements or greatest burden. Indeed, courts do not even

classify Gissel bargaining orders as Category I or II when a case

clearly satisfies the greater burden of Category II. See, e.g., Davis

Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1171 (D.C. Cir. 1993), cert.

denied, 511 U.S. 1003 (1994); NLRB v. Horizon Air Servs., Inc., 761

54

F.2d 22, 29 & n.5 (1st Cir. 1985). In fact, the Board specifically relied

on Davis Supermarkets when it decided that it was unnecessary to

specify whether the instant case fell into Category I or II. See J.A. at

350 n.32.

The majority therefore erred when it "deemed" the bargaining order

in this case to be a Category II order and "scrutinized" it only on those

terms.

C.

The facts of this case can plainly sustain a Gissel Category I bar-

gaining order. I would affirm the Board's finding of at least 77 viola-

tions. The "pink slip" episode and the various employee discharges

are all hallmark violations, as are at least 50 other of the § 8(a)(1) vio-

lations, as the Board found. See J.A. at 352. These numerous egre-

gious violations evince that there are no significant circumstances

mitigating the seriousness of Be-Lo's activities here and are more

than sufficient to support the Board's issuance of a bargaining order

under the first category. Moreover, there is certainly substantial evi-

dence in the record to support the conclusion that the extent and

nature of Be-Lo's unfair labor practices show them to be "outrageous"

and "pervasive" within the meaning of Gissel and thus "crying out"

for a bargaining order.

Even under the majority's approach, there remain 59 § 8(a)(1) vio-

lations, the vast majority hallmark violations, and 9 hallmark § 8(a)(3)

discharges. Indeed, many of these § 8(a)(1) violations involve threats

of store closure, which, standing alone, are sufficient to support a Cat-

egory I bargaining order. See So-Lo Foods, 985 F.2d at 127 (citing

Gissel, 395 U.S. at 615).

To support a Gissel Category I bargaining order, the Board need

not undertake a detailed analysis but "instead must only make `mini-

mal findings' of the lasting effect of unfair labor practices." Power

Inc. v. NLRB, 40 F.3d 409, 422 (D.C. Cir. 1994). In Power, the Dis-

trict of Columbia Circuit upheld a Gissel Category I bargaining order

where the employer permanently laid off thirteen employees and

repeatedly threatened plant closure in the event of unionization. The

55

court held that the Board satisfied the minimal fact-finding require-

ment to support a Category I order when it found

Power's repeated, numerous, and persistent threats of plant

closure, which "reached, directly, nearly every employee in

the bargaining unit," "among the most serious, flagrant and

long-lasting forms of interference with employee rights,"

acting "to destroy employee support for a union and the pos-

sibility of a fair election." The Board also concluded that it

is "difficult to imagine any act of management better calcu-

lated to chill union support" than the layoff of thirteen union

supporters just days before the election.

Id. at 423 (citations omitted).

In the instant case, because the Board thought its analysis was suf-

ficient to support the more demanding standards of a Category II

order, there should really be little question that it satisfied the minimal

findings necessary for a Category I order. Without detailing that basis

here,5 it is sufficient to note that the Board specifically determined

that of the "serious" and "extensive" unfair labor practices, more than

30 hallmark violations were committed in the weeks just prior to the

election; that Be-Lo discharged six union adherents in March 1991 on

the eve of the election; that Be-Lo's "misconduct includes the type of

severe and pervasive coercion that has lingering effects and is not

readily dispelled by the passage of time"; that "management from top

to bottom" was engaged in the antiunion campaign and committed the

serious hallmark violations; that the pervasive effect of Be-Lo's mis-

conduct precluded the "possibility of a fair rerun election"; that after

the election Be-Lo took no action "to eradicate the effects of its

unlawful threats of closure and discharge" and, in fact, continued its

"extensive antiunion campaign"; and that "the cloud created by these

violations is likely to linger and cannot be dispersed by a traditional

cease-and-desist order." J.A. at 352-54. These substantial findings are

more than adequate to support a Category I bargaining order.

_________________________________________________________________

5 I will treat that basis in more detail below when discussing the fact

that the Board's analysis is sufficiently detailed to support even a Cate-

gory II order.

