Opinion

Overnite Transportation Co. v. National Labor Relations Board

280 F.3d 417

Court: Court of Appeals for the Fourth Circuit
Filed: Mar 13, 2002
Status: Published
On the bench: Wilkinson, Widener, Wilkins, Niemeyer, Luttig, Williams, Michael, Motz, Traxler, King, Gregory
Cited by: 4 cases
Authority: More cited than 38.9%

collecting cases for the proposition that sanctions are the generally recognized remedy

How later courts described this case

collecting cases for the proposition that sanctions are the generally recognized remedy

Written by the judges who cited it.

The opinion

Filed: March 13, 2002

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 99-2494(L)

(18-CA-13394, et al.)

Overnite Transportation Company,

Petitioner,

versus

National Labor Relations Board,

Respondent.

O R D E R

The court amends its opinion filed February 11, 2002, as

follows:

On page 28, line 6 after first indented quotation -- the cita-

tion for So-Lo Foods is corrected to begin “985 F.2d 123.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

OPINION ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OVERNITE TRANSPORTATION COMPANY,

Petitioner,

NATIONAL LABOR RELATIONS BOARD, No. 99-2494

Respondent,

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS,

Intervenor.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

OVERNITE TRANSPORTATION COMPANY, No. 00-1065

Respondent,

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS,

Intervenor.

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board.

(18-CA-13394, 18-CA-13481, 18-CA-13642, 18-CA-13394,

18-CA-13438, 18-CA-13484, 18-CA-13394-51, 18-RC-15812,

18-CA-15812, 18-CA-13394-35, 18-CA-13395-36, 9-CA-33793,

18-RC-15814, 18-CA-13394-27, 8-RC-15786, 18-RC-15782,

18-CA-13394-91, 18-CA-13394-13, 18-RC-15768, 18-CA-13916,

4-RC-18747, 5-RC-14213, 9-RC-16504, 9-RC-16505)

Argued: September 25, 2001

Decided: February 11, 2002

Before WILKINSON, Chief Judge, and WIDENER, WILKINS,

NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,

TRAXLER, KING, and GREGORY, Circuit Judges.

____________________________________________________________

By published opinion, petition for review granted in part and

denied

in part, cross-application for enforcement denied to the

extent incon-

sistent with the opinion, and case remanded for reelections

at four

sites. Judge Niemeyer wrote the opinion, in which Chief

Judge Wil-

kinson and Judges Widener, Wilkins, Luttig, Williams, and

Traxler

joined. Judge Gregory wrote a separate opinion concurring

in part and

dissenting in part. Judge King wrote a dissenting opinion, in

which

Judge Michael and Judge Motz joined.

____________________________________________________________

COUNSEL

ARGUED: Kenneth T. Lopatka, MATKOV, SALZMAN, MADOFF

& GUNN, Chicago, Illinois, for Overnite. William M.

Bernstein,

Senior Attorney, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for Board. Carey Robert Butsavage,

BUTSAV-

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

BRIEF: Kenneth F. Sparks, Christopher A. Johlie, MATKOV,

SALZMAN, MADOFF & GUNN, Chicago, Illinois, for Overnite.

Leonard R. Pate, General Counsel, Linda Sher, Associate

General

Counsel, Aileen A. Armstrong, Deputy Associate General

Counsel,

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

Board. Marc A. Stefan, BUTSAVAGE & ASSOCIATES, P.C.,

Washington, D.C., for Intervenor.

____________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

In this case, we decide whether, under the principles of

NLRB v.

Gissel, 395 U.S. 575 (1969), the National Labor Relations

Board

properly ordered a company to bargain with a union that did

not win

its representation election.

In the fall of 1994, the International Brotherhood of

Teamsters,

AFL-CIO, and its affiliated locals ("Teamsters") began a

nationwide

campaign to organize the employees of Overnite

Transportation Com-

pany, headquartered in Richmond, Virginia. At that time,

Overnite

was one of the nation's largest nonunion trucking companies,

with

approximately 175 service centers across the country and

approxi-

mately 14,000 employees.

In its campaign, the Teamsters promised Overnite

employees that

union representation would bring a new golden age, when

the

employees would have the benefit of the National Master

Freight

Agreement and would receive wage increases of more than

$2.50 per

hour, larger pensions, less expensive and more

comprehensive medi-

cal benefits, and more favorable work rules. While

Overnite observed

that such a pay package would cost an amount that exceeded

the sum

of its profits, it nevertheless sought to portray a bright

future without

union representation under the leadership of its new

president, Jim

Douglas. Perhaps to provide a glimpse of that bright

future, Overnite

announced, during the heated campaign, a national pay

increase.

The Teamsters' efforts led to elections at numerous

Overnite ser-

vice centers in 1995. In connection with those elections, the

Team-

sters filed complaints of unfair labor practices against

Overnite, and,

at 17 locations where the union lost, rather than seek new

elections,

the Teamsters sought orders directing Overnite to bargain

with the

union, based on NLRB v. Gissel.

The numerous proceedings before the National Labor

Relations

Board ("Board") were consolidated into one massive

proceeding.

Some elections were certified, and issues relating to others

were set-

tled. The parties agreed, however, to litigate the

complaints at four

locations where Gissel bargaining orders were sought —

Bridgeton,

Missouri; Norfolk, Virginia; Louisville, Kentucky; and

Lawrenceville, Georgia. Ultimately, the Board found

widespread

unfair labor practices at these four locations, as well as

nationwide

unfair labor practices stemming from Overnite's pay

increases in

March 1995 and January 1996. The Board further found

that, at these

four locations, the ability to hold new elections that were

fair "would

be unlikely" and that the employees' wishes at these

locations were

"better gauged by . . . old card majorit[ies] than by . . . new

elec-

tion[s]." The Board therefore chose not to order new

elections, opting

instead to enter Gissel orders directing Overnite to bargain

with the

Teamsters.

On Overnite's petition for review and the Board's

cross-application

for enforcement, we conclude that most of the Board's

findings of

unfair labor practices were supported by substantial

evidence, but

some were not. We also conclude that the Board's decision

to issue

Gissel orders was not supported by evidence sufficient to

justify that

extraordinary relief. By declining to follow our

long-standing prece-

dents for the application of Gissell, the Board improperly

bypassed

the employees' will on the question of representation,

frustrating the

fundamental policy of employee democracy established by

Congress

in the labor laws. Accordingly, we grant in part and deny in

part

Overnite's petition for review; we deny the Board's

cross-application

for enforcement insofar as its order is inconsistent with

this opinion;

and we remand this case for new elections at the four

service centers.

Before the Teamsters' organizing effort that commenced

in late

1994, Overnite was a nonunion trucking company. Over the

years,

since at least 1980, it had followed the practice of

granting its

employees annual pay raises which took the form of either

direct

increases in hourly wages or increases in base mileage rates.

The

raises varied in character and in amount, depending upon

Overnite's

financial performance during the relevant period.

Until 1991, a raise was granted every October. In 1991,

however,

poor performance forced Overnite to defer the raise until

January

1992. Even then, only a small wage increase was granted.

Again in

1992, Overnite deferred the annual raise to January 1993.

By the end

of 1993, continuing financial weakness forced Overnite to

alter the

form of its raise altogether. In addition to continuing its

trend of

deferring raises until January, Overnite changed the form

of its raise

in 1994 to a Performance Incentive Plan. Under the Plan,

employees

were to earn additional compensation after specified

quarterly earn-

ings targets were reached. In practice, however, the

company met the

targets only once, leading to only one Performance

Incentive Plan

payment. It was, perhaps, in response to Overnite's

vulnerability from

employee dissatisfaction with the Performance Incentive

Plan that, in

September 1994, the Teamsters began a campaign to organize

Over-

nite's employees.

Overnite president Thomas Boswell responded to the

organizing

effort with a letter to employees, dated November 22, 1994,

in which

he criticized the Teamsters, warning that the union did not

have the

employees' interests in mind. He stated that the Teamsters

cared only

about obtaining income through union dues and the

employees' pen-

sion fund, and he suggested that the union often caused

strikes, harm-

ing both the employer and the employees. Boswell asserted

that

unionized companies "have often lost the battle to survive,"

pointing

out that, over the last 30 years, the 50 top trucking

companies had

dwindled to 8 and that almost all had dealt with employees

through

the Teamsters.

In addition to criticizing the Teamsters, Boswell

acknowledged, in

December 1994, that the Performance Incentive Plan had

been a fail-

ure. To cure this failure, he announced yet another version

of the

annual raise. Hourly employees would receive a 50-cents per

hour

raise in January 1995, along with other "improvements," such

as com-

pensation for time lost during breakdowns or weather

delays. Never-

theless, by the end of 1994, two service centers — at Kansas

City,

Kansas, and Indianapolis, Indiana — had elected union

representation

and were certified.

Overnite responded to the 1994 employee dissension by

making

Jim Douglas its new president in January 1995. As promised

in Bos-

well's December announcement, Overnite awarded the

50-cent wage

increase that month. Nevertheless, the Teamsters'

momentum contin-

ued as, during February, the union was elected and certified

as the

employees' bargaining representative at two more service

centers —

at Blaine, Minnesota, and Sacramento, California — bringing

the

Teamsters' representation to a total of four sites. By then,

elections

were also scheduled at 22 other service centers for

February and

March, and application petitions had been filed at 5 more.1

Possibly in response to the union's successes, Douglas

sent

employees a letter in February 1995 announcing a second

1995 wage

increase of 55 cents per hour, plus an increase in the

mileage rate and

a $250 safety bonus, all of which were to take effect in

March. In the

letter, Douglas acknowledged that Overnite's pay had

fallen behind

that of some competitors. Although the letter was sent to

all employ-

ees, including those represented by the union at the four

certified ser-

vice centers, Overnite stated that it was "prohibited from

unilaterally

implementing this discretionary increase for [represented]

employ-

ees." Overnite also trumpeted this March 1995 wage increase

in a

new newsletter, The Overniter, announcing in large, bold

type,

"hourly wage increases across the board." The newsletter

stated in

smaller bold type that "Kansas City, Indianapolis, West

Sacramento

and Blaine employees who voted for Teamsters [were] not

eligible."

In addition to the March 1995 wage increase, Douglas

undertook

a more concerted campaign against the Teamsters on two

fronts. First,

he sought to motivate Overnite's management to engage in

the fight

against the Teamsters, making numerous statements in

letters and

speeches to the effect that the Teamsters were a threat to

the company

____________________________________________________________

Elections were scheduled at Bensalem, Pennsylvania

(2/2/95); Corn-

well Heights, Pennsylvania (2/14/95); Bridgeton, Missouri

(2/28/95);

Milwaukee, Wisconsin (3/6/95); Appleton, Wisconsin (3/6/95);

Grand

Rapids, Michigan (3/7/95); Detroit, Michigan (3/15/95);

Lexington, Ken-

tucky (3/15/95); London, Kentucky (3/16/95); South Bend,

Indiana

(3/16/95); Louisville, Kentucky (3/17/95); Charleston, West

Virginia

(3/20/95); Parkersburg, West Virginia (3/21/95); Pennsauken,

New Jer-

sey (3/23/95); Toledo, Ohio (3/24/95); Elmsford, New York

(3/24/95);

Cincinnati, Ohio (3/28/95); Rockford, Illinois (3/28/95);

Nashville, Ten-

nessee (3/29/95); Dayton, Ohio (3/30/95); Parsippany, New

Jersey

(3/31/95); and Norfolk, Virginia (3/31/95). Also, election

petitions had

been filed in Lafayette, Indiana; Fort Wayne, Indiana;

Bowling Green,

Kentucky; Moonachie, New Jersey; and Bayshore, New York.

and that working conditions would be better if Overnite

remained

union-free. In a letter sent to Overnite's service center

managers, he

stated that the union's campaign was "the biggest war of our

lives"

and that, to win, management had to "sound the bugle call

and

unleash the fury of the Overnite machine." He urged

Overnite to

"muster [its] troops to all out attack."

The second front targeted Overnite's employees directly.

Through

Douglas's leadership, Overnite started a campaign called

"Give Jim

a Chance," distributed T-shirts and buttons, and promised

greater

responsiveness to employee concerns. Douglas personally

visited

many service centers to inquire about employee concerns,

asserting

that his approach would be much different from that of

former-

president Boswell and that he would take care of the

employees.

Douglas also sent out a "quality team" of "troubleshooters"

to Over-

nite's service centers, whose mission was to discover the

causes of

employee unrest and to assess who favored the Teamsters

and who

did not. Acting as company ombudsmen, the troubleshooters

prom-

ised to take employee grievances back to Overnite's

headquarters and

to resolve them.

While assuring employees that it could meet their needs,

Overnite

was candid about its opinion of unions. Overnite's employee

hand-

book stressed "that this Company values union-free working

condi-

tions." Overnite also widely publicized the 13-year

bargaining

stalemate at its Chicago service center, where the

Teamsters repre-

sented the employees. Even though a union had been

certified in Chi-

cago as early as 1982, Overnite pointed out that bargaining

there had

attained few favorable results for the employees. The

union had con-

ducted a strike there but still had no contract with

Overnite.

In addition to its nationwide efforts, Overnite countered

the union

organizing effort with its own carrot-and-stick campaign at

individual

service centers, including the four at issue in this case —

Bridgeton,

Norfolk, Louisville, and Lawrenceville. The Board found

many of

Overnite's actions in furtherance of its campaign to be

unfair labor

practices.

In Bridgeton, pro-union literature was removed from the

break

room, the bulletin board, and the employee bathroom, while

anti-

union literature was left alone. Supervisors followed

pro-union

employees and interfered with their conversations with

other employ-

ees. To complement the anti-union sentiment, Overnite sent

"trouble-

shooters" to ride with the drivers, soliciting grievances

from them.

The service center manager also told the employees that

Overnite was

looking into overtime and, while he could not make

promises, he was

"pretty sure" it would happen; it was "almost a done deal."

Douglas

visited Bridgeton several times to discuss overtime pay with

the

employees. He told the employees that the company would

take care

of its own and that it did not need third party interference.

The elec-

tion was held on February 28, 1995, and the union lost by a

vote of

24 to 22.

In Norfolk, where employees had been permitted to post

anything

on bulletin boards, pro-union literature was destroyed and

employee who posted such literature was told by a manager

that "peo-

ple could get fired for this." Supervisors broke up

conversations, and

a manager warned employees that their relationships with

their super-

visors would change for the worse if the union were

elected. Two pro-

union employees were called "agitators" by their manager,

and the

manager added that he did not want anything bad to happen

to them

and that they should be careful. He implied that, if the

union lost the

election, they could be fired for their pro-union stance.

The head ser-

vice center manager made predictions about the

consequences of

unionization. He noted that union employees at Kansas City

had not

received the March 1995 wage increase, and he warned that

the Nor-

folk bargaining experience would result in a stalemate like

the one in

Chicago. Another supervisor indicated that the then-pending

March

wage increase would be lost if the union was elected. The

election

was held on March 31, 1995, and the union lost by a vote of

58 to

29.

In Louisville, Overnite's central management urged

employees to

give Jim Douglas a chance. An Overnite Vice President visited

Louis-

ville in November 1994 and asked employees if there were

com-

plaints with which he could help them. When told that the

employees

wanted overtime pay, he said that, while he could not

promise to pay

time-and-a-half, "possibly, in the future, things might get

better." In

March 1995, about a week before the election, Douglas

visited Louis-

ville, again promising improvements. He used the March 1995

wage

increase as an example of his positive changes. On the

negative side

of the carrot-and-stick campaign, Douglas warned employees

that the

Teamsters would likely try to block the March 1995 pay

raise. Other

Overnite management warned that, if elected, the Teamsters

would

ruin Overnite. Dispatchers told two employees that, if

Overnite went

union, it would close its doors, leaving all the employees

out of work.