56

D.

Even under the stricter requirements necessary to support a Cate-

gory II order, the bargaining order in the instant case was fully war-

ranted.

1.

Substantial evidence supports the Board's finding that the Union

enjoyed majority support on March 20, 1991, for the Union offered

into evidence 403 proper authorization cards out of 756 eligible

employees as of that date. See J.A. at 351. The parties argue vigor-

ously over whether the Board erred in relying on the ALJ's finding

after the ALJ refused Be-Lo's proffer of certain rebuttal evidence. Be-

Lo asserts that the Excelsior list it generated was improperly relied

upon as an accurate roll of final eligible voters,6 and the majority

inexplicably and erroneously accepts Be-Lo's sleight-of-hand argu-

ments. See slip op. at 10-11. The Excelsior list in this case contained

the names of 765 employees who were on the payroll as of January

26, 1991, as amended by the parties at a preelection conference on

March 19, a number which the ALJ reduced by nine. Be-Lo contends

that once these numbers are adjusted to reflect employees who were

terminated before March 20 and new hires who were added after Jan-

uary 26, then only 362 of 769 eligible employees had signed authori-

zation cards, less than a majority.

Be-Lo made this same argument to the Board, which properly

rejected it. The ALJ and the Board both found that the General Coun-

sel had reasonably relied in good faith on the Excelsior list to estab-

lish a Gissel majority at trial. On the first day of the hearing before

the ALJ, February 18, 1992, Be-Lo moved to quash the General

Counsel's subpoena duces tecum that requested "[p]ayroll records

reflecting all bargaining unit employees employed by Be-Lo for each

pay period, from February 1, 1991 through April 1, 1991." See J.A.

at 147 (subpoena duces tecum, item 27). The General Counsel

explained that what it was seeking with its request "is a listing of all

_________________________________________________________________

6 An Excelsior list contains the names and addresses of employees and

is furnished by the employer to the union for use in an election. See

NLRB v. Wyman-Gordon Co., 394 U.S. 759, 761-62 (1969).

57

bargaining unit employees for each of those payroll periods. In other

words, a listing like they provided to the Board for the [E]xcelsior list

for the election, that's what we are talking about." J.A. at 438. Be-Lo

in response stated:

It seems to me that the Gissel[ ] remedy can only be as

of the date that the union claims it has majority status, what-

ever date that was, and it was certainly before the election.

[. . .]

Now, the election was March 21, and there were certainly

some deletions from the [E]xcelsior list for those employees

who were not on the payroll as of the date of the election.

Those deletions were made and the Board has that list as of

March 21. They have it.

J.A. at 439. Based on these assurances that it had the proper final

voter eligibility list, the General Counsel relied on the amended

Excelsior list to establish the Gissel majority.7 Only after the General

Counsel rested its case some five months into the hearing did Be-Lo

first assert on July 8, 1992, that the Excelsior list was inaccurate and

could not be relied upon to show majority support. See J.A. at 1113-

43, 1160-80.

The majority concocts a fanciful explanation about the existence of

two lists. See slip op. at 9-10. However, the majority's imagination

does serious violence to the ordinary meanings of words and gram-

matical structure. Be-Lo nowhere stated in the colloquy before the

ALJ that there were two lists. Be-Lo's counsel talked only of "dele-

tions from the [E]xcelsior list" in the first sentence of the second

paragraph quoted above. The next sentence plainly and unambigu-

ously states that "[t]hose deletions were made and the Board has that

list." "That list" can only refer to the amended Excelsior list, the

adjective "that" modifying "list" and designating the list mentioned in

the previous sentence. The final sentence, "They have it." conclu-

_________________________________________________________________

7 The Board also noted that the Union as well relied on this Excelsior

list, for it only called as witnesses card signers who appeared on it. See

J.A. at 351 n.34.

58

sively establishes that Be-Lo was talking only about one thing, the

"it" being the amended Excelsior list mentioned in the first sentence

and referenced in the second. In any event, it is plain that the majority

continuously wants to make itself into the fact-finder in this case. If

there now appears to be confusion as to what Be-Lo meant, the ALJ

evidently determined that it was clear enough at the time and that Be-

Lo was assuring both the General Counsel and the ALJ himself that

the General Counsel already possessed the amended Excelsior list.