An Overnite vice president told the employees that company

repre-

sentatives simply showed up for negotiations in Chicago,

explaining

that even if charges were filed for bargaining in bad faith,

the com-

pany would be required only to pay a small fine. It would

then not

have to return to the negotiating table until the following

year. He

suggested that the only way to get a union contract would

be to go

on strike, and employees who took that course could be

replaced. The

"Wheel of Misfortune," a circular passed out during a

discussion of

strikes, showed employees what they could lose by going on

strike.

A supervisor warned that, if the union was elected, he

would enforce

company rules more stringently, writing employees up for

every argu-

able violation. A supervisor also warned that Overnite

would "play

hardball" if the union won the election. As election day

approached,

supervisors removed pro-union materials from the break

room, leav-

ing anti-union materials. One supervisor told an employee

that the

union pin he was wearing could be hazardous to his health.

Another

supervisor told an employee that, since the union campaign

had

started, he had an "attitude problem." A supervisor

prohibited union

adherents from talking with other employees. The

Louisville election

was held on March 17, 1995, and the union lost by a vote of

85 to

83.

In Lawrenceville, employees were also prevented from

posting

pro-union materials on employee bulletin boards in the

break room.

At mandatory meetings, employees were told that Overnite

would go

out of business if the Teamsters were elected, and

employees who

supported the union were advised to seek employment at a

union

company. Managers and an Overnite vice president reminded

the

employees of the troubled Chicago bargaining experience,

warning

that, even if the union won the election, Overnite would

take an

adversarial bargaining position with every incentive to meet

only the

bare requirements of good-faith bargaining. One dispatcher

cautioned

that the company would never sign a union contract. A

manager

warned that he would revert to previously ignored

infractions if he

needed to get rid of people. Again, the warnings were

supplemented

with the message that existing management would

adequately meet

the employees' needs. The service center manager

encouraged

employees to give Jim Douglas a chance. He suggested that

improve-

ments in the company were imminent, but that they would be

avail-

able only if employees voted against the union. On separate

occasions, a dispatcher and a vice president noted that the

Kansas

City service center, which had voted for the Teamsters, did

not get the

March 1995 pay raise and that the raise would have to be

negotiated

with the union. Shortly before the scheduled election,

Douglas visited

Lawrenceville and asked one employee whether he was

willing to

sacrifice 14,000 jobs for "this campaign." The election was

held on

April 17, 1995, and the union lost by a vote of 42 to 38.

Based on these incidents, the Teamsters filed numerous

unfair

labor practice complaints, and at 17 service centers where

it lost elec-

tions, it sought orders from the NLRB directing Overnite to

bargain

with the Union without having new elections. The Board's

General

Counsel issued a consolidated complaint alleging that

Overnite vio-

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

(the

"Act"), 29 U.S.C. § 158(a)(1) and (3). As characterized by the

admin-

istrative law judge ("ALJ") and by the Board, the proceedings

were

"massive," involving numerous allegations of unfair labor

practices at

distinct locations as well as alleged nationwide unfair

labor practice

in implementing the March 1995 wage increase.

In July 1995, the General Counsel and Overnite settled

almost all

of the § 8(a)(1) unfair labor practice complaints and those

§ 8(a)(3)

unfair labor practice complaints for which the only remedy

required

was a cease-and-desist order and the posting of notice. They

also set-

tled certain § 8(a)(3) complaints relating to the national

wage package

at specified locations where the Teamsters had already

been certified

as representing the employees. The settlement left for

resolution the

so-called "national" allegations and other allegations that,

in the Gen-

eral Counsel's view, supported Gissel bargaining orders. In

consider-

ing the Gissel orders, the General Counsel specifically

reserved the

right to use evidence pertaining to allegations that had

previously

been settled. Thus, following the July 1995 settlement, the

parties

agreed to litigate the Gissel complaints with respect to the

four ser-

vice centers at Bridgeton, Norfolk, Louisville, and

Lawrenceville.

By the end of 1995, the Teamsters represented the

employees at

eight of Overnite's service centers, and the union had been

elected to

represent the employees at six other centers where it was

awaiting

certification. The Teamsters locals had also entered into

coordinated

bargaining with Overnite through a Teamsters national

committee

founded for that purpose.

Meanwhile, during 1995, Overnite continued its annual

practice of

assessing its financial performance for the purpose of

setting the

terms of its annual wage increase. Because another year of

financial

losses made a wage increase appear impossible, Overnite

retained a

consultant to study its operations and to recommend

productivity

improvements. The consultant proposed numerous changes

which it

predicted would result in annual savings to Overnite of

approximately

$65 million. To make possible a wage increase for 1996 of

between

40 cents and 60 cents per hour, Overnite decided to link the

raise to

the consultant's recommended productivity changes.

On December 7, 1995, Overnite conducted satellite

conferences

with all of its service center managers and provided them

with an

extensive guide to use in presenting the productivity

changes to

employees. Overnite then notified its unrepresented

employees of the

changes on December 11, 1995, presenting the changes

through a vid-

eotape of Douglas and supporting documents. On that day,

the infor-

mation was also sent, via overnight mail, to the union

representatives

of Overnite's certified service centers and to the

representatives of

service centers still awaiting certification. Overnite

offered the Team-

sters the same package that was granted to nonunion

employees. On

December 13, several days before the negotiations with

union repre-

sentatives were scheduled to begin, Overnite held a meeting

where it

explained the proposed terms of the 1996 wage increase to

repre-

sented employees and to employees at the service centers

awaiting

certification.

Overnite's plan was to link the 1996 wage increase to

performance,

as it had done in previous years. Thus, in exchange for a wage

increase, Overnite sought to implement productivity

improvements by

retaining the right, among other things, to set work days,

hours, and

routes; to assign work and equipment; to separate employees

involun-

tarily; to contract for casual or temporary personnel; and

to divert

freight to alternative modes and carriers. The Teamsters,

however,

took the position that the "wage increase [was] an

established past

practice of Overnite, and that, as [Overnite was] obligated

to maintain

the status quo pending a collective-bargaining agreement,

the wage

increase must be extended to [represented employees]."

Because the

Teamsters refused to negotiate the productivity changes,

except as

part of an overall contract, Overnite eventually declared

an impasse

in negotiations. It announced its intention to implement the

productiv-

ity agreement unilaterally at the six units awaiting

certification, effec-

tive August 4, 1996.

The union filed another unfair labor practice complaint,

alleging

that, by explaining the productivity changes to the

employees in the

represented centers without first adequately negotiating

with the

Teamsters, Overnite bypassed the union and engaged in

direct deal-

ing. The union also alleged that Overnite unilaterally

changed the rep-

resented employees' terms of employment by failing to give

them the

wage and benefit improvements and by implementing the

terms of the

productivity changes at the six units where the Teamsters

had been

elected but not yet recognized. This complaint was added to

the con-

solidated proceedings that were in progress.

The Board, substantially affirming the ALJ's lengthy

findings, con-

cluded that Overnite "had committed unfair labor practices

affecting

employees on a nationwide basis and that the issuance of

Gissel bar-

gaining orders was warranted." Overnite Transp. Co., 329

N.L.R.B.

1 (Nov. 10, 1999). Finding that the conduct fell within a

Category II

type of order, as identified by the Supreme Court's opinion

in Gissel,

the Board explained:

[Overnite's] course of misconduct both before and

after the

elections, clearly demonstrates that the holding of

fair elec-

tions in the future would be unlikely and that the

"employ-

ees' wishes are better gauged by [ ] old card

majorit[ies]

than by . . . new election[s]."

Id. at 2 (quoting Charlotte Amphitheater Corp. v. NLRB, 82

F.3d

1074, 1078 (D.C. Cir. 1996) (modifications in the original)).

The

Board relied not only upon evidence relating to unfair

labor practices

alleged to have occurred before the July 1995 settlement,

but also

upon the January 1996 wage increase.

The Board pointed to the January 1996 wage increase to

reject

Overnite's argument that a Gissel order was unnecessary

because it

had corrected its practices after the July 1995 settlement.

Id. at 3. In

response to Overnite's two other arguments for why a Gissel

order

was inappropriate — that significant time had elapsed and

that sub-

stantial employee turnover had occurred — the Board

stated that the

facts of time passage and employee turnover were

irrelevant. Reject-

ing the employee-turnover argument, the Board stated:

The Board traditionally does not consider turnover

among

bargaining unit employees in determining whether a

bar-

gaining order is appropriate, but rather assesses

the situation

at the time the unfair labor practices were

committed.

***

In the present case, even accepting, arguendo, the

facts

asserted by [Overnite] concerning employee

turnover, we

find the effects of [Overnite's] unlawful conduct

are not

likely to be sufficiently dissipated by turnover to

ensure a

free second election.

***

As the Fifth Circuit has recognized, "Practices may

live on

in the lore of the shop and continue to repress

employee sen-

timent long after most, or even all, original

participants have

departed."

Id. at 5 (quoting Bandag, Inc. v. NLRB, 583 F.2d 765, 772 (5th

Cir.

1978)). Accordingly, the Board ordered Overnite to cease

and desist

from implementing the January 1996 wage increase and

directing it

to bargain with the Teamsters at the four locations at

issue.

On appeal, a divided panel of this court affirmed the

Board, grant-

ing its cross-application for enforcement and denying

Overnite's peti-

tion for review. Overnite Transp. Co. v. NLRB, 240 F.3d 325

(4th Cir.

2001). The panel held that the Board's findings of unfair

labor prac-

tices were supported by substantial evidence and that the

Board acted

properly in bypassing new elections in favor of Gissel

bargaining

orders. Pursuant to a request for a poll, the court voted to

rehear this

case en banc and, in ordering a rehearing en banc, vacated

the panel

decision.

In support of its conclusion that Overnite committed

unfair labor

practices, the Board found (1) that the March 1995 wage

increase was

coercive and discriminatory, in violation of § 8(a)(1) and (3)

of the

Act; (2) that other unfair labor practices, although settled

in July

1995, nonetheless provided evidence of illegal conduct at

the four

sites in question to support Gissel orders; and (3) that the

January

1996 wage increase was coercive and discriminatory, in

violation of

§§ 8(a)(1) and 8(a)(3) and involved direct negotiations with

repre-

sented employees, in violation of §§ 8(a)(1) and 8(a)(5) of the

Act.

The Board also found that certain attorney questioning of

Overnite

employees at the Louisville service center was coercive, in

violation

of § 8(a)(1) of the Act. Overnite challenges these findings,

contending

that they are not supported by substantial evidence.

It is now well settled that Board findings of fact are

conclusive as

long as they are "supported by substantial evidence on the

record con-

sidered as a whole." 29 U.S.C. § 160(e); Universal Camera

Corp. v.

NLRB, 340 U.S. 474, 490-91 (1951). While "[t]he Board may not

base its inference on pure speculation . . . it may draw

reasonable

inferences from the evidence." Owens-Corning Fiberglas

Corp. v.

NLRB, 407 F.2d 1357, 1362 (4th Cir. 1969). Even though we

might

reach a different result after hearing the evidence in the

first instance,

we defer to the Board's findings of fact that are supported

by substan-

tial evidence. NLRB v. Daniel Constr. Co., 731 F.2d 191, 193

(4th

Cir. 1984).

Under this standard, we conclude that substantial

evidence supports

the Board's findings with respect to the March 1995 wage

increase

and the localized unfair labor practices at the four

locations consid-

ered in this case. We further conclude, however, that the

Board's

unfair labor practice findings with respect to either the

January 1996

wage increase or the attorney questioning of Overnite's

employees at

Louisville are not supported by substantial evidence. We

address

these conclusions seriatim.

Both the timing and the context surrounding the March

1995 wage

increase support the Board's inference that the increase

was intended

to influence upcoming union elections and to discriminate

against

those favoring the union. With regard to timing, a red flag

is raised

by the fact that this wage increase was in addition to the

normal wage

increase that the company had implemented over the years

in either

October or January. Overnite had already granted its usual

wage

increase in January 1995, and it announced the March 1995

increase

as a supplement.

In addition, the 1995 wage increase was granted at a time

that was

close to elections at several service centers. Elections

were scheduled

in late February (soon after the announcement of the March

1995

wage increase) at three service centers. They were

scheduled in

March (when the raises would begin to appear on paychecks)

at 19

service centers. Also, at the time of the announcement,

election peti-

tions had been filed at five other service centers. The

timing of a wage

increase alone might have been sufficient to support the

Board's find-

ing of an unfair labor practice. See NLRB v. Exchange Parts

Co., 375

U.S. 405, 409 (1964) (noting the "danger inherent in

well-timed

increases in benefits"); J.P. Stevens & Co. v. NLRB, 461 F.2d

490,

492 (4th Cir. 1972) (inquiring whether substantial evidence

supported

a finding that a benefit announcement was timed to "give[ ]

[employ-

ees] cause to infer that the benefit might be withdrawn or

future bene-

fits withheld should they select a union to represent

them").

In addition to the timing of the March 1995 wage

increase, the con-

text in which it was granted supports the Board's inference

of an

intent to influence elections. The Board set forth a laundry

list of cir-

cumstances from which the employees could infer that "the

source of

benefits . . . conferred is also the source from which future

benefits

must flow and which may dry up if it is not obliged."

Overnite

Transp., 329 N.L.R.B. at 3 (quoting Exchange Parts, 375 U.S. at

409). The wage increase was announced prominently in The

Over-

niter with a bold-type message that union employees were

not eligible

for the increase. Overnite also advised employees that it

would not be

able to grant the wage increase to represented employees.

Moreover,

the March 1995 wage increase was given in conjunction with

the

"Give Jim a Chance" campaign and Douglas's visits to service

centers

to solicit employee grievances. It followed letters from

Douglas to

employees, asserting that the union was a threat to

Overnite and refer-

encing the Chicago bargaining experience. These efforts

were made

against the backdrop of Overnite's employee handbook which

stated

"that this Company values union-free working conditions."

Thus, in

addition to timing, we conclude that the context of the

March 1995

wage increase supports the Board's finding. See

Owens-Corning, 407

F.2d at 1362 (noting that, while timing is a factor, "the

thrust of

Exchange Parts is the condemnation of granting such

benefits with

the purpose of affecting the outcome of an election").

Overnite attempted to respond to the General Counsel's

evidence

with evidence that it was pursuing "a proper business

purpose." See

J.P. Stevens & Co., 461 F.2d at 493. We conclude, however,

that in

the context of a national campaign accompanied by numerous

com-

pany actions — some legal and some not — it remained within

the

Board's prerogative to make the factual findings that it

made, and

substantial evidence in the record supports those findings.

"[I]t is not

our province, where substantial evidence supports the

conclusion of

the Board, to substitute our own judgment for that of the

Board."

Owens-Corning, 407 F.2d at 1360-61.

There is also substantial evidence in the record to

support the

Board's finding of § 8(a)(1) violations at Overnite's service

centers in

Bridgeton, Norfolk, Louisville, and Lawrenceville. At these

locations,

Overnite led a "carrot and stick" campaign, promising

improvements

while warning that hard times were sure to follow if the

Teamsters

were elected.

At all four centers, Overnite solicited grievances from

employees

and implied that changes were imminent. As with the March

1995

wage increase, the circumstances surrounding this sudden

generosity

suggested a "fist inside the velvet glove." Exchange Parts,

375 U.S.

at 409. Management at all four service centers prohibited

the posting

of pro-union fliers in the break rooms. Bridgeton

supervisors took fur-

ther measures to interfere with pro-union employees'

ability to com-

municate with other employees. Moreover, by reminding

employees

of the Chicago experience and threatening to play hard ball

when

negotiating with any union, Overnite implied that collective

bargain-

ing would be futile. In addition to these violations at all

four service

centers, the supervisors at Louisville and Lawrenceville

warned that

Overnite could go out of business if the union were elected.