The Board also found, despite Be-Lo's claims to the contrary, that

Be-Lo had not fully complied with the subpoena. The majority clearly

mischaracterizes this matter. See slip op. at 8 n.1, 11. The General

Counsel had requested payroll records; Be-Lo provided work sched-

ules and time sheets. The Board judged this proffered evidence to be

"seriously defective" because

employees could be out of work during the relevant time

period for various reasons, such as maternity leave, and

therefore not listed on the work schedules and timesheets

even though they would still be in [Be-Lo's] employ and eli-

gible to vote. In addition, we observe that [Be-Lo] did not

proffer work schedules and timesheets for all the stores in

the bargaining unit during the relevant time period.

J.A. at 351. I have examined this material and believe substantial evi-

dence supports the Board's conclusion that Be-Lo's "belatedly prof-

fered evidence is seriously flawed, and that the judge did not err in

finding the `best evidence' of the number of employees in the bar-

gaining unit as of March 20" to be the Excelsior list. J.A. at 351.

In support of this conclusion, the Board cited Bannon Mills, Inc.,

146 N.L.R.B. 611 (1964). Be-Lo argues that Bannon Mills stands

only for the proposition that where the employer fails to respond to

the General Counsel's subpoena can the ALJ properly exclude the

employer's evidence based on that unprovided material. See Br. of

Pet'r at 10, 12; Reply Br. of Pet'r at 8-9. In Bannon Mills, the

employer refused to comply with the General Counsel's subpoena

duces tecum requesting payroll records. Consequently, the General

Counsel produced secondary evidence to prove majority support for

the union. When the employer objected that this was not the "best evi-

59

dence," but still refused to produce that alleged "best evidence," the

objection was overruled. After the General Counsel rested, the

employer attempted to introduce those subpoenaed, but unproduced,

payroll records. The ALJ ruled the records inadmissible, Bannon

Mills, 146 N.L.R.B. at 633-34, and the Board affirmed, id. at 613 n.4.

Be-Lo asserts that because it did comply with the subpoena, as the

ALJ found, Bannon Mills is inapplicable. The Board recognized that

the instant case is distinguishable from Bannon Mills because the ALJ

had found that Be-Lo did comply. Nevertheless, the Board stated:

[W]e find that the principle that Bannon Mills stands for, the

protection of the integrity of the hearing process, is properly

invoked here where the General Counsel relied in good faith

on [Be-Lo's] affirmation on the first day of the hearing that

the final voter eligibility list was, in effect, the best evidence

of the number of employees in the bargaining unit prior to

the election for the purpose of establishing a Gissel major-

ity.

J.A. at 352 n.35.; cf. NLRB v. American Art Indus., Inc., 415 F.2d

1223, 1229-30 (5th Cir. 1969) (upholding the Bannon Mills principle

and recognizing that "to maintain the integrity of the hearing process"

the ALJ properly refused to admit secondary evidence proffered by

the employer which it refused to produce in the face of a valid

subpoena duces tecum), cert. denied, 397 U.S. 990 (1970), and cert.

denied, 401 U.S. 912 (1971). Be-Lo wants to make the ALJ's finding

of compliance final. However, as discussed above, the Board found

that Be-Lo's proffered evidence was "seriously defective" and incom-

plete and thus that Be-Lo had not fully complied with the subpoena.

While Be-Lo did not attempt to introduce evidence that it did not pro-

duce, work schedules and time sheets are not payroll records. Be-Lo

did not comply with the subpoena and the General Counsel relied on

Be-Lo's assurances that the amended Excelsior list contained only

those names of employees on the payroll as of the election date.