While the

supervisors never threatened plant closure, it was not

erroneous for

the Board to conclude that the warnings were intended to

influence

the upcoming election.

In addition to carrying out the carrot-and-stick

campaigns, the

supervisors at Lawrenceville, Louisville, and Norfolk were

candid in

expressing disdain for pro-union employees. In Louisville, a

pro-

union employee was told that he had "an attitude problem."

In Nor-

folk, pro-union employees were referred to as "agitators"

and were

warned to be careful of retaliation if the union lost. While

these com-

ments may not have been explicit threats of retaliation,

they provide

support for the Board's conclusion that Overnite intended

to influence

the outcome of the elections.

Unlike the findings about the March 1995 wage increase

and the

localized conduct, the findings that the January 1996 wage

increase

constituted an unfair labor practice are not supported by

substantial

evidence. The 1996 wage increase was granted at a different

time and

in a different context than the 1995 wage increase. Whereas

the 1995

wage increase was granted in the face of over 20 pending

elections,

the 1996 wage increase was made when few elections were

pending

and after a major settlement had occurred. Moreover, while

the 1995

wage increase was granted in March as the second wage

increase of

the year, the 1996 wage increase was granted in January, at

what had

become the "usual time" for Overnite's annual wage increase.

Moreover, the 1996 wage increase was not featured in

The Over-

niter with warnings that it would be unavailable to union

employees,

and it was not coupled with warnings that bargaining would

be futile.

To the contrary, Overnite offered the represented

employees exactly

what it granted the unrepresented employees. As had been

Overnite's

practice, the offer for a wage increase included conditions;

there were

performance requirements that made it possible for

Overnite to justify

the wage increase even though it had suffered losses the

year. The Teamsters simply rejected the offer because it

thought that

the union was entitled to a better deal.

Thus, neither the timing nor the context of the 1996

wage increase

supports the conclusion that the offer was coercive and

therefore in

violation of § 8(a)(1) of the Act.

The record similarly does not support the Board's

conclusion that,

in offering the 1996 wage increase, Overnite discriminated

against the

union, in violation of § 8(a)(3). While § 8(a)(3) makes it

unlawful to

discourage union membership by discrimination "in regard to

. . . any

term or condition of employment," 29 U.S.C. § 158(a)(3), there

is no

duty to grant to union employees every benefit that is

granted to non-

union employees. Phelps Dodge Mining Co. v. NLRB, 22 F.3d

1493,

1500 (10th Cir. 1994); Chevron Oil Co. v. NLRB, 442 F.2d 1067,

1074 (5th Cir. 1971). Indeed, because the employer is

prohibited from

granting unilateral wage increases to represented

employees, see 29

U.S.C. § 158(a)(5), when the employer unilaterally grants a

wage

increase to nonunion employees, it must treat union

employees differ-

ently. Before granting the wage increase to union

employees, an

agreement must be reached with union representatives.

As wage increases cannot be granted to union employees

until

there is negotiation, the key issue in determining whether

there was

discrimination is whether the union employees were

foreclosed from

the opportunity to receive the wage increase through

negotiation.

Accord Kezi, Inc., 300 N.L.R.B. 594, 601 (1990).

Because the record clearly shows that the union

employees were

not foreclosed from receiving the 1996 wage increase, a §

8(a)(3) vio-

lation cannot be established. Overnite offered the

Teamsters the same

package that it granted to nonunion employees, and the

union was

given the opportunity to accept it. The Teamsters simply

rejected the

offer, asserting that union employees were entitled to the

wage

increase as an established past practice and that only the

productivity

responsibilities accompanying the wage increase were

subject to

negotiation. In essence, the union asserted that, unlike the

nonunion

employees, represented employees were entitled to the

increase with-

out the productivity responsibilities. The fact that

Overnite refused to

accept this counteroffer cannot form the basis for a §

8(a)(3) viola-

tion.

The Board has tried to avoid the necessary disparate

treatment of

nonunion and union employees by adopting the Teamsters'

position

that the wage increase was not, in fact, a change over prior

years. By

characterizing the wage increase as part of the established

compensa-

tion system, the Board avoided the problem that its position

would

have required Overnite unilaterally to grant a wage

increase. Instead,

the Board asserted that Overnite unilaterally took away

the wage

increase. But this assertion is inconsistent with the nature

of Over-

nite's practices with regard to wage increases.

The standard for whether a practice has become part of

the estab-

lished wage or compensation system is whether it would be

clearly

apparent to an objectively reasonable employer that the

"grant or

denial of a benefit, at the time the action is taken, conforms

to the sta-

tus quo." Southern Maryland Hosp. Ctr. v. NLRB, 801 F.2d

666, 669

(4th Cir. 1986) (requiring a finding that Christmas bonuses

were

given over a significant period of time before they could be

treated

as status quo). Compensation practices such as bonuses are

not con-

sidered a "term[ ] and condition[ ] of employment" unless

"they are

of such a fixed nature and have been paid over a sufficient

length of

time to have become a reasonable expectation." Phelps Dodge

Min-

ing, 22 F.3d at 1496 (citations and internal quotation marks

omitted).

While there is substantial evidence in this case to

support the con-

clusion that annual wage increases were paid over a

significant length

of time, the nature of the wage increases was not

sufficiently fixed

to become a "term or condition of employment." Where wage

increases are tied to unpredictable and discretionary

factors, such as

profitability, and the amounts do not follow a discernable

pattern,

they are not of "a fixed nature." Phelps Dodge Mining, 22

F.3d at

1496. For example, it has been held that eight payments to

various

employees over four years, where the payments were of

varying

amounts at varying time intervals, and where there were

complaints

about their unpredictability, did not amount to substantial

evidence

that the payments were fixed. Id. at 1497.

To the extent that a wage increase was expected,

Overnite's prac-

tice followed a pattern that the nature of the wage

increase was dic-

tated by profitability, the only constant being that each

year's wage

increase was different. For example, Overnite's

profitability was so

low in 1991 that no wage increase could be granted that

year. And

beginning in 1992, because of profitability concerns, the

wage

increase was granted in January instead of October. In

addition, prof-

itability affected Overnite's packaging of the wage increase.

For

example, the 1994 wage increase was granted as part of the

Perfor-

mance Incentive Plan. The 1996 wage increase simply

repeated this

model. Because of profitability concerns, Overnite proposed

include performance obligations with the wage increase.

While this

quid pro quo was initiated unilaterally with regard to

nonunion

employees, Overnite followed its § 8(a)(5) duty to bargain

collec-

tively with the Teamsters before initiating the proposal

with respect

to employees represented by the Teamsters.

If the Teamsters had accepted that offer, union

employees would

have received the same wage increase that nonunion

employees

received. The Teamsters, however, rejected the offer,

requesting

instead the wage increase without the attendant

performance obliga-

tions. By separating the wage increase from facilitating

conditions,

the Teamsters created an illusion, which the Board

accepted, that

something was being taken away. To agree with this

conclusion, how-

ever, would require us to hold that, simply by organizing,

union

employees became entitled to a better deal than nonunion

employees.

Because such a holding would unconscionably

mischaracterize the

nature of profitability-related wage increases, we cannot

conclude that

Overnite's practices violated § 8(a)(3) of the Act.

Finally, the record lacks substantial evidence to support

a § 8(a)(5)

violation. Section 8(a)(5) prohibits an employer from

bypassing the

union to bargain directly with employees. 29 U.S.C. §

158(a)(5);

Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 684 (1944);

Holly

Farms Corp. v. NLRB, 48 F.3d 1360, 1368 (4th Cir. 1995).

However,

an employer is allowed to talk with employees and to

communicate

its position to them. Americare Pine Lodge Nursing & Rehab

Ctr. v.

NLRB, 164 F.3d 867 (4th Cir. 1999). The limit of these

communica-

tions is offering a quid pro quo that is not before the union.

Id.

The employer's § 8(a)(5) duty is to present proposals to

the union

before communicating them to employees. See Americare, 164

F.3d

at 876-77 (holding that an employer could only distribute

its proposal

to union employees when the proposal was "properly before"

the

union). There is, however, no "rule requiring employers to

delay

informing [their] employees of a proposal until the union

has some

period of time to consider it. Communications to employees

that

inform them of their employer's bargaining position

constitute no vio-

lation." Id. (citation omitted). Publicizing the offer that is

before the

union does not erode the union's position as the bargaining

represen-

tative because as long as the presentation is not coercive,

such publi-

cation is a reasonable dissemination of information "that aids

employees in making informed decisions and promotes a

stable bar-

gaining environment." Id.

In this case, Overnite informed the Teamsters of its

proposed pro-

ductivity plan before informing the representative

employees of the

plan. The plan was sent to union representatives on

December 11,

1995, by overnight mail. When Overnite presented the plan

to its rep-

resentative employees on December 13, it was merely

exercising its

right to publicize its bargaining position. The record does

not suggest

that the proposal was coercive in any way. To the contrary,

repre-

sented employees were told that Overnite was negotiating

over the

increase with the union and that they should refer

feedback and ques-

tions to their union representatives. Those negotiations

were sched-

uled to begin around December 17, 1995.

Because we conclude that substantial evidence does not

support a

finding that the 1996 wage increase amounted to an unfair

labor prac-

tice, we refuse to enforce the Board's order insofar as it

redresses that

wage increase.

Finally, Overnite challenges the Board's finding that

certain ques-

tions asked by Overnite's attorneys to employees at

Overnite's Louis-

ville service center violated § 8(a)(1) of the Act.

In preparation for the hearing before the ALJ, Overnite's

attorneys

distributed an eight-page questionnaire to Overnite's

employees at the

Louisville service center. The ALJ concluded that the

following four

questions were coercive, in violation of § 8(a)(1):

(1) If you didn't sign the card or petition the first

time you

were asked, why did you sign it when you were asked

to do so again?

(2) Who did you give the card or petition to after

you

signed it?

(3) Did anyone from the Union tell you it was

important

for you to report to the Union or any employee any

problems you had with the Company since the Union

needed unfair labor practice charges to help them

over-

turn the election? If yes, who?

(4) Have you given a statement to anyone else

regarding

the election or the Company's or the Union's

conduct?

On review, the Board found that the first and third

questions were

unlawfully coercive and declined to pass on the other two.

In considering whether posing such questions to

employees was

coercive, we note that employers may ask their employees

about their

sentiments regarding the union. But the questions may

become coer-

cive if they have "a reasonable tendency in the totality of

the circum-

stances to intimidate." Standard-Coosa-Thatcher Carpet Yarn

Div.,

Inc. v. NLRB, 691 F.2d 1133, 1137 (4th Cir. 1982) (internal

quotation

marks and citations omitted). "The gravamen of the violation

is intim-

idation tending to discourage union activities." NLRB v. P.B.

& S.

Chem. Company, 567 F.2d 1263, 1267 (4th Cir. 1977).

To determine whether employers' questions put to

employees are

coercive, we consider whether the employer followed

specific safe-

guards. First, "the employer must communicate to the

employee the

purpose of the questioning, assure him that no reprisal will

take place,

and obtain his participation on a voluntary basis; [second,]

the ques-

tioning must occur in a context free from employer hostility

to union

organization and must not be itself coercive in nature; and

[third,] the

questions must not exceed the necessities of the legitimate

purpose by

prying into other union matters, eliciting information

concerning an

employee's subjective state of mind, or otherwise

interfering with the

statutory rights of employees." Standard-Coosa-Thatcher,

691 F.2d at

1140 n.8 (quoting Jonnie's Poultry Co., 146 N.L.R.B. 770, 775

(1964)).

With respect to the first question at issue, the ALJ found

that the

employer was improperly inquiring into the employee's

subjective

reasoning. While this inference is possible, it is likely that

the ques-

tion actually sought information about the union's

activities, and not

merely the employee's subjective state of mind. Because of

this

ambiguity, the ALJ should have considered the other

safeguards

before reaching its conclusion that the question was

coercive.

With respect to the second, third, and fourth questions,

the ALJ

found that they exceeded Overnite's legitimate purposes.

We do not

agree. Overnite had the right to determine the context of

union

recruitment, and its questions were geared toward

determining what

organizers did to encourage employees to sign cards. Even if

we agree

that the questions might be construed as overly broad, the

ambiguity

precluded the ALJ from reaching the conclusion that the

questions

were in fact coercive without considering the other

safeguards.

Accordingly, with respect to the Board's findings on the

questions

posed by Overnite's attorneys, we remand for further

consideration by

the Board should the Board find it necessary and

appropriate to con-

sider them in the light of our other rulings.

III

This brings us to the principal argument raised by

Overnite in its

petition for review — whether the Board abused its

discretion in

bypassing the traditional remedy of ordering new elections

by order-

ing Overnite to bargain with the Teamsters at the four

locations at

Bridgeton, Norfolk, Louisville, and Lawrenceville. The

Board con-

cluded that fair elections could not be conducted because

the unfair

labor practices were so severe and were carried out by such

high-

ranking officers of Overnite that its employees would

remember the

practices.

Overnite advances four reasons why the Board's

conclusion is

unsupportable. First, it points out that it settled most of

the unfair

labor practices in July 1995 and took "extraordinary steps

to avoid

future unfair labor practices." Second, it notes that

turnover at the four

sites was extensive, ranging, as of early 1999, from 29% to

40% of

the employees. Third, it points out that Overnite's

management,

which was involved in the unfair labor practices, had all

left their

positions. And fourth, it asserts that the four-to-five-year

lapse of time

since the unfair labor practices occurred dissipated their

harmful

effect. In sum, Overnite argues that changes in

circumstances follow-

ing the unfair labor practices left little reason to

conclude that fair and

accurate reelections could not take place.

In response, the Board pointed to the 1996 wage increase

as evi-

dence of continuing unfair labor practices by Overnite

following the

July 1995 settlement. As we have now found the Board's

position on

that issue unsupported, it cannot support the bargaining

orders. The

Board also posited that employee turnover is not a fact

that is consid-

ered under Board precedent. But even when turnover is

considered,

the Board concluded that the lore of the shop carries on

the adverse

effect of past unfair labor practices. Finally, the Board

declared that

it generally does not consider the passage of time to be

relevant.

Rather, it considers unfair labor practices and the remedies

for them

at the time they were committed — in this case in late 1994

and early

1995. In any event, the Board concluded summarily that the

passage

of four to five years after the unfair labor practices was

not suffi-

ciently long to conclude that Gissel orders were

unwarranted.

The background facts of the changed circumstances in

this case are

not disputed. At the four relevant service centers, the

union obtained

signed card majorities before the elections from 27

employees at

Bridgeton (from a unit of 49); 62 at Norfolk (from a unit of

91); 117

at Louisville (from a unit of 174); and 45 at Lawrenceville

(from a

unit of 86). At each location the union lost the election,

mostly by a

small margin.

Following the elections at these and other sites, the

Teamsters com-

plained of unfair labor practices, and the General Counsel

filed more

than 20 complaints. Most of the complaints were settled on

July 29,

1995. And except for the 1996 wage increase, which we have

over-

turned as an unfair labor practice, there was virtually no

evidence of

unfair labor practices committed after the settlement.2 The

settlement

did leave open for adjudication the Teamsters' request for

Gissel

orders at Bridgeton, Norfolk, Louisville, and

Lawrenceville, and with

respect to these four locations, the ALJ issued his findings

of fact and

recommendations for the issuance of Gissel orders on April

10, 1998,

and the Board issued the Gissel orders on November 10,

1999.