I must also point out that while Be-Lo only wants to use its num-

bers of employee terminations and new hires to show that the Union

did not have a majority of authorization cards, the ALJ specifically

noted that "during the union organizing campaign the Union secured

60

many more authorization cards than 403." J.A. at 312, 376. The

Union had only placed in evidence cards from those whose names

appeared on the amended Excelsior list. This crucial fact is totally

ignored by the majority. The Union was therefore every bit as bound

and hindered by the reliance on the amended Excelsior list as was Be-

Lo. Be-Lo, in effect, wants to relitigate this matter, but all litigation

must come to an end at some point. The ALJ determined that the

amended Excelsior list was the "critical document," id. at 313 n.2,

376 n.2, and the Board agreed. I can see absolutely no basis for this

court to determine that the Board or the ALJ abused their discretion

in rejecting Be-Lo's other belatedly proffered evidence.

2.

Be-Lo also contends that, even on the basis of the amended

Excelsior list, the Union lacked majority support. These contentions

are meritless. The Board properly refused to pass on Be-Lo's claims

that certain cards should have been excluded because they were

obtained by misrepresentation or by supervisors. Even excluding

those cards, the Union still enjoyed the support of an uncoerced

majority.8 See J.A. at 352.

_________________________________________________________________

8 Although Be-Lo claims before us, and the majority accepts, see slip

op. at 15, that 15 cards were improperly obtained by supervisors, before

the Board Be-Lo excepted to only 14 supervisor-obtained cards. See J.A.

at 352 n.36.

More significantly, the majority highlights the testimony of Kim How-

ell, a union witness, for the purpose of showing that certain cards were

obtained through misrepresentation. See slip op. at 12-14. Notably absent

from the majority's discussion is the number of cards allegedly affected.

The Board treated that number as only seven, see J.A. at 352 n.36, and

therefore counted in that total not only Howell's own card, but also the

"5 to 6 other employees" to whom she allegedly misrepresented their

purpose. See Br. of Resp't at 41 n.10.

Most importantly of all, however, it is apparent that the ALJ never

counted any of the cards Howell obtained. The ALJ was careful to list

all 37 organizers who put the cards he counted into evidence and the

number of cards put into evidence by each. See J.A. at 377. Only from

this list of 535 cards placed in evidence (the ALJ apparently made an

arithmetical mistake by tallying only 534) did the ALJ consider whether

61

Be-Lo also asserts that 43 additional cards should be excluded

because the signers of those cards testified that they were told the card

would only be used to gain an election. As Gissel makes clear,

employees should be bound by the clear language of what

they sign unless that language is deliberately and clearly

canceled by a union adherent with words calculated to direct

the signer to disregard and forget the language above his

signature. There is nothing inconsistent in handing an

employee a card that says the signer authorizes the union to

represent him and then telling him that the card will proba-

bly be used first to get an election.

Gissel, 395 U.S. at 606. In this case, it cannot be gainsaid that the

authorization card language was self-evidently clear, stating:

I hereby authorize United Food and Commercial Workers

International Union, AFL-CIO, or its chartered Local Union

to represent me for purposes of collective bargaining,

respecting rates of pay, wages, hours of employment, or

other conditions of employment, in accordance with applica-

ble law.

See, e.g., J.A. at 3146. The Board accepted the ALJ's credibility find-

ings on this matter:

The organizers were a group of men and women, some of

whom were young and some not so young. Some of the

organizers were white and some were black. I found all 37

organizers to be honest and competent individuals. Without

exception they impressed me by their demeanor on the stand

as individuals exceedingly worthy of belief. Not one of

these organizers, I find, ever said to an employee they were

_________________________________________________________________

the Union possessed majority support. Howell's name does not appear on

this list. The careful questioning that the majority shows the ALJ

engaged in with respect to Howell leads to the inescapable conclusion

that the ALJ recognized the cards she obtained were tainted and therefore

did not count them.

62

soliciting to sign a card that the signing of the union authori-

zation card was for the sole purpose of setting an election

or that an individual who signed a card was just indicating

that he or she wanted an election. In virtually all instances

the persons who signed the card were given the opportunity

to read the card, were encouraged to do so, and appeared to

do so. In those instances where the Union received the card

from a "key worker," i.e. an employee in the store who was

helping to organize the employees, one of the 37 organizers

would verify the signature on the card and ask the employee

if he or she understood the card and had any questions.

[. . .]

Not only don't I believe [Be-Lo's 43] witnesses . . . but

I'm convinced that the fact that these otherwise intelligent,

decent people would have come into a court room and tes-

tify as they did is evidence that the unfair labor practices of

Be-Lo have not been dissipated by the passage of time and

that a fair rerun election is not possible in this case. Many

of these employees, I conclude, were so terrified about their

job security and staying on Be-Lo's good side that they were

ready, willing, and able to help Be-Lo's case by saying that

union organizers said things to them in soliciting them to

sign authorization cards that were not said. Others were

merely mistaken when they claim what the person soliciting

the card said to them. A number of them claimed all they

remembered being said was that an election could be held

if enough employees signed a card and that they didn't read

the card.

J.A. at 377-78 (emphases in original) (footnote omitted); id. at 352

n.36. I find it simply incredible that the majority would merely cite

the entire footnote in which the ALJ made specific credibility

determinations,9 greatly excise the vast majority of the ALJ's textual

discussion of the basis of those findings, and then condemn the ALJ

for a "perfunctory footnote," for "stat[ing] conclusorily" his basis, and

_________________________________________________________________

9 Again, notably absent from the footnote is any mention of Kim How-

ell, in whom the majority inexplicably invests so much.

63

for "provid[ing] no more than a generalized, conclusory statement."

Slip op. at 14.

As we, and most, if not all, of our sister circuits, have noted, "It is

well settled that[,] absent exceptional circumstances, the ALJ's credi-

bility findings, `when adopted by the Board[,] are to be accepted by

the [reviewing] court.'" NLRB v. Air Prods. and Chems., Inc., 717

F.2d 141, 145 (4th Cir. 1983) (quoting Dubin-Haskell Lining Corp.

v. NLRB, 375 F.2d 568, 571 (4th Cir.), cert. denied, 393 U.S. 824

(1967)). See, e.g., Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1246

(D.C. Cir. 1994) ("[W]e must accept the ALJ's credibility determina-

tions, as adopted by the Board, unless they are patently

insupportable." (internal quotation marks and citation omitted)

(emphasis added)); NLRB v. Harding Glass Co., 80 F.3d 7, 10 n.2 (1st

Cir. 1996) (noting that "credibility determinations, of course, are for

the Board rather than for us to make, and they stand unless beyond

the `bounds of reason'" (internal quotation marks and citations omit-

ted) (emphasis added)); Kinney Drugs, Inc. v. NLRB, 74 F.3d 1419,

1427 (2d Cir. 1996) (stating that Board findings, "based on the ALJ's

assessment of the credibility of witnesses, . . . will not be overturned

unless they are hopelessly incredible or they flatly contradict either

the law of nature or undisputed documentary testimony" (internal

quotation marks and citation omitted) (emphases added); NLRB v.

Florida Medical Ctr., Inc., 576 F.2d 666, 671 (5th Cir. 1978) (stating

that credibility findings will be upheld unless "self-contradictory"

(emphasis added); Retlaw Broad. Co. v. NLRB, 53 F.3d 1002, 1006

(9th Cir. 1995) (stating that credibility determinations are upheld

unless "inherently incredible or patently unreasonable" (internal quo-

tation marks and citation omitted) (emphasis added)); Ready Mixed

Concrete Co. v. NLRB, 81 F.3d 1546, 1551 (10th Cir. 1996) (stating

that the court "refuse[s] to substitute our judgment on the credibility

of witnesses for that of the ALJ, absent `extraordinary

circumstances'" and that the court will not sit "as a super trial exam-

iner," weighing "the credibility of one witness against another" nor

searching for "contradictory inferences" (internal quotation marks and

citations omitted) (emphasis added)).

In Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65 (4th Cir. 1996), we

very recently rejected an almost identical challenge to an ALJ's credi-

bility determinations. In that case, the ALJ credited all 83 Board wit-

64

nesses and discredited all 154 of Fieldcrest's. There we faithfully

applied our Air Products precedent and refused to find "exceptional

circumstances," noting that the ALJ's careful fact-finding was entitled

to respect. See id. at 69-70. In particular, we allowed the ALJ's

assessments of demeanor to be general, since "the balancing of wit-

nesses' testimony is at the heart of the factfinding process, and it is

normally not the role of the reviewing courts to second-guess a fact-

finder's determinations about who appeared more `truthful' or `credi-

ble.'" Id. at 71. Indeed, we noted the important context that "[a]n

atmosphere of reprisal and recrimination against union supporters"

provided as a basis for evaluating the testimony of witnesses and

observed that it undoubtedly served to enhance "the credibility of

those who were accusing the company of violations." Id. at 72.