In the interim, employee turnover was concededly

significant. As

of early 1999, there had been a 40% employee turnover at

Bridgeton;

32% at Norfolk; 29% at Louisville; and 36% at

Lawrenceville. In

addition, virtually all of the Overnite management involved

in the

unfair labor practices had left or been replaced. Douglas,

Overnite's

president, left in February 1997; Edwards, one of the

persons to

whom threats about the Chicago experience were

attributed, left in

December 1995; and the managers of all four service

centers had left

at various times.

In the context of this evidence, we must determine

whether fair

reelections could have been conducted five years later

under appropri-

ate supervision by the Board, or, stated in the language of

Gissel,

whether the "coercive effects" of the unfair labor

practices had been

eliminated so that a "fair and reliable election" could be

held. Gissel,

395 U.S. at 614.

The applicable Gissel principles have been repeatedly

articulated in

this circuit. First, we have noted that it is the strong

preference of our

national labor policy not to impose collective bargaining

representa-

tives on employees except when they have, by a majority

vote,

elected to be so represented. See NLRB v. Apple Tree

Chevrolet, Inc.,

671 F.2d 838, 840 (4th Cir. 1982) ("Apple Tree II"). Because "an

____________________________________________________________

The Board also found that lawyers' questioning of

employees in prep-

aration of Overnite's defense in Louisville committed unfair

labor prac-

tices in posing coercive questions to the employees. But we

have

concluded that these allegations also were unsupported by

the record.

election, not a bargaining order, remains the traditional, as

well as the

preferred, method for determining the bargaining agent for

employ-

ees," NLRB v. Apple Tree Chevrolet, Inc., 608 F.2d 988, 996

(4th Cir.

1991) ("Apple Tree I"), "the extraordinary and drastic remedy

forced bargaining pursuant to [Gissel] is reserved for only

the most

unusual cases." Be-Lo Stores v. NLRB, 126 F.3d 268, 273 (4th

Cir.

1997) (internal quotation marks and citations omitted).

Gissel orders

are available only when traditional remedies are

insufficient to make

possible a "fair and reliable election." Gissel, 395 U.S. at

614. Sec-

ond, when imposing Gissel orders, we require "specific" and

"de-

tailed" findings. Apple Tree II, 671 F.2d at 840.

To satisfy the requirements for imposing a Category II

type of Gis-

sel order — the type involved in this case3 — the Board

must make

detailed findings specifically supporting the facts that (1)

the union

enjoyed a preelection majority in the relevant unit; (2) the

employer

committed an unfair labor practice; (3) the unfair labor

practice

caused the union's majority status to be dissipated; (4) the

possibility

of conducting a fair reelection would be slight; and (5) the

employ-

ees' preelection sentiments would be better protected by

a bargaining

order than by a new election. In turn, to find that the

possibility of

conducting a fair election would be slight and that

employees' pre-

violation sentiments would be better protected by a

bargaining order,

the Board must specifically consider and make findings

about (a) the

likelihood of recurring misconduct; (b) the residual impact

of unfair

labor practices, considering whether that effect has been

or will be

dissipated by the passage of time; and (c) the efficacy of

ordinary

remedies. See generally Gissel, 395 U.S. at 613-14; Be-Lo, 126

F.3d

at 282; Apple Tree I, 608 F.2d at 696-97.

____________________________________________________________

The Supreme Court has recognized a Category I type of

case that it

characterized as an "exceptional" case, in which bargaining

orders may

be imposed without inquiry into a union's preelection

majority status.

This Category I case is "marked by `outrageous' and

`pervasive' unfair

labor practices," where the coercive nature of the illegal

practices "can-

not be eliminated by the application of traditional

remedies." Gissel, 395

U.S. at 613-14. The presumptive impossibility of having a "fair

and reli-

able" election is the essence of this Category I type of case,

which nei-

ther the Board nor the parties assert is the situation

presented in this case.

In this case, the Board properly considered the union's

preelection

majority status, the employer's unfair labor practices, and

the causal

relationship between those practices and the dissipation of

the union's

majority. The Board failed, however, to direct us to

evidence that a

new fair election could not be conducted in the

circumstances pre-

sented.

While the Board purported to address the prospects for

a new elec-

tion, it spoke only in a conclusory manner, without directing

the court

to any factually based reason why new elections could not

be fair in

this case. The Board stated in a conclusory fashion, "that

the holding

of fair elections in the future would be unlikely and that

the employ-

ees' wishes are better gauged by old card majority than by

new elec-

tion." Overnite Transp., 329 N.L.R.B. at 3 (internal quotations

and

alterations omitted). While the Board did examine the

likelihood of

reoccurrence of the unfair labor practices, its assessment

rested almost

entirely on its conclusion that the January 1996 wage

increase vio-

lated § 8(a) of the Act. But we have already concluded that

the Janu-

ary 1996 wage increase did not violate the Act. And there

was no

other indication that the unfair labor practices settled in

July 1995

would reoccur.

Moreover, other factors, which would suggest that a

fair election

could be held, were improperly ignored by the Board as

irrelevant.

The Board indicated that it generally does not evaluate the

passage of

time between the unfair labor practices and the issuance of

an order

to be relevant. More importantly, the Board has stated that

it does not

consider employee turnover that might occur during any

such passage

of time:

The Board traditionally does not consider turnover

among

bargaining unit employees in determining whether a

bar-

gaining order is appropriate, but rather assesses a

situation

at the time the unfair labor practices were

committed.

If the unfair labor practices are severe, the Board relies on

the "lore

of the shop" to conclude that past practices continue to

repress

employee sentiment despite turnover.

By so limiting its consideration of the events following

the unfair

labor practices, the Board cannot make the necessary

detailed findings

about the possibility of conducting a fair election years

after the

unfair labor practices occurred. Moreover, and perhaps

more impor-

tantly, in taking this position, the Board refuses to follow

the clear

and established precedent of this Circuit that both the

passage of time

and employee turnover are highly relevant matters to be

considered.

On the passage of time we have stated:

It strains credulity to believe that [a company's]

unfair labor

practices, such as they were, had such long lasting

effects

that a fair rerun election could not have been held

four years

later, much less today, some six years after the

original vio-

lations occurred.

Be-Lo, 126 F.3d at 282. We have found that even more telling

than

the passage of time is the turnover of

employees:"`Significant

employee turnover through normal attrition' is highly

relevant to

determining the necessity of a bargaining order and well

`may make

a bargaining order inappropriate.'" Id. (quoting NLRB v. So-Lo

Foods,

985 F.2d 123, 128-29 (4th Cir. 1992)). As we explained:

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 com-

pany's unfair labor practices, but the issuance of a

bargain-

ing order in the face of significant employee

turnover risks

unjustly binding new employees to the choices made

by for-

mer ones.

Be-Lo, 126 F.3d at 282-83 (internal quotation marks and

citations omit-

ted).4

____________________________________________________________

The Board concluded that even though a "significant

number of

employees" had left Overnite's employ since the unfair

labor practices,

the practices nevertheless "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." Overnite Transp., 329 N.L.R.B. at 5

(quoting

Bandag, Inc. v. NLRB, 583 F.2d 765, 772 (5th Cir. 1978)). But

we have

rejected this reasoning as speculative. "Absent substantial

evidentiary

support that the effects of unlawful practices have in fact

continued to be

The evidence in the record here indicates a substantial

passage of

time and employee turnover. At the four locations at issue,

the turn-

over, as of early 1999, was anywhere from 29% to 40%. In

addition,

most of the executives involved in the unfair labor

practices had left.

The period of time elapsing between the unfair labor

practices and the

Board's order was almost five years and by now would be

over six

years. Moreover, the unfair labor practices which were

supported by

substantial evidence were settled in July 1995. After the

settlement,

Overnite took steps to avoid future unfair labor practices,

which the

record indicates were effective.

It is also telling that fair reelections were found to

have been con-

ducted at several other sites which were similarly

influenced by Over-

nite's unfair labor practices. For instance, at Memphis,

Toledo, and

Moonachie, where the same national and local unfair labor

practices

occurred, the General Counsel and the Teamsters withdrew

their

request for Gissel orders and proceeded with new

elections. The

Teamsters won the elections at Toledo and Memphis and lost

the

election at Moonachie. All of those elections were

certified as free

and fair.5

In sum, the Board did not and could not, on the evidence

in the

record, fulfill the requirements for the scrupulous

specificity

demanded by our precedents for imposing Gissel orders.

Indeed, if its

analysis had been complete, it would have had to come to

terms with

the fact that a fair election rerun was available at each of

the four

locations in question. The approval of such orders without

satisfying

____________________________________________________________

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." Be-Lo, 126 F.3d at

283. We

have noted that this type of speculation "eviscerate[s] one

of the most

important of the heightened requirements for a Gissel

category II manda-

tory bargaining order." Id.

In Cincinnati, where the General Counsel reserved the

right to seek

a Gissel order, the Teamsters agreed to proceed to a new

election, which

it lost. After the Teamsters objected to that election based

on the January

1996 productivity package, a third election was conducted

which the

Teamsters won. That election too was certified by the

Board.

ourselves that new elections could not remedy the unfair

labor prac-

tices found by the Board would undermine labor law's

fundamental

policy of democratic representation. For these reasons, we

refuse to

enforce the Gissel orders at these locations.

In sum, we conclude that the Board's findings that

Overnite com-

mitted unfair labor practices in implementing its March

1995 wage

increase and in conducting its election campaigns at

Bridgeton, Nor-

folk, Louisville, and Lawrenceville were supported by

substantial evi-

dence. We conclude that the Board's finding that Overnite

committed

unfair labor practices in implementing its January 1996 wage

increase

was not supported by substantial evidence. And we remand

the find-

ings with respect to the attorney questions posed to

employees at the

Louisville service center for further proceedings.

In addition, we conclude that the requirements for

imposing Gissel

orders at the four locations were not found and could not

be found on

this record. Therefore, we refuse to enforce any Gissel

orders at

Bridgeton, Norfolk, Louisville, and Lawrenceville.

Accordingly, we grant in part and deny in part Overnite's

petition

for review; we deny the Board's cross-application for

enforcement

insofar as it is inconsistent with this opinion; and we remand

for new

elections at the four sites and for entry of such other

order as is appro-

priate but not inconsistent with this opinion.

IT IS SO ORDERED.

GREGORY, Circuit Judge, concurring in part and dissenting in

part:

As for the National Labor Relations Board's findings of

unfair

labor practices, I agree with the majority in some respects,

and with

the dissent in others. I also concur with the majority that

the record

does not support the issuance of bargaining orders. I

respectfully dis-

sent, however, from the majority's refusal to remand the

case to the

Board for reconsideration.

I believe substantial evidence supports the Board's

findings that

Overnite's conduct at the four service centers and its March

1995 dis-

criminatory wage increase violated § 8(a)(1) of the National

Labor

Relations Act. See NLRB v. Exchange Parts Co., 375 U.S. 405,

409

(1964). In this respect, I concur with all of my good

colleagues. I also

concur with the majority opinion insofar as it holds that

Overnite's

presentation of the wage increase in December 1995 to its

employees

did not violate §§ 8(a)(1) or 8(a)(5) of the Act. See Americare

Pine

Lodge Nursing & Rehab. Ctr. v. NLRB, 164 F.3d 867, 875-76

(4th

Cir. 1999).

I agree with my dissenting colleagues, however, that

Overnite com-

mitted unfair labor practices in granting the 1996 wage

increase. First,

as Judge King indicates, an employer violates §§ 8(a)(1) and

8(a)(5)

of the Act when it unilaterally changes the terms or

conditions of

employment under negotiation. NLRB v. Katz, 369 U.S. 736,

743

(1962). Whether a yearly wage increase constitutes a term

or condi-

tion of employment turns on whether the increase has

become a "rea-

sonable expectation" of the employees. Phelps Dodge Mining

Co. v.

NLRB, 22 F.3d 1493, 1496 (10th Cir. 1994). There is

substantial evi-

dence in the record to support the Board's finding that the

wage

increase had become a reasonable expectation and that

Overnite

therefore changed the terms and conditions of employment

of the rep-

resented employees by not extending the 1996 wage increase

to them.

Overnite Transp. Co., 329 N.L.R.B. 1, 106-09 (Nov. 10, 1999).

That

Overnite tied the wage increase to a productivity package

does not

undermine the Board's conclusion. As the ALJ found,

Overnite's

practice of granting yearly wage increases was largely

driven by the

need to maintain competitive wages. Id. The company's desire

make other productivity improvements—knowing that these

changes

would increase discontent among its employees—merely

reinforced

the need to continue the practice; it did not fundamentally

alter the

nature of the practice.

Second, Overnite violated §§ 8(a)(1) and 8(a)(3) of the Act

by dis-

criminating in regard to the terms and conditions of

employment in

order to discourage union membership. There is substantial

evidence

in the record to support the Board's finding that Overnite's

discrimi-

natory 1996 wage increase was unlawfully motivated and

therefore in

violation of the Act. Overnite, 329 N.L.R.B. at 109-10.

The majority and the dissent also disagree over whether

two of the

attorneys' questions were coercive and therefore in

violation of

§ 8(a)(1) of the Act. I agree with the majority that the first

question

was not coercive and with the dissent that the second

question was

coercive. The first question asked:

If you didn't sign the card or petition the first time

you were

asked, why did you sign it when you were asked to do

again?

Overnite, 329 N.L.R.B. at 62. We have previously held that

"[e]mployers are free to ask employees about their

sentiments regard-

ing a union provided the questioning is not coercive."

Standard-

Coosa-Thatcher Carpet Yarn Div., Inc. v. NLRB, 691 F.2d 1133,

1137

(4th Cir. 1982). This question was not particularly coercive

on its

face, and the interviewees were given multiple assurances

that there

would be no retaliation. Like the majority, I would hold

that the

Board's finding that this question was coercive is not

supported by

substantial evidence. See Johnnie's Poultry Co., 146 N.L.R.B.

770,

775 (1964); NLRB v. P.B. & S. Chem. Co., 567 F.2d 1263, 1267

(4th

Cir. 1977).

Unlike the first, the second question was coercive. The

second

question asked:

Did anyone from the Union tell you it was important

for you

to report to the Union or any employee any

problems you

had with the Company since the Union needed unfair

labor

practice charges to help them overturn the

election? If so,

who?

Overnite, 329 N.L.R.B. at 62. As Judge King points out, this

question

exceeds Overnite's "legitimate purposes for questioning

employees."

The question was particularly coercive because it pried into

the

employees' participation in organizing activities — protected

conduct

under the Act. 29 U.S.C. § 157; Overnite, 329 N.L.R.B. at 113.

Accordingly, it was unlawful.

Next, I think there is substantial evidence in the record

to support

the Board's finding that Overnite violated § 8(a)(1) of the

Act by

"granting to unrepresented employees the overtime portion

of the pro-

ductivity package in order to dissuade them from seeking

union repre-

sentation." Overnite, 329 N.L.R.B. at 5. Neither the majority

nor the

dissent specifically addresses the overtime benefit. The

Board

affirmed the finding of the ALJ, who stated:

Overtime was an issue that was widespread in the

campaign,

and [Overnite's] offer was an obvious response to

the com-

plaints of the employees and, in fact, could be

anticipated

from many of Douglas's conversations with

employees

early in 1995. It would have been difficult for him

to renege

on his promises without further erosion of

employee sup-

port.

Overnite, 329 N.L.R.B. at 111. Despite Overnite's contention

that it

intended to shorten hours and therefore rarely pay

overtime, the over-

time provision was a new benefit in the form of premium pay.

the unlawful 1995 wage increase, the grant of overtime pay

violated

§ 8(a)(1) of the Act because it was intended to discourage

union orga-

nization. Id.; see Exchange Parts, 375 U.S. at 409; J.P. Stevens

& Co.

v. NLRB, 461 F.2d 490, 492 (4th Cir. 1972).

I agree with the majority that we cannot enforce the

bargaining

orders on the current record, but I dissent from the

majority's decision

not to remand to the Board for reconsideration of its

bargaining

orders. The Board may very well reach the same conclusion

after fur-

ther consideration, and we should allow for the possibility

that bar-

gaining orders might yet be warranted.

We grant considerable deference to the Board's choice of

remedy

for unfair labor practices. Virginia Elec. & Power Co. v.

NLRB, 319

U.S. 533, 540 (1943); NLRB v. Williams Enters. Inc., 50 F.3d

1280,

1289 (4th Cir. 1995); NLRB v. So-Lo Foods, Inc., 985 F.2d 123,

126

(4th Cir. 1992). Judge King correctly indicates that "the

Board's

`choice of remedy must . . . be given special respect by

reviewing

courts' considering the Board's `fund of knowledge and

expertise all

its own.'" So-Lo Foods, 985 F.2d at 126 (quoting NLRB v. Gissel

Packing Co., 395 U.S. 575, 612 n.32 (1969)). This deference,

how-

ever, is conditional. In order for us to perform our proper

role in

reviewing agency action, the Board must make its reasoning

clear on

the record, and that reasoning must be consistent with our

statements

of the law. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 899 n.9

(1984);

NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265-67 (1975). Here,

addition to the errors noted above, and for reasons

identified by the

majority, the Board has failed to engage in the reasoned

decision-

making process we demand for issuance of Gissel bargaining

orders.

NLRB v. Apple Tree Chevrolet, Inc., 671 F.2d 838, 840 (4th

Cir.

1982). Specifically, the Board has not adequately

considered the dis-

sipation of the effects of the unlawful practices in

determining

whether fair elections are now possible. The Board failed

to fully

examine the mitigating effects of employee and management

turnover

and the passage of time. Further, the Board inappropriately

relied on

conclusory statements such as "the lore of the shop,"

Overnite, 329

N.L.R.B. at 5 (quoting Bandag, Inc. v. NLRB, 583 F.2d 765, 772

(5th

Cir. 1978)), to explain why the effects of prior illegalities

had not dis-

sipated. We would be forsaking our responsibilities if we

upheld bar-

gaining orders based on reasoning such as this.

I think the majority errs, however, in refusing to remand

for recon-

sideration. When an agency fails to support its findings with

adequate

reasoning, the agency is typically permitted to supplement

its state-

ment of reasons. 3 Kenneth C. Davis & Richard J. Pierce, Jr.,

Admin-

istrative Law Treatise § 18.1 (3d ed. 1994). Similarly, when

agency acts based on a misunderstanding of the law, the

agency often

may support the same action after considering the correct

principles

of law. Id. When it comes to fashioning a remedy for unfair

labor

practices, the Board is particularly entitled to this

opportunity. The

Supreme Court has made it clear that we should not

substitute our

judgment for that of the Board in choosing an appropriate

remedy:

Because the relation of remedy to policy is

peculiarly a mat-

ter for administrative competence, courts must not

enter the

allowable area of the Board's discretion and must

guard

against the danger of sliding unconsciously from

the narrow

confines of law into the more spacious domain of

policy.

Sure-Tan, 467 U.S. at 899 (quoting Phelps Dodge Corp. v.

NLRB,

313 U.S. 177, 194 (1941)). If we cannot uphold the Board's

initial

choice of remedy, the proper disposition in most cases is

remand to

the Board for reconsideration. "Such action `best respects

the con-

gressional scheme investing the Board and not the courts

with broad

powers to fashion remedies that will effectuate national

labor pol-

icy.'" Sure-Tan, 467 U.S. at 905 (quoting NLRB v. Food Store

Employees, 417 U.S. 1, 10 (1974)).

Indeed, remand for reconsideration was the result in

Gissel itself.

After holding that the Board failed to support its issuance

of a Cate-

gory II bargaining order with record findings consistent

with the rele-

vant legal standards, the Court remanded the case to the

Board for

proper findings. Id. at 616. In doing so, the Court stated

that it had

been inappropriate for the court of appeals—this very

circuit—to

make contrary findings. Id. Since Gissel, we have recognized

the need

to remand for reconsideration when the Board has exceeded

the scope

of its remedial powers. See Ultrasystems Western

Constructors, Inc.

v. NLRB, 18 F.3d 251, 259 (4th Cir. 1994) ("[W]hen selection of

the

appropriate remedy is at issue, as it is here, the appropriate

course to

follow is to remand the case to the Board to fashion the

remedy of

its choosing."); NLRB v. D&D Enterprises, Inc., 125 F.3d 200,

209

(4th Cir. 1997) (remanding to Board for reconsideration of

whether

prior unfair labor practices continued to influence

employees' support

of union for purposes of decertification). See also

Baltimore Sun Co.

v. NLRB, 257 F.3d 419, 432 (4th Cir. 2001) (King, J.,

dissenting).

The majority demonstrates that bargaining orders are

not support-

able on this record, but does not foreclose that there may

be "substan-

tial evidentiary support [not yet made part of the record]

that the

effects of unlawful practices have in fact continued to be

felt in the

workplace," Be-Lo Stores v. NLRB, 126 F.3d 268, 283 (4th Cir.

1997). If given the chance, the Board might consider a

number of fac-

tors on remand. For example, the particular structure of

the company

may play a part in whether the effects lingered. Although

it seems

somewhat counterintuitive for a trucking company like

Overnite,

employee turnover and the passage of time may not have had

the

effect we typically presume. The record is simply

inadequate for us

to make a judgment. Additionally, Overnite's unlawful

conduct may

have actually caused some of the turnover. If that is so, the

Board

should be allowed to consider that fact in deciding

whether to reissue

a bargaining order. Moreover, even if the majority is correct

that

Overnite did not commit continuing violations after the

elections, the

company's later conduct (though lawful) may have had the

effect of

reinforcing the earlier unlawful acts. The Board should be

allowed to

consider this as well. We should hesitate before concluding

that fur-

ther input from the Board would be unhelpful.

I believe we should allow the Board to look before we

leap.

Accordingly, we should grant in part and deny in part

Overnite's peti-

tion for review, deny the Board's cross-petition for

enforcement, and

remand to the Board so that it may supplement its reasoning

and

apply the appropriate legal standards. We should not take

the extra

step of limiting the Board's choice of remedies to new

elections.

I respectfully concur in part and dissent in part.

Volume 2 of 2

____________________________________________________________

KING, Circuit Judge, dissenting:

Since 1935, the National Labor Relations Board has been

accorded

the authority and responsibility for resolving our nation's

labor dis-

putes and remedying the effects of unfair labor practices,

whether

engaged in by corporate management or by labor unions. A

necessary

corollary to the Board's authority has been that our

judicial branch of

Government does not substitute its judgment for that of

the Board.

The Board, rather than the courts, is the labor expert, and

the judiciary

is obliged to defer to its expertise, monitoring the Board

solely to

ensure that it does not exceed its authority.

In approaching this long-standing and bitter dispute

between Over-

nite Transportation Company and the Teamsters Union, the

Board has

applied its expertise, and it has concluded that Overnite

engaged in

a litany of unfair labor practices. It has also taken

appropriate action,

pursuant to its statutory authority and the Supreme Court's

landmark

decision in NLRB v. Gissel Packing Co., Inc., 395 U.S. 575

(1969),

ordering Overnite to bargain with the Union at four of its

service cen-

ters. In reviewing this dispute, the en banc majority has

concluded,

and I agree, that substantial evidence supports the Board's

findings

that Overnite engaged in unfair labor practices in its

discriminatory

March 1995 wage increase, and that it also unlawfully

interfered with

organizing campaigns at the Lawrenceville, Louisville,

Norfolk, and

Bridgeton service centers. Regrettably, however, in its

consideration

of the other unfair labor practices found by the Board, and

in its

review of the Board's chosen remedy of Gissel bargaining

orders, the

majority has substituted its judgment for the expertise of

the Board.

In so doing, it has ignored controlling legal principles: we

must defer

to the Board on findings of fact supported by substantial

evidence

and, in the absence of an abuse of discretion, we must

enforce the

Board's chosen remedy for unfair labor practices. Because

I strongly

believe the Board's decisions to be appropriate under the

law and on

these facts, I would grant enforcement of its bargaining

orders, and

I respectfully dissent.1

____________________________________________________________

Because I would uphold the Board's findings on the

unfair labor prac-

tices engaged in by Overnite, and because I would enforce

each of its

Gissel bargaining orders, I adhere to the views expressed in

the opinion

of the panel majority in this appeal. Overnite Transp. Co. v.

NLRB, 240

F.3d 325 (4th Cir. 2001).

As the majority properly observes, the Board's findings

of fact are

conclusive so long as they are "supported by substantial

evidence on

the record considered as a whole." 29 U.S.C. § 160(e); see

also Uni-

versal Camera Corp. v. NLRB, 340 U.S. 474, 490-91 (1951).

Indeed,

if an ALJ's factual findings, as adopted by the Board, are

supported

by substantial evidence, "our inquiry ends . . . even though

we might

have reached a different result had we heard the evidence

in the first

instance." NLRB v. Daniel Constr. Co., 731 F.2d 191, 193 (4th

Cir.

1984) (citation omitted). Our judiciary has consistently

recognized

that the Board must be accorded broad discretion in its

crafting of

remedies to resolve labor disputes. Accordingly, the Board's

chosen

remedy must be enforced by the judiciary "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."

NLRB v.

Williams Enters., Inc., 50 F.3d 1280, 1289 (4th Cir. 1995).

In my considered opinion, the en banc majority has

inappropriately

substituted its judgment for that of the Board in three

crucial respects.

In contravention of the Board's exhaustive findings of fact,

the major-

ity now incorrectly determines that:

! Overnite did not commit unfair labor practices

when it

instituted the discriminatory January 1996 wage

increase.

! Overnite's coercive questioning of employees at

its Lou-

isville service center did not violate the Act.

! Overnite's litany of severe and pervasive unfair

labor

practices does not support the Board's chosen

remedy of

Gissel bargaining orders.

In order to support these determinations, the majority has

erroneously

re-weighed the evidence relating to each of these important

issues.

First, there is more than substantial evidence to support

the Board's

findings, in connection with Overnite's discriminatory

January 1996

wage increase, that Overnite bypassed the Union,

discriminated

against union employees, and publicized its unlawful

conduct. Sec-

ond, there is also ample evidence to support the Board's

finding that

Overnite's coercive questioning of employees at Louisville

exceeded

any legitimate purpose. Finally, and most significantly, the

evidence

overwhelmingly demonstrates that the Board did not abuse

its discre-

tion in its issuance of Gissel bargaining orders to remedy

Overnite's

anti-union conduct at four of its service centers.

The majority sees the Gissel bargaining orders as

undermined by

mitigating factors, including the lack of continuing

misconduct, the

employee turnover rate, the passage of time, and the

success of the

Union in elections at other service centers. The Board,

however, care-

fully considered each of these factors, and it ruled against

Overnite.

Its Decision and Order should be enforced. Overnite, 329

N.L.R.B. 1

(Nov. 10, 1999).

I will address these three issues in turn.

II.

My first disagreement with the en banc majority relates

to its con-

clusion that Overnite's discriminatory January 1996 wage

increase

did not violate the Act. Although the majority

acknowledges that

Overnite committed unfair labor practices in its

discriminatory March

1995 wage increase and in its pervasive "carrot and stick"

campaigns

at the Lawrenceville, Louisville, Norfolk, and Bridgeton

service cen-

ters, it erroneously concludes that Overnite's unfair labor

practices

ceased in mid-1995. I am compelled to disagree: there is more

than

substantial evidence to support the Board's finding that the

discrimi-

natory January 1996 wage increase violated three

subsections of the

Act, i.e., §§ 8(a)(1), (3), and (5).2 Indeed, the detailed findings

made

____________________________________________________________

Section 8 of the Act sets forth the statutory

definitions of the unfair

labor practices in this case, providing in pertinent part as

follows:

It shall be an unfair labor practice for an

employer—

(1) to interfere with, restrain, or coerce employees

in the

exercise of the rights [to engage in union activities]

. . .;

...

by the ALJ and the Board3 reflect that: (1) Overnite

bypassed the

Union by giving it only one day to consider the proposed

January

1996 wage increase and the related productivity agreement

before

making its presentation directly to employees; (2) Overnite

made a

unilateral change to its employees' terms and conditions of

employ-

ment by awarding the January 1996 wage increase to

non-union

employees only; and (3) Overnite thereafter distributed

anti-union

campaign fliers boasting that its union employees were being

paid

less than its non-union employees.

In December 1995, Overnite offered its employees a

fifty-cent-per-

hour wage increase. This wage increase, however, was

conditioned on

acceptance by the Union of the related productivity

agreement

whereby Overnite would have the right, inter alia, to

"`[s]et, change

and cancel days and hours of work' for all job

classifications; and,

within certain limitations, to `[s]et . . . schedules, routes,

and running

times.'" Overnite, 329 N.L.R.B. at 57. Overnite gave the Union

virtu-

ally no notice of the proposed productivity agreement, nor

any time

to consider it. In this connection, the ALJ found that

Overnite had

effectively bypassed the Union, as follows:

____________________________________________________________

(3) by discrimination in regard to hire or tenure of

employ-

ment or any term or condition of employment to

encourage

or discourage membership in any labor organization

. . .;

...

(5) to refuse to bargain collectively with the

representa-

tives of his employees . . . .

29 U.S.C. § 158.

In this opinion, I generally refer to the findings of the

Board and the

ALJ interchangeably, except as otherwise noted, because the

Board, in

its Decision and Order of November 10, 1999, affirmed the

findings

made by the ALJ in his Decision of April 10, 1998. See

Overnite, 329

N.L.R.B. at 1 ("The Board has . . . decided to affirm the [ALJ's]

rulings,

findings, and conclusions as modified . . . .).

What Overnite did here was to send by overnight

mail its

productivity agreement to the Union, wait 1 day, and

then

make its presentation to the employees directly, 2

days

before negotiations were to or did resume. That

bypasses the

Union in the same way as if [Overnite] never made any

pro-

posal at all to the Union, and [Overnite] certainly

gave the

Union no adequate opportunity to digest the

proposal or to

respond or to begin discussion.

Id. at 58 (emphasis added). Indeed, Overnite had been

planning to

implement its productivity changes for at least two months

before it

notified the Union of the proposal, at the last minute, by

overnight

mail. Overnite's clear goal was to circumvent the Union, and

the

company admitted as much following presentation of the

productivity

package in Atlanta. Mr. Schager, Overnite's Atlanta manager,

explained to an employee that "[w]e don't, we won't notify

the Union

any more on anything. That's the whole point of this on the

produc-

tivity package and so forth. We now will make changes as we

see 'em

. . . ." Id. at 58 n.95. Based on its thorough review of the

evidence,

the ALJ found that Overnite had "concluded that it would

be `much

more effective' to make the productivity package palatable

by dealing

directly with the unionized employees rather than having to

deal only

with their bargaining representatives; and so the conscious

effort was

made to bypass the national committee." Id.

This anti-union activity of Overnite constituted a clear

violation of

§§ 8(a)(1) and (5) of the Act, which prohibit an employer from

bar-

gaining directly with employees that are represented by a

union. See

Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 684 (1944)

(explaining that employer violates § 8(a)(1) of the Act when

it "ignor-

[es] the union as the employees' exclusive bargaining

representative,

by negotiating with its employees concerning wages at a time

when

wage negotiations with the union were pending, and by

inducing its

employees to abandon the union by promising them higher

wages");

see also Holly Farms Corp. v. NLRB, 48 F.3d 1360, 1368 (4th

Cir.

1995). The Board's finding of this unfair labor practice, i.e.,

Overnite

bypassing the Union and seeking to bargain directly with its

repre-

sented employees, is supported by more than substantial

evidence. In

rejecting it, the majority has simply substituted its

judgment for that

of the Board.