Rather than applying our own clear precedent in Air Products and

Fieldcrest, which is fully consonant with that of our sister circuits, the

majority, instead, misapplies our earlier language in Burlington

Indus., Inc. v. NLRB, 680 F.2d 974 (4th Cir. 1982). In context, we

there said:

As we have stated many times, we are in no position, when

viewing the cold record, to evaluate the credibility of wit-

nesses. For this reason, we heavily defer to the ALJ's deter-

minations of witness credibility. We are not, however,

required to accept the ALJ's credibility determinations

where they are not supported by substantial evidence.

Id. at 977 (citation omitted). Although in Burlington we did, in fact,

reject one of the ALJ's credibility determinations, we did so by spe-

cifically reviewing the record and finding substantial evidence for that

determination to be lacking. Indeed, we suggested that credibility res-

olutions could only fall by application of the substantial evidence test,

and, in that case, because it was clear that the Board's order would

remain unaffected, we refused to engage in any additional analysis.

See id. at 978. In the instant case, the majority not only ignores the

overwhelming precedent recognizing the heavy deference given to

credibility determinations, but abjures its responsibility to engage in

even one substantial evidence review of one of these determinations,

let alone the dozens that the ALJ responsibly made. That, I submit,

is "perfunctory" and "conclusory" and totally inappropriate for a

65

review of Board findings that is normally deferential by express Con-

gressional design. If the majority wishes to overturn these dozens of

credibility determinations, or at least enough of them to show that the

Union did not enjoy majority support, then it must assess each one

individually to determine whether it is supported by substantial evi-

dence.

I believe, in contrast, that such "exceptional circumstances," Air

Products, 717 F.2d at 145, as would warrant us in overturning these

credibility determinations do not exist here. The ALJ's reasoned

explanation for why it credited the organizers' testimony over Be-

Lo's terrified witnesses is not "patently insupportable," "beyond the

bounds of reason," "hopelessly incredible," "self-contradictory," nor

"patently unreasonable." The ALJ and Board therefore properly

counted these 43 cards.

Finally, I am totally dumbfounded by the majority's rejection of 13

authorization cards on the ground that the ALJ could not authenticate

them. See slip op. at 15-16. Federal Rule of Evidence 901(b)(3), by

its own terms, allows the trier of fact to authenticate by comparison

"with specimens which have been authenticated." In 14 cases, the

ALJ compared employee signatures on the authorization cards with

their signatures on their respective W-4 forms which were stipulated

to be authentic. The majority, with unfathomable logic, admits that

the W-4 forms themselves were authentic but declares that the signa-

tures on those forms were not. Slip op. at 15-16 n.4. What was being

stipulated to be authentic if not the signed W-4 forms which came

from the company's files? Although the majority may be confused,

certainly none of the parties nor the ALJ were, as the following collo-

quy demonstrates:

[Union counsel]: Your Honor, I think the issue is whether,

at this point in time in the trial, we need to put a witness on,

a lay witness, to say, yes, the signature on the W-4 looks

like the signature on the card. It seems to me that you're

going to make that decision anyway regardless--

[ALJ]: A lay witness to do that, no. You're not going--

you don't need to put a lay witness on.

66

[General Counsel]: And, that's all we're stating.

[Be-Lo counsel]: Yeah, we agree you don't have to put a

lay witness on.

[ALJ]: Okay. So, it's stipulated that these are authentic W-

4s from the Company's files for the people whose signature

appears on the W-4s . . . .

J.A. at 1082 (emphasis added). As this exchange proves, Be-Lo itself

stipulated that the signed W-4 forms from its own files were authentic

and that other witnesses would not have to be put on to authenticate

the signatures, allowing the ALJ to so determine by comparison. To

posit that a completed W-4 form is stipulated to be authentic but not

the signature thereon makes the above colloquy totally meaningless.