Ultimately, the Union's national committee rejected the

proposed

productivity agreement and Overnite, in January 1996,

unilaterally

granted the fifty-cent-per-hour wage increase to its

non-union

employees only. The Supreme Court has long recognized

that an

employer violates §§ 8(a)(1) and (5) of the Act when it makes

unilat-

eral changes to established terms or conditions of

employment. NLRB

v. Katz, 369 U.S. 736, 743 (1962). Accordingly, when an

employer,

by its promise or course of conduct, has made an annual wage

increase part of an established wage or compensation

system, it can-

not change or terminate the benefit unilaterally during the

period of

collective bargaining. See First Nat'l Maint. Corp. v. NLRB,

452 U.S.

666, 674-75 (1981); Dorsey Trailers, Inc. v. NLRB, 233 F.3d

831, 838

(4th Cir. 2000).

In this connection, there is more than substantial

evidence to sup-

port the Board's finding that, by not providing the January

1996 wage

increase to its union employees, Overnite changed the terms

and con-

ditions of their employment and hence violated the Act. As

the ALJ

explained, Overnite had theretofore consistently provided

its employ-

ees with annual wage increases: "Since 1980, Overnite had a

regular

practice of granting across-the-board annual wage and

mileage

increases to all its employees. That was never broken."

Overnite, 329

N.L.R.B. at 58.

The en banc majority, to its credit, candidly

acknowledges that sub-

stantial evidence supports the Board's finding that Overnite

had his-

torically provided its employees with annual wage

increases. The

majority then finds, however, in contravention of the

deferential stan-

dard of review to be accorded the Board, that "the nature

of the wage

increases was not sufficiently fixed to become a`term or

condition of

employment.'" Ante at 19. Its basis for this finding appears to

be that

Overnite did not award a wage increase in 1991, and that its

1994

wage increase was awarded as part of a Performance

Incentive Plan.

This finding by the majority is, for several reasons,

fatally flawed.

First, it is incorrect to say that the 1991 wage increase was

not

awarded. While the 1991 increase was due to be implemented

October 1991, it was delayed for three months until

January 1992.

Subsequently, from 1992 onward, the annual wage increase

was made

in January. Thus, as the ALJ specifically found,"[e]xcept for

that one

15-month period, increases ha[d] been given every 12 months."

Over-

nite, 329 N.L.R.B. at 58 n.96. Second, the fact that the 1994

wage

increase was awarded as part of the Performance Incentive

Plan does

not alter the fact that in each year since 1980, including

1994, Over-

nite had awarded its employees an annual wage increase. See

Eastern

Maine Med. Ctr. v. NLRB, 658 F.2d 1, 8 (1st Cir. 1981)

(explaining

that indefiniteness of amount, plus fact that company has

"flavor of

discretion," does not prevent annual wage increase from

becoming

term or condition of employment).

Without fail, Overnite awarded wage increases to its

employees

each year from 1980 through 1996, thus making it apparent

to both

the ALJ and the Board that an annual wage increase was a

term and

condition of employment with Overnite. As such, there is

compelling

and substantial evidence to support the Board's finding that

Overnite,

in denying the January 1996 wage increase to its union

employees,

made an illegal unilateral change to established terms and

conditions

of their employment.

Finally, the en banc majority ignores compelling evidence

that

Overnite took affirmative steps to ensure that its

discriminatory Janu-

ary 1996 wage increase would be noticed by its employees.

The ALJ

found that Overnite had "publicized the withholding of the

increase

to demonstrate that voting for the Teamsters presented

serious,

adverse consequences." Overnite, 329 N.L.R.B. at 60. And

Overnite

flaunted its actions, taunting the Union and its members by

distribut-

ing anti-union "campaign flyers stating that employees in the

repre-

sented units were 50 cents per hour behind nonunion

employees after

the 1996 wage increase and blamed the Union for refusing to

allow

the employees it represented to accept the increase and

refusing to

bargain about the increase." Id. Moreover, as the ALJ found,

Over-

nite's anti-union propaganda continued well after January

1996:

"[a]dditional flyers, apparently issued after [Overnite]

increased

wages in 1997, called attention to the fact that the

nonunion employ-

ees earned 95 cents more than those represented by the

Teamsters."

Id. at 60 n.103 (emphasis added). This uncontradicted activity

on the

part of Overnite plainly contravened both §§ 8(a)(1) and (3)

of the

Act, which prohibit an employer from discriminating with

regard to

a term or condition of employment in order to encourage or

discour-

age union membership. See NLRB v. Great Dane Trailers, 388

U.S.

26, 32 (1967) ("The act of paying accrued benefits to one

group of

employees while announcing the extinction of the same

benefits for

another group of employees who are distinguishable only by

their par-

ticipation in protected concerted activity surely may have

a discourag-

ing effect on either present or future concerted activity.").

This record compellingly indicates, with respect to

Overnite's dis-

criminatory January 1996 wage increase, that (1) it bypassed

the

Union and bargained directly with represented employees,

in viola-

tion of §§ 8(a)(1), and (5); (2) it discriminated against the

Union and

its members by awarding the wage increase to non-union

employees

only, in violation of §§ 8(a)(1) and (5); and (3) it flaunted its

illegal

activities by blaming the Union for the wage differential

between the

union and the non-union employees, in violation of§§ 8(a)(1)

and (3).

Because there is more than substantial evidence supporting

the

Board's findings of these unfair labor practices, the en banc

majority

has erred in its decision to the contrary.

III.

My second disagreement with the en banc majority

concerns its

assault on the Board's finding that certain questions asked

by Over-

nite's attorneys to employees at its Louisville service

center were

coercive in nature, in violation of § 8(a)(1) of the Act. The

majority

vacates the Board's conclusion that two questions,

submitted to the

Louisville employees in preparation for the ALJ's hearing

("Attorneys' Questions"), were coercive in nature:

! If you didn't sign the card or petition the first

time you

were asked, why did you sign it when you were asked

do so again?

! Did anyone from the Union tell you it was

important for

you to report to the Union or any employee any

problems

you had with the Company since the Union needed

unfair labor practice charges to help them

overturn the

election? If yes, who?

Overnite, 329 N.L.R.B. at 62.

Notwithstanding the majority's contention to the

contrary, there is

substantial evidence in this record to support the Board's

finding that

the Attorneys' Questions violated the Act. In Johnnie's

Poultry Co.,

146 N.L.R.B. 770 (1964), the Board set forth specific rules

under

which an employer may interview an employee in preparing a

defense

to an unfair labor practice allegation. Among other things,

"the ques-

tions must not exceed the necessities of the legitimate

purpose by pry-

ing into other union matters, eliciting information

concerning an

employee's subjective state of mind, or otherwise

interfering with the

statutory rights of employees." Id. at 775; see also

Standard-Coosa-

Thatcher Carpet Yarn Div., Inc. v. NLRB, 691 F.2d 1133, 1141

n.8

(4th Cir. 1982) (quoting Johnnie's Poultry Co. ). As the ALJ

found,

the first of the Attorneys' Questions inquired why the

employees

signed the bargaining cards, thus impermissibly probing the

employ-

ees' subjective states of mind. Overnite, 329 N.L.R.B. at 62.

Indeed,

the majority acknowledges as much, noting that it is

"possible" that

the ALJ was correct in determining that Overnite was

improperly

inquiring into the employees' subjective reasoning. Ante at

23. The

second of the Attorneys' Questions is impermissible because

exceeded Overnite's legitimate purposes for questioning

employees.

Overnite, 329 N.L.R.B. at 62. Although Overnite was entitled

determine whether there was an improper inducement in the

Union's

procurement of bargaining cards, its second question pried

into unre-

lated matters, asking whether anyone from the Union had

asked the

employees to report unfair labor practices.

Rather than according the Board deference on the

Attorneys' Ques-

tions, the en banc majority has substituted its own finding

for that of

the Board. It has long been settled, however, that the

Board "may

draw reasonable inferences from the evidence."

Owens-Corning

Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1362 (4th Cir. 1969).

And

it was entirely reasonable for the Board to conclude that

the Attor-

neys' Questions probed the subjective intent of the

employees and

exceeded Overnite's legitimate purposes. As such, the

Board's find-

ing that Overnite's conduct in connection with the

Attorneys' Ques-

tions constituted an unfair labor practice is supported by

substantial

evidence.

IV.

I turn now to my most fundamental disagreement with the

en banc

majority: its refusal to enforce the Board's Gissel

bargaining orders.

While the majority properly agrees that Overnite engaged

in severe

and pervasive unfair labor practices that dissipated union

majorities

at Lawrenceville, Louisville, Norfolk, and Bridgeton, it

nevertheless

finds the presence of mitigating factors — the lack of

continuing mis-

conduct, the employee turnover rate, the passage of time,

and the suc-

cess of the Union in elections at other service centers —

sufficient to

demonstrate that fair elections could have been held at

these four

locations. The majority also finds that the Board failed to

develop an

adequate record on the possibility of holding fair elections

at those

four service centers. In so finding, the majority has failed

to ade-

quately consider three controlling points: (1) the broad

discretion pos-

sessed by the Board in remedying such severe and pervasive

labor

violations; (2) the extent to which its four mitigating

factors fail to

limit the effects of Overnite's anti-union activity; and (3)

the exten-

sive record supporting issuance of the Gissel bargaining

orders. As

such, the en banc majority again fails to accord the Board

its proper

deference.

Our courts have consistently recognized that the Board

possesses

broad discretion to craft appropriate remedies in unfair

labor practice

cases. Indeed, the Board's chosen remedy must be enforced

"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." NLRB v. Williams Enters. Inc., 50 F.3d 1280, 1289 (4th

Cir.

1995). Notwithstanding the favored status of elections, the

Board —

given its "fund of knowledge and expertise" — must be

accorded the

special respect it is due in its fashioning of a remedy. NLRB

v. So-Lo

Foods, Inc., 985 F.2d 123, 126 (4th Cir. 1992) (quoting Gissel,

395

U.S. at 612 n.32). Obviously, the more severe and pervasive

the

unfair labor practices, the greater the scope of appropriate

remedial

measures.

In the Supreme Court's unanimous decision in NLRB v.

Gissel, ren-

dered over thirty years ago, Chief Justice Warren

recognized the

Board's authority (and obligation) to issue remedial

bargaining orders

in two distinct situations. First, such orders may be

appropriate in

"Category I" cases, where "exceptional," "outrageous," and

"perva-

sive" unfair labor practices have occurred, and where the

coercive

effects of such practices "cannot be eliminated by the

application of

traditional remedies." Be-Lo v. NLRB, 126 F.3d 268, 274 (4th

Cir.

1997) (quoting Gissel, 395 U.S. at 613-14). Second, and more

typi-

cally, remedial bargaining orders may be issued by the

Board in so-

called "Category II" cases, where the Board has found that:

(1) the

Union once had majority status; (2) such majority status was

dissi-

pated by the employer's pervasive misconduct; (3) there is

only a

slight possibility of erasing the effects of these past

pervasive prac-

tices and ensuring a fair election; and (4) employee

sentiment would,

on balance, be better protected by issuance of a bargaining

order.

NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988, 996 (4th Cir.

1979)

(citing Gissel, 395 U.S. at 614).

In fashioning a remedy in Category II Gissel cases, the

Board must

consider the scope and severity of the unfair labor

practices, with an

eye to their past effect on election conditions and the

likelihood, if

any, of their recurrence. See Gissel, 395 U.S. at 614. If the

Board con-

cludes that a fair election cannot be adequately ensured by

traditional

remedies, and if "employee sentiment once expressed

through [union

authorization] cards would, on balance, be better protected

by a bar-

gaining order," then as Chief Justice Warren observed, "such

an order

should issue." Id. at 614-15.

In this situation, the Board classified Overnite's

misconduct against

the Union and its employees as a Category II case, and it

proceeded

to issue Gissel bargaining orders for the service centers at

Lawrenceville, Louisville, Norfolk, and Bridgeton. The

majority rec-

ognizes that the Union had obtained signed card majorities

before the

earlier elections at the four service centers, and that the

Union's

majority status at those locations was dissipated by

Overnite's

repeated unfair labor practices. Ante at 27. After

re-weighing the evi-

dence, however, the majority has decided that the Board

should have

found that fair elections could have been conducted at the

four service

centers, and, as such, it has determined that the Gissel

bargaining

orders are unwarranted. In fact, the Board's record

contains a litany

of both national and unit-specific violations of the Act by

Overnite.

And, as we have observed, the scope of appropriate remedial

mea-

sures is necessarily enhanced, as a matter of course, when

the Board

is addressing severe and pervasive unfair labor practices.

Overnite's

anti-union activities — both nationally and at the four

service centers

— are more than sufficient to support the Board's

conclusion that fair

elections could not be held at the four locations. In order

to explain

this position fully, I am constrained to further review the

extensive

evidentiary record compiled by the Board.

1. National Hallmark Violations

In making its decision on the Gissel bargaining orders, the

Board

emphasized the numerous "hallmark violations" committed by

Over-

nite. Hallmark violations are those unfair labor practices

"so coercive

that their presence will support issuance of a bargaining

order unless

some significant mitigating circumstance exists." So-Lo Foods,

985

F.2d at 126 (quoting NLRB v. Jamaica Towing, 632 F.2d 208,

212-13

(2d Cir. 1980)). Where hallmark violations have been

committed, the

seriousness of the employer's conduct justifies a finding —

without

extensive explication — that the unlawful activity is likely

to have a

lasting inhibitive effect on union elections. Id.

The Board found hallmark violations present in

Overnite's "highly

coercive `carrot and stick' campaign," in which it granted

selective

wage increases to its unrepresented employees, while

simultaneously

communicating the futility of union negotiations and the

likelihood of

plant closures and job losses. Id. at 3. As the Board

recounted with

respect to Overnite's wage manipulations:

[I]n March 1995, at the height of the organizational

effort,

[Overnite] unlawfully granted its unrepresented

employees

an unprecedented wage increase, just months after

the

employees had received their normal (January)

increase. . . .

At approximately the same time that [Overnite] was

illegally

rewarding its unrepresented employees, [Overnite]

pro-

claimed in the company newsletter that

"unfortunately"

employees at the "four certified centers" where the

Union

had recently won Board elections "will not get

these pay

increases," but "will have to wait for negotiations."

. . . The

message that [Overnite's] combined actions sent to

employ-

ees was unmistakably clear: they could choose to

remain

unrepresented and enjoy any pay increase [Overnite]

may

grant in the future, or they could vote for union

representa-

tion and forego such benefits.

Id. (emphasis added).

Although the discriminatory March 1995 wage increase

reflected

Overnite's strong hostility to the Union's organization

efforts, it was

not an isolated occurrence. Indeed, as the Board found,

Overnite

"again distinguished among its service centers based on their

union or

nonunion status" in granting its wage increase the following

year. Id.

In January 1996, Overnite again publicly withheld its wage

increase

from employees at union-represented service centers, while

distribut-

ing flyers blaming the Union for the lower wages of those

bargaining

units. Id. The Board's findings on this point characterized

Overnite's

tactics crisply: "[T]he message was clear: companywide wage

increases would not be granted to employees who voted for

the

Union." Id.

In addition, Overnite's senior management threatened

employees

with the loss of their jobs if they voted for the Union. As

the Board

found, Jim Douglas, Overnite's President, personally

travelled to

more than fifty service centers in the course of

implementing a

nationwide anti-union campaign. He threatened that "a Union

victory

would `drive [Overnite] into nonprofit and put 14,000 jobs

in jeop-

ardy.'" Id. at 4. According to Douglas, a Union victory would

jeopar-

dize "the jobs and welfare benefits — everything." Id.

With this hostile anti-union atmosphere in mind, I turn to

Over-

nite's campaign of promises and threats at the four service

centers

subject to the Gissel bargaining orders — Lawrenceville,

Louisville,

Norfolk, and Bridgeton.

2. Unit-Specific Violations

a. Lawrenceville

A representation election was conducted at Overnite's

Lawrenceville, Georgia, service center in April 1995. The

Union lost

the election by only four votes, forty-two to thirty-eight,

and it filed

timely objections to Overnite's pre-election misconduct. The

ALJ and

the Board then found that Overnite had engaged in a series

of unfair

labor practices during the election campaign. For example,

restricted access to bulletin boards that had previously

been available

for employee postings. Overnite's "purpose was to discourage

the

employees in their campaign[,]" and the ALJ concluded that

Overnite

had thereby violated § 8(a)(1) of the Act. Overnite, 329

N.L.R.B. at

34. The Board found a litany of anti-union activity by

Overnite at

Lawrenceville, including:

! Lawrenceville manager Bill Carter "gave the

impression

to [an employee] that he was monitoring the union

activ-

ities." Id.

! Carter announced to a group of employees that he

had

attended a management conference, and that

Overnite,

under Douglas's management, was pursuing solutions

employee complaints regarding such issues as

overtime

policies and uniforms. The ALJ found that Carter's

state-

ments "unlawfully promised benefits in order to

discour-

age employees from supporting the [Union]." Id.

! Carter threatened to get rid of employees if they

voted to

be represented by the Union. Id. at 35. Indeed, he

admit-

ted telling two employees that he could have fired

them

for certain incidents; if they were to vote in the

Union,

he would not be as lenient. Id.

! An Atlanta manager, Roger Schager, conducted

several

mandatory meetings for the Lawrenceville

employees at

which he made illegal threats of closure and

employee

job loss. He projected that if Overnite had to

operate

under a Union contract, it would be forced to go

out of

business. He also warned that other trucking

companies

had not been able to survive unionization. Id.

! After screening an anti-union film at one such

meeting,

Schager reportedly told an employee: "[I]f you want

Union job why don't you go and get a Union job with

a company that is a Union company." Id. at 36. On

another occasion, he unlawfully offered to help

employ-

ees get jobs with union carriers if they were

dissatisfied

with Overnite's non-union status. Id.

! Schager also recounted the Chicago experience

to a

group of employees; Schager told them that the

Chicago

unit still did not have a contract after protracted

negotia-

tions, but he neglected to mention Overnite's

culpability.

Id. As the ALJ observed, "[b]y Schager's omission of

any reference to the Board's finding that Overnite

bar-

gained in bad faith, [Overnite] implied that

bargaining

would be futile, lasting for years without any

possibility

of agreement." Id.

! Similarly, in March 1995, Lawrenceville

dispatcher

Mike Rivers told a group of employees that union

employees at the Kansas City service center had not

received the March 5 pay raise. He added that, based

what the company's lawyers had told him, Overnite

would never sign a Union contract. Rivers asked the

employees to look at what had happened at the

Chicago

service center, reminding them that the Chicago

employ-

ees had been represented by the Union for ten to

thirteen

years and still did not have a contract. Like

Schager, he

advised Lawrenceville employees that all Overnite

had

to do was bargain in good faith. Id. at 37.

! In late March, Overnite's vice president of safety,

Bobby

Edwards, came to Lawrenceville and met with

employ-

ees, speaking to them about Chicago in detail.

Edwards

told them that the Chicago employees had voted for

Union representation and had been in negotiations

with

Overnite for about ten years but still did not have

a con-

tract. Additionally, he emphasized that employees

those service centers that had voted for Union

represen-

tation in 1994 and 1995 would not receive the March

1995 pay raise because the raise was subject to

collective

bargaining. Id.

! At another meeting, Edwards repeated the

remarks about

Chicago, adding that all Overnite had to do was

negotiate

in good faith. Edwards also announced that the

employ-

ees at the service centers that had voted for Union

repre-

sentation before March 5 would not receive the pay

raise

because it was "on the negotiating table." Id.

! While visiting the Lawrenceville service center,

Presi-

dent Douglas suggested to employees that they

serve on

committees to come up with better ways to spend

employee benefit funds. This, the ALJ found,

"amounted

to soliciting grievances from employees with a

promise

to redress them." Id. at 38. Douglas further

threatened

"that management would change its attitude in the

way

it enforced its work rules" if the Union won. Id.

Douglas

advised one employee that if the Union's campaign

were

successful, everything, including the employees'

jobs

and benefits, would be jeopardized. Id.

b. Louisville

A coordinated Union organizing effort began at the

Louisville ser-

vice center in early October 1994. By late November,

managers were

soliciting employee grievances, in violation of § 8(a)(1) of

the Act. A

representation election was held in March 1995, and the

Union lost

by only two votes, eighty-five to eighty-three. The Board

found that

Overnite management, during the period leading to the

representation

election, engaged in numerous unlawful measures to

alternately

appease and threaten its Louisville employees. Overnite's

anti-union

conduct at Lawrenceville, as found by the Board, included

the follow-

ing:

! Louisville manager Dave Harmeier conducted a

series of

employee meetings, some impromptu and some manda-

tory, in which he promised to be responsive and

encour-

aged employees to give Douglas's "new vision" a

chance. Id. at 39.

! Following this positive introduction, Douglas

made a

personal appearance at the Louisville service

center a

week before the scheduled election (about March

9 and

10). Douglas assured employees that he "was going

try and `straighten stuff out,'" and he specifically

men-

tioned the wage increase and improved benefits. The

ALJ found that, in the context in which they were

extended, Douglas's promises were intended to

dissuade

employees from supporting the Union. Id.

! In tandem with these rosy promises, management

"warned of the harm to employees that would

result if

the Union were successful." Id. at 40. One supervisor

warned employees that Overnite would "play

hardball"

if the Union won, and that everyone would have to

work

harder. Id. Another supervisor projected that "we'd

all be

out of work" if the Union were voted in. In short,

the

ALJ found that Overnite "threaten[ed] employees

with

the loss of their jobs and more onerous working

condi-

tions if they selected the [Union] as their

bargaining rep-

resentative." Id.

! At one mandatory meeting, Vice President Edwards

reported that the Union had won in Chicago in 1984,

and

he falsely stated that Overnite had been bargaining

good faith since then. Edwards added that all

Overnite

was obliged to do was offer five days' sick leave and

"that was bargaining in good faith." Id. If the Union

were

voted in, he projected, "then that means that [the

Union]

would start from scratch." Id. Edwards also said

that at

service centers that had voted in the Union, the pay

raise

would have to be negotiated, and if the Louisville

employees voted in the Union, bargaining would be

han-

dled basically like negotiations in Chicago. Id.

! At another meeting, Edwards told the employees

that the

Chicago facility still did not have any kind of

contract,

and that it had been at least ten years since the

employ-

ees voted the Union in. Id.

! Edwards discussed Chicago at yet another

meeting,

recounting how company representatives would

show

up, charges would be filed for bargaining in bad

faith,

Overnite would go to court and pay a small fine, and

then it would not have to show up again until the

follow-

ing year. Id.

! On several occasions, Edwards and Harmeier made

pre-

dictions about unionization to employees assembled

for

mandatory meetings. Once, Edwards pointed out that

the

Louisville employees would be receiving the March

pay

increase, but terminals that had voted a union in,

such as

Kansas City, would not because they would have to

negotiate first. Id. Another time, Edwards opined

that the

only way union employees would get a contract was

go on strike, and if they did, they could be

replaced. Id.

Harmeier also stated that the only leverage the

Union

had in bargaining was to call a strike, and warned

that

the Union could do so without a vote by the

employees.

Id.

! Louisville supervisors also took measures to

impede the

employees' statutory right to distribute and read

Union

literature. The ALJ found that, on one occasion, a

super-

visor "literally pulled [Union] papers out of the

hands of

one employee who was reading it and threw it in the

trash." Id. at 41.

! On the Friday night before the election, an

Overnite

supervisor told an employee that Harmeier had

instructed

him to get rid of all Union literature during the

last week

of the campaign. Id. At about the same time, a "Team-

sters Graveyard" poster was put up in the break

room,

depicting the gravestones of unionized trucking

compa-

nies; among them was an Overnite headstone with an

open grave and a question mark. Id. at 21 n.10.

c. Norfolk

The Union organizing campaign began at Overnite's

Norfolk, Vir-

ginia, service center in January 1995, and a representation

election

was held in March 1995. The Union lost by a vote of

fifty-eight to

twenty-nine, and it objected to Overnite's illegal

pre-election conduct.

As in Lawrenceville, the ALJ found that Overnite violated

the Act by

preventing its Norfolk employees from posting union

literature on

company bulletin boards that had been made available for

the

employees' general use. Id. at 48. Norfolk manager Michael

Menden-

hall even threatened to fire employees for posting an NLRB

form on

one such bulletin board. Id. The ALJ found that Overnite

engaged in

a number of other anti-union practices leading up to the

election at

Norfolk, including:

! Supervisors told employees that, among the

adverse con-

sequences of voting in the Union, they would lose

the

March 5, 1995, pay raise. Id. at 47-48.

! Mendenhall told employees that the good things

Over-

nite had planned would be postponed because the

com-

pany would have to divert the funds to keep

Overnite

nonunion. Id. at 48. The ALJ further found that

Menden-

hall "gave some instructions about the way the

union

campaign was to be run," informing employees that

"he

would not stand for any union literature on his

bulletin

board." Id. (emphasis in original).

! In late February 1995, Mendenhall conducted a

lengthy

meeting attended by about twenty-five employees.

began the meeting by stating that the Union had

filed a

petition for an election and that any of the service

centers

that voted in the Union before March 5 would not

receive the pay increase scheduled to take effect

that day,

because the increase could not be established in

the

6525 49 1 absence of contract negotiations. He further

remarked

that the service center in Chicago had not settled

on a

contract after thirteen years of negotiations. Id.

! Mendenhall told employees that he would not

tolerate

conversations about the Union while they were

working

or at the workplace, and that if they did not comply

with

that policy, they had better be careful. Prior to

the Union

campaign, company policy was that employees could

talk to one another as long as their conversation

did not

interfere with their jobs. Id. at 48-49 & n.72.

! During the week following the February meeting,

employee David Spaugh, an outspoken Union

supporter,

asked Mendenhall how long it would be before he

would

be fired if the Union lost the election. Mendenhall

replied: "Everyone will be held accountable." Id. at

49.

On March 14, Mendenhall told Spaugh and fellow

employee Rich Williams that Williams had become an

"agitator." Id. He warned that he did not want to see

any-

thing bad happen to either of them because of the

Union

campaign, and that they should be careful. Id.

! At various other mandatory meetings, Mendenhall

made

additional predictions about the consequences of

union-

ization. For example, he repeated that the Kansas

City

employees would not be getting the March pay

increase

because they had voted the Union in. Id. at 47. He

also

boasted that in the thirteen years the Union had

repre-

sented employees at the Chicago service center,

there

had never been a contract. If the Union were to

prevail

at Norfolk, he projected, the same scenario would

play

out in Norfolk: "Overnite would negotiate in good

faith,

but the employees would never get further than

their

vote." Id. at 50.

! At one or more of the meetings, Mendenhall also

told the

employees that if the terminal voted for Union

represen-

tation, "business would be re-routed around them"

and

their hours might be cut. Id. As an example, he cited

the

experience at Kansas City, where "word was" that

this

was happening. Id.

! On several occasions, Mendenhall threatened

employees

with unspecified retaliation, letting them know

that he

"was not going to stand for insubordination." Id. at

49.

Moreover, he was found to have denied pro-union

employees the same opportunities to speak at the

manda-

tory meetings as anti-union employees, "cut[ting]

short

employees who made prounion comments or asked

ques-

tions for clarification." Id. at 50.

! Management threatened employees with the loss

of the

company's 401(k) pension plan. Id. at 49.

! In the weeks before the election, Norfolk

supervisors

gave "Vote No" hats to those employees who were

going

to vote against the Union, which the ALJ found to

con-

stitute interrogation of employees about their

union sym-

pathies. Id. at 49-50.

! In February, a supervisor told a group of eleven

twelve employees that if the Union were to win,

they

would lose their jobs. Moreover, if the Union were

strike, they would lose their jobs and Overnite

probably

would not call them back. Id. at 50. That same day,

another supervisor told an employee that the

employees

were going to get a fifty-cent-per-hour raise, but if

the

Union were voted in, they would "lose it." Id. at 47.

! On March 14, a supervisor told a Norfolk

employee that

he was "afraid" for himself and Overnite if the Union

got

in. He expressed his concern that Overnite would

not be

able to pay the Union scale, and that the employees

should look at the union companies that had gone

out of

business. Id. at 49.

! An employee complained that

supervisors"`watched

[him] like a hawk' and stayed within listening

distance."

Id. at 50. The ALJ determined that not only did

supervi-

sors create an impression of surveillance, but that

"there

was actual surveillance and monitoring in violation

Section 8(a)(1) of the Act." Id.

! The former Norfolk manager was sent to assist

with the

anti-union campaign. The ALJ found that he

unlawfully

"told employees that Douglas was working on

improve-

ments of the workplace and benefits, which was an

implied promise of those improvements; impliedly

prom-

ised the termination of the [terminal manager], if

that

would change employees' prounion sympathies; and

informed employees that strikes were inevitable."

Id. at

51.

d. Bridgeton

The Union began an organizing campaign when Overnite

opened

a new service center in Bridgeton, Missouri, in December

1994. A

representation election was held on February 28, 1995, and

the Union

lost by only two votes, twenty-four to twenty-two. It then

filed objec-

tions to Overnite's pre-election misconduct. In January 1995,

Bridge-

ton manager Walter Grimes began illegally monitoring one

of the

most steadfastly pro-Union drivers — "even checking the

bathroom"

— to ensure that he was not engaging in organizational

activities. Id.

at 53. Along with illegal monitoring, the ALJ found

numerous other

pre-election violations by Overnite, including:

! Grimes removed union literature posted on the

company

bulletin board, left on tables in the break room

and in the

employee bathroom. While removing the pro-Union

lit-

erature, the manager allegedly remarked that

he"[didn't]

like to see that shit hanging on his board." Id.

! In January and February, local supervisors

stifled con-

versations between Union supporters and other

employ-

ees. On the other hand, conversations between

anti-union

employees and others were left undisturbed.

Around the

same time, Grimes asked a union supporter what the

employees wanted. When that employee said

overtime

and better benefits, Grimes responded: "They are in

the

works." Id. at 54.

! Overnite's "troubleshooters" arrived in the

Bridgeton-St.

Louis area around February 5 and stayed until

February

14, riding with all the drivers except the two most

active

union supporters. Id. at 53.

! One such troubleshooter, Andy Hamilton, told a

driver

that Overnite wanted to make its employees happy,

accommodating them by improving benefits and

inviting

more employee input. After the driver mentioned

that

overtime would make the company a better place to

work, Hamilton assured him that it was in the

works.

Hamilton also told the employee that he would

look into

the idea of an employee committee that would

participate

in selecting the benefit package, but advised him

that

"we don't need a third party at Overnite." Id. at

53-54.

When another employee made similar suggestions

about

benefits and overtime pay, Hamilton told him those

things were in the works. Id. at 54 n.83.

! During the pre-election period, Overnite sent the

former

Bridgeton Manager Jeff Woods, Operations Director

Morgan, and President Douglas to speak to the

Bridgeton

employees. In February, Woods told employees that

Overnite was looking into overtime and, although he

could not make any promises, he was "pretty sure" it

was

going to happen and that it was "almost a sure thing

...

almost a done deal." Id. at 54. Woods warned that

the

Union "would not work within the Overnite environ-

ment" and that, as a result, the benefit

improvements

Overnite was trying to make would be lost. Finally,

just

a week before the election, he urged employees to

give

the new management a chance. Id.