I could find no authority, and the majority cites none, in which a

reviewing court has determined that a signature on a document stipu-

lated to be authentic is itself unauthenticated. It is obvious that the

point of the colloquy was not to establish a basis for later challenging

the authenticity of the W-4 signatures but rather was merely to pre-

vent unnecessary delay in the trial by having laywitness after laywit-

ness authenticate signatures, pursuant to Fed. R. Evid. 901(b)(2),

when there was no question about their genuineness, having come

from Be-Lo's own files. See also 28 U.S.C. § 1731 ("The admitted or

proved handwriting of any person shall be admissible, for purposes

of comparison, to determine the genuineness of other handwriting

attributed to such person.").

In any event, the ALJ did, in fact, carefully compare the signatures

on the authorization cards with those on the W-4 forms. Indeed, he

rejected one of the 14 where the "handwriting was visibly and obvi-

ously different" but counted the remaining 13 since the two signa-

tures, in each case, "clearly appear to have been made by the same

person." J.A. at 378. Neither the ALJ nor the Board abused its discre-

tion in counting these 13 cards.

Because the majority either ignores or improperly applies the

appropriate standard of review with respect to the Board's resolution

of Be-Lo's exceptions to the authorization cards, I would conclude

that the Union possessed majority support on March 20, 1991.

67

3.

Even under the stricter requirements necessary to support a Cate-

gory II bargaining order, the Board thoroughly explained its rationale

in issuing the order, including the causal connection between the

unfair labor practices and the improbability that a fair rerun could be

held, as well as the issue of employee turnover, and substantial evi-

dence supports its conclusion that the bargaining order was more than

warranted. See J.A. at 352-54. The majority's rejection of the Board's

detailed analysis essentially boils down to its belief that the violations

were not widespread or pervasive and that, due to turnover in the

workforce, the effects of the violations have dissipated. See slip op.

at 16-23.

The 59 § 8(a)(1) violations occurred in 18 of the unit's 30 stores

and the 14 § 8(a)(3) violations occurred in 8 stores. According to the

ALJ's analysis, the Union enjoyed majority support in 19 of the 30

stores. See J.A. at 378-80. Not surprisingly, Be-Lo's unlawful anti-

union zeal manifested itself most frequently in those stores where the

Union enjoyed the greatest support.10 The ALJ found § 8(a)(1) viola-

tions to occur at only three stores where the Union did not enjoy

majority support11; no § 8(a)(3) violations occurred at such stores. At

_________________________________________________________________

10 Thus, for example, at Store 37, where 37 of 47 employees signed

authorization cards, the ALJ found 8 § 8(a)(1) violations and 1 § 8(a)(3)

violation; at Store 62, where 10 of 16 employees signed authorization

cards, the ALJ found 5 § 8(a)(1) violations; at Store 102, where 6 of 6

employees signed authorization cards, the ALJ found 4 § 8(a)(1) viola-

tions and 1 § 8(a)(3) violation; at Store 126, where 15 of 20 employees

signed authorization cards, the ALJ found 6 § 8(a)(1) violations and 3

§ 8(a)(3) violations; at Store 148, where 14 of 21 employees signed

authorization cards, the ALJ found 5 § 8(a)(1) violations and 2 § 8(a)(3)

violations; at Store 234, where 37 of 48 employees signed authorization

cards, the ALJ found 7 § 8(a)(1) violations; and at Store 235, where 12

of 18 employees signed authorization cards, the ALJ found 1 § 8(a)(1)

violation and 3 § 8(a)(3) violations.

11 It is of course possible that Be-Lo's vigorous anti-union campaign

dissipated majority support at these stores even before the authorization

cards were signed. Thus it could well be that its violations paid their divi-

dends.

68

only one store where the Union did enjoy majority support were no

individual violations found.