! About two weeks before the election, Operations

Direc-

tor Morgan spoke at a mandatory meeting of about

fif-

teen employees. He responded to questions about

overtime pay by telling them that Douglas had

taken

over as president and, although he could not

promise

them anything because of the Union campaign,

Douglas

was looking into these problems and devising

solutions.

Id. On the same day, Morgan informed a group of

employees that it was not too late to come up with

non-

union solutions to employee grievances. When one

employee remarked that other companies had better

wages and benefits, but that Overnite's profits were

higher, Morgan replied that these were the sorts

of prob-

lems that they needed to present to Douglas, and

that

they ought to give Jim a chance. Id. at 55.

! President Douglas made several visits to

Bridgeton prior

to the election, speaking with employees about

benefits,

including overtime pay. During one such

conversation,

Douglas queried, "What if we gave you overtime at

say,

over 45, 48 hours, but we maybe lessen [overall

work-

load]," adding that they were looking into medical

bene-

fits. Douglas proceeded to discuss the pros and cons

overtime pay. Id. at 54.

! Two weeks before the election, Douglas held a

meeting

with about twenty to twenty-five employees. He

announced that he wanted to know what was on

their

minds, and that he was trying to change things for

the

better. In response to employee questions about

matters

such as overtime, uniforms, sick days, and medical

bene-

fits, Douglas assured employees that he was looking

into

such matters. The company, Douglas asserted, could

take

care of its own and did not need third-party

interference.

Id. at 55.

As the Board found, Overnite was engaged, over an

extended

period of time, in an ongoing national effort, characterized

by unlaw-

ful anti-union activity, against the Teamsters.

Simultaneously, Over-

nite pursued "highly coercive `carrot and stick' campaign[s]"

Lawrenceville, Louisville, Norfolk, and Bridgeton. Id. at 3.

Overnite

repeatedly solicited employee grievances with express or

implied

promises to remedy them. It consistently reminded its

workers that

unionized employees would not receive the March 1995 wage

increase, but would instead have to wait for negotiations.

The frus-

trated negotiations in Chicago were repeatedly invoked to

remind

employees of Overnite's aversion to unionization. Overnite

supervi-

sors asserted that unionization would cause Overnite to

lose custom-

ers, go out of business and "shut the doors," and that the

Union would

jeopardize "jobs, . . . benefits — everything." Id. at 4.

Additionally,

Overnite's management made multiple threats against the

Union,

including loss of benefits, imposition of stricter discipline

and work

rules, along with more onerous working conditions.

Overnite also

engaged in an unlawful crackdown on union activities at

each of the

four service centers, including threats of retaliation,

unlawful surveil-

lance of union activities, the stifling of conversations

among pro-

union employees, and unlawful restrictions on the use of

company

bulletin boards.

The en banc majority does not dispute that Overnite was

guilty of

this litany of unfair labor practices, and it readily concedes

that Over-

nite's misconduct dissipated the Union's majority at the

Lawrenceville, Louisville, Norfolk, and Bridgeton service

centers.

Ante at 27. However, again ignoring the deference the Board

is due,

the majority concludes that Overnite's conduct did not

warrant the

Gissel bargaining orders. It chooses to focus on four

asserted "miti-

gating factors" to support its position: (a) Overnite's lack of

continu-

ing misconduct; (b) the rate of employee turnover; (c) the

passage of

time; and (d) that fair elections were held at other

Overnite service

centers. As explained below, the majority's reliance on

these factors

is misplaced.

First of all, the majority maintains that Overnite's unfair

labor

practices ceased in mid-1995. To the contrary, there is ample

evi-

dence that Overnite continued to engage in severe and

pervasive vio-

lations of the Act in 1996 and 1997, after Overnite and the

Union had

partially settled their differences in July 1995. The

following exam-

ples support this point:

! In December 1995, Overnite circumvented the

Union

and proposed its annual wage increase, coupled with

productivity agreement, directly to the unionized

employees. By its supervisor's own admission,

Overnite

intentionally sought to avoid bargaining with the

Union

about the wage increase and productivity

agreement.

! In spite of the fact that Overnite had a

sixteen-year prac-

tice of awarding annual wage increases to its

employees,

it awarded the January 1996 wage increase in a

discrimi-

natory manner, to non-union employees only.

! Following its discriminatory January 1996 wage

increase, Overnite flaunted its conduct by

distributing

anti-union campaign flyers asserting that non-union

employees were being paid more than union

employees,

and further contending that "voting for the

Teamsters

presented serious, adverse consequences." Overnite,

329

N.L.R.B. at 60.

! In preparation for the hearing before the ALJ in

May

1996, Overnite's attorneys engaged in coercive

question-

ing of employees at the Louisville service center.

! In 1997 Overnite again publicized its wage

discrimina-

tion against the union employees. As the ALJ

explained,

"[a]dditional flyers, apparently issued after

Respondent

increased wages in 1997, called attention to the

fact that

the nonunion employees earned 95 cents more than

those

represented by the Teamsters." Id. at 60 n.103

(emphasis

added).

In sum, this voluminous record contains unequivocal

evidence to sup-

port the Board's finding that, well after the partial

settlement, Over-

nite continued its anti-union activities and engaged in

additional

violations of the Act.

The majority's second basis for refusing to enforce the

Gissel bar-

gaining orders is that the Board failed to properly consider

the rate of

employee turnover occurring after the original elections.

In point of

fact, however, the Board did consider the issue of employee

turnover,

and it specifically found that "[i]n the present case, even

accepting,

arguendo, the facts asserted by [Overnite] concerning

employee turn-

over, we find the effects of [Overnite's] unlawful conduct

are not

likely to be sufficiently dissipated by turnover to ensure

a free second

election." Overnite, 329 N.L.R.B. at 5 (emphasis added). The

Board

went on to explain that the employee turnover rate did not

undermine

the Gissel bargaining orders, observing that a substantial

majority of

employees continued to be employed by Overnite, and that

they

would recall its coercive and impermissible actions.4 Id.

Under applicable law, there is no specific threshold rate

employee turnover that renders a Gissel bargaining order

impermissi-

ble. Moreover, if such a threshold rate existed, it would

not be impli-

cated in this case. When the bargaining orders were issued,

between

sixty and seventy percent of the Overnite employees who

were

exposed to its earlier campaign of unfair labor practices

continued to

work at the four service centers. And the courts have

frequently

upheld Gissel bargaining orders in the face of higher

turnover rates.

For example, in NLRB v. So-Lo Foods, 985 F.2d 123, 128-29

(4th Cir.

1992), we upheld a bargaining order in which the turnover

rate was

seventy-three percent. See also Amazing Stores, Inc. v. NLRB,

887

____________________________________________________________

The majority asserts that the Board's conclusion on

turnover imper-

missibly relied on what is called the "lore of the shop," i.e.,

employees'

tales of past employer misconduct, and therefore it did not

adequately

consider the turnover issue. Ante at 28 n.4. The Board,

however, made

clear that it relied on factors other than the "lore of the

shop" in reaching

its conclusion that employee turnover failed to mitigate

Overnite's mis-

conduct. In fact, while specifically rejecting the concept of

"lore of the

shop" as speculative, Board Member Hurtgen concurred with

the major-

ity that the turnover rate was not a sufficiently mitigating

factor. Member

Hurtgen instead noted that the disparity in treatment

between union and

non-union employees at Overnite, e.g., with respect to wages,

was suffi-

cient to render the turnover rate inconsequential.

Overnite, 329 N.L.R.B.

at 5 n.25.

F.2d 328, 330-31 (D.C. Cir. 1989) (upholding bargaining order

despite ninety-five percent turnover); NLRB v. Gordon, 792

F.2d 29,

34 (2d Cir. 1986) (enforcing bargaining order after

one-hundred per-

cent turnover); Action Auto Stores, Inc., 298 N.L.R.B. 875

(1990),

enforced 951 F.2d 349 (6th Cir. 1991) (issuing bargaining

order

where there was seventy-five percent turnover).

Although, not unexpectedly, there was some turnover of

employees

at the four service centers, the Board carefully assessed

this factor in

light of Overnite's overall anti-union conduct. It then

determined that,

based on the record and its expertise, the Gissel bargaining

orders

should issue. As such, the majority's attribution of error to

the Board

on the factor of employee turnover is misplaced.

The majority also places emphasis on the asserted

"passage of

time" between Overnite's unfair labor practices and the

Gissel bar-

gaining orders, concluding that there was nearly a five-year

gap. The

majority's analysis, however, which is premised on its

conclusion that

Overnite's anti-union activity ended in July 1995, is flawed.

In fact,

Overnite engaged in unfair labor practices in late 1995 and

early 1996

when it (1) circumvented the Union; (2) awarded its

discriminatory

wage increase to non-union employees only; and (3)

distributed cam-

paign flyers blaming its discriminatory conduct on the

Union. Fur-

thermore, the ALJ found that this coercive behavior

continued in

1997 when Overnite circulated additional flyers calling

attention to

the fact that "nonunion employees earned 95 cents more

than those

represented by the Teamsters." Overnite, 329 N.L.R.B. at 60

n.103.

The very next year, in April 1998, the ALJ issued its Decision

detail-

ing Overnite's anti-union activity and recommending issuance

of Gis-

sel bargaining orders. By that time, the ALJ had conducted

its

evidentiary hearing in this complex case, and it had reviewed

thou-

sands of pages of exhibits and more than 14,000 pages of

hearing

transcripts. Id. at 6. In these circumstances, the passage of

a single

year's time is hardly excessive. Moreover, if we were to

compute the

passage of time based on the date of the Board's Decision and

Order

(November 1999), rather than the ALJ's Decision, the lapse

(from

1997 to November 1999) would be less than three years.

As with the employee turnover rate, there is no

threshold time lapse

after which issuance of a Gissel bargaining order by the

Board is

legally impermissible. Any undue lapse of time is simply

another fac-

tor for the Board to consider in applying its expertise. It is

true, of

course, that in some circumstances, a time lapse may be

sufficient to

preclude a fair election. See Be-Lo v. NLRB, 126 F.3d 268,

282 (4th

Cir. 1997) ("It strains credulity to believe that Be-Lo's

unfair labor

practices, such as they were, had such long-lasting effects

that a fair

rerun election could not have been held four years later

. . . ."). How-

ever, the courts have routinely enforced bargaining orders

involving

time lapses longer than the one in this case. For instance, in

So-Lo

Foods, we enforced a Gissel bargaining order issued

three-and-a-half

years after assertion of the unfair labor practices. So-Lo

Foods, Inc.,

303 N.L.R.B. 749, 750 (1991), enforced, 985 F.2d 123 (4th Cir.

1992). See also NLRB v. Intersweet, Inc., 125 F.3d 1064, 1068

(7th

Cir. 1997) (explaining that period of "just over three years

...

between the time of the violations and the imposition of the

Gissel

order" did not render bargaining order unenforceable

because it was

"ordinary institutional time lapse[ ] inherent in the legal

process")

(internal quotations and citations omitted). In light of

Overnite's anti-

union activities and the other relevant aspects of this case,

the Board

reasonably found that the time lapse did "not approach the

time found

to render the Gissel orders stale in some cases." Overnite,

329

N.L.R.B. at 6.

The majority's final point in justifying its view on the

bargaining

orders is that "fair reelections were found to have been

conducted at

several other sites which were similarly influenced by

Overnite's

unfair labor practices." Ante at 29. Significantly, both the

Board and

the ALJ also fully considered this factor; they

nevertheless concluded

that, in the circumstances, Gissel bargaining orders were

warranted at

Lawrenceville, Louisville, Norfolk, and Bridgeton.

Overnite, 329

N.L.R.B. at 6 n.26, 63. Reviewing the Board's choice of remedy

for

abuse of discretion, as we must, I entirely agree with the

Board.

The Union's ability to prevail in isolated elections at

other facilities

does not mean that fair elections would occur at

Lawrenceville, Lou-

isville, Norfolk, and Bridgeton. In point of fact, we do not

know why

employees at the other facilities voted for the Union. We

could specu-

late (although it is improper to do so): perhaps the unfair

labor prac-

tices at those locations were not as severe as these, or

perhaps a

distinct set of employee concerns propelled the Union to

success. Put

simply, a myriad of factors could explain why the Union

succeeded

at the other service centers.

Our job is not to guess what might have occurred at the

other ser-

vice centers. Instead, our task is to review the extent and

impact of

the unfair labor practices that occurred at Lawrenceville,

Louisville,

Norfolk, and Bridgeton, and then to assess, under the

applicable legal

principles, the propriety of the Gissel bargaining orders.

The litany of

anti-union activity at those four locations, recounted supra

at 51-62,

coupled with Overnite's national violations of the Act,

provide ample

support for their issuance.

In addition to maintaining that fair elections were

possible at

Lawrenceville, Louisville, Norfolk, and Bridgeton, the

majority faults

the Board for having insufficiently detailed its findings in

support of

the Gissel bargaining orders. We have indicated that when

the Board

issues Gissel bargaining orders it must make a "`detailed

analysis' of

the `continuing effect of misconduct, and the potential

effectiveness

of ordinary remedies . . . .'" Be-Lo, 126 F.3d at 282 (quoting

NLRB

v. Appletree Chevrolet, Inc., 608 F.2d 988, 997 (4th Cir.

1979)). The

rationale underlying this directive is that, in order to

enable us to

assess whether a bargaining order is warranted, the Board

must pro-

vide us with an adequate record.

And in this case, the record is more than adequate. The

Board care-

fully analyzed Overnite's continuing misconduct and the

relevant

related factors, and it also considered the inadequacy of

ordinary

available remedies. It then issued its Decision and Order

reiterating

the meticulous and exhaustive Decision of the ALJ. In so

doing, the

Board observed that "[b]ecause this case falls within

category II, we

have, as mandated by the Supreme Court in Gissel, examined

the

extensiveness of the Respondent's unfair labor practices and

the like-

lihood of their recurrence in the future." Overnite, 329

N.L.R.B. at 2.

By way of example, the Board thoroughly examined the

"compliance

program" which Overnite had supposedly instituted to avoid

future

unfair labor practices, and it determined that Overnite's

compliance

program had been a failure. Id. at 4. The Board also made

specific

findings that (1) Overnite had engaged in severe and

pervasive hall-

mark violations of the Act, (2) the violations could not be

remedied,

and (3) the violations would not be dissipated by employee

turnover.

Id. at 5-6. Thus, in issuing its Gissel bargaining orders, the

Board

carefully assessed the likelihood of recurring unfair labor

practices

and the efficacy of ordinary remedies. As such, it has

provided us

with a detailed record for our review and assessment of its

Gissel bar-

gaining orders.

The Supreme Court's unanimous decision in Gissel clearly

articu-

lated the role of bargaining orders in remedying unlawful

election

activity, and in deterring future anti-union misconduct. As

the Court

observed:

If an employer has succeeded in undermining a

union's

strength and destroying the laboratory conditions

necessary

for a fair election, he may see no need to violate a

cease-and

desist order by further unlawful activity. The

damage will

have been done, and perhaps the only fair way to

effectuate

employee rights is to re-establish the conditions as

they

existed before the employer's unlawful campaign.

Gissel, 395 U.S. at 612.

This very proceeding presents the scenario envisioned by

the Court

in Gissel. Faced with Overnite's egregious violations of the

Act, the

Board concluded that bargaining orders were warranted at

the four

contested service centers, and it issued them. Informed as

it was by

the Board's unique expertise and by the exhaustive findings

of the

ALJ, the Board's Order was entirely appropriate, and we

should

enforce it.

I respectfully dissent, and I am pleased to state that

Judge Michael

and Judge Motz concur in this dissenting opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.