The majority contends that these numerous egregious violations are

not "pervasive" because they were not "felt throughout all, or virtually

all, of the bargaining unit." Slip op. at 17. No support is provided for

this assertion. In the circumstances of this case, it is ludicrous to

assert that where violations occur at 60 percent of the stores--and 95

percent of those stores where the Union exhibits majority support--

that such violations are not "pervasive" within the meaning of that

word for Gissel Category I purposes, let alone "extensive" within the

meaning of that word for Gissel Category II purposes, a category spe-

cifically designed for "less pervasive practices." See Gissel, 395 U.S.

at 613-14. It flies in the face of common sense to expect an anti-union

employer to attack where it already enjoys presumptive favor.

The majority further attempts to bolster its determination of lack of

pervasiveness by asserting that "only some 40 of Be-Lo's 756

employees (less than six percent of Be-Lo's work force) were directly

affected by these individual violations." Slip op. at 18. The Board

obviously made no such finding. Moreover, the test for the effect of

violations has never been directly individualized. The majority's

approach would require hundreds of violations in order to be "perva-

sive" under the facts of this case. Because such an approach plainly

ignores the dynamics of the workplace, we have previously noted that

the natural "assumption is that employer threats, especially threats of

plant closure, are rapidly disseminated among the employee group."

Air Prods., 717 F.2d at 146 (citations omitted). Here at least 20

repeated threats of store closure, not counting the company-wide

"pink slip" episode, were made at 14 separate stores prior to the

election.12 Applying this presumption just to the 14 stores at which the

threats of store closure were made (i.e. assuming that none of these

threats of store closure, nor any of the other threats, were communi-

cated by affected employees to any employees at the other 16 stores),

still results in the conclusion that nearly 400 employees (384) were

affected by these threats. Thus, more than 50 percent of Be-Lo's

_________________________________________________________________

12 The ALJ found repeated threats of store closure, a hallmark § 8(a)(1)

violation, to be made at Stores 27, 37, 73, 102, 107, 110, 122, 126, 144,

145, 148, 232, 234, and 236. See J.A. at 360-74.

69

employees were affected just by the threats of store closure alone, far

more than the 20 percent we found to be sufficient to satisfy

Appletree Chevrolet I requirements in Air Products.13 See id. Because

of the seriousness of threats of closure, courts routinely enforce Gissel

Category II bargaining orders, without ever inquiring into the percent-

age of workers directly affected by the violations. See, e.g., Indiana

Cal-Pro, Inc. v. NLRB, 863 F.2d 1292, 1301-02 (6th Cir. 1988);

NLRB v. Horizon Air Servs., Inc., 761 F.2d 22, 31 (1st Cir. 1985).

The majority also rests its decision that a fair rerun election is pos-

sible on the grounds that employee turnover and the passage of time

have dissipated the effects of the unfair labor practices. It appears the

majority wants to create some level below the four year period

between the election campaign and the Board's decision and the 66

percent employee turnover during that time into mechanistic thresh-

olds above which bargaining orders can never be supported. For

example, the majority attaches portentous significance to the fact that

"[a]t oral argument, neither counsel for the Board nor counsel for the

Union could cite us to any case in which a Gissel Category II order

was enforced in the face of [66 percent] employee turnover." Slip op.

at 21-27. This is simply false. In response to our query, counsel noted

at oral argument that the Board, in its written opinion, cited Action

Auto Stores, 298 N.L.R.B. 875 (1990), enf'd mem. 951 F.2d 349 (6th

Cir. 1991), in which a bargaining order was enforced where there was

75 percent turnover. See J.A. at 353 n.41. The majority is also forced

to distinguish our decision in NLRB v. So-Lo Foods, Inc., 985 F.2d

_________________________________________________________________

13 This analysis does not rely on the "pink slip" which was distributed

to every employee. Because I believe substantial evidence supports the

Board's conclusion that the "pink slip" episode constitutes a § 8(a)(1)

threat of store closure, a fortiori, I would conclude that there can be no

question but that the impact of Be-Lo's unlawful conduct was "perva-

sive" or "extensive" within the meaning of either category of Gissel

order.

In addition, this analysis does not rely on Be-Lo's disparate enforce-

ment of its no-solicitation policy. Uncounted numbers of employees must

necessarily have seen the picketers, including

This text is long and has been trimmed here. Open the source document for the complete record.