NLRB v. Transpersonnel Inc.

Filed: January 8, 2004

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 02-2344(L)

(11-CA-17507)

National Labor Relations Board,

Petitioner,

versus

Transpersonnel, Incorporated,

Respondent.

O R D E R

The court amends its opinion filed November 13, 2003, as

follows:

On page 20, second full paragraph, line 5 -- the word

“opinion” is added between “majority’s” and “acknowledges.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD, 

Petitioner,

v.  No. 02-2344

TRANSPERSONNEL, INCORPORATED,

Respondent.



TRANSPERSONNEL, INCORPORATED, 

Petitioner,

v.  No. 02-2414

NATIONAL LABOR RELATIONS BOARD,

Respondent.



On Application for Enforcement and

Cross-Petition for Review of an Order

of the National Labor Relations Board.

(11-CA-17507)

Argued: June 5, 2003

Decided: November 13, 2003

Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.

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

cross-petition for review granted in part and denied in part by pub-

lished opinion. Judge Shedd wrote the opinion. Judge Luttig wrote an

opinion concurring in part and dissenting in part. Judge Wilkinson

wrote a dissenting opinion.

2 NLRB v. TRANSPERSONNEL, INC.

COUNSEL

ARGUED: Donald Christopher Lauderdale, HAYNSWORTH,

BALDWIN, JOHNSON & GREAVES, L.L.C., Greenville, South

Carolina, for Transpersonnel. Ruth Elizabeth Burdick, NATIONAL

LABOR RELATIONS BOARD, Washington, D.C., for Board. ON

BRIEF: Arthur R. Rosenfeld, General Counsel, John E. Higgins, Jr.,

Deputy General Counsel, John H. Ferguson, Associate General Coun-

sel, Aileen A. Armstrong, Deputy Associate General Counsel, Marga-

ret A. Gaines, Supervisory Attorney, NATIONAL LABOR

RELATIONS BOARD, Washington, D.C., for Board.

OPINION

SHEDD, Circuit Judge:

This case is before the Court on the application for enforcement

filed by the National Labor Relations Board (the Board) and the

cross-petition for review filed by the employer, Transpersonnel, Inc.

The Board determined that Transpersonnel violated § 8(a)(1), 29

U.S.C. § 158(a)(1), of the National Labor Relations Act (the NLRA

or the Act) by unlawfully soliciting nine of its employees to sign anti-

union statements. It also ruled that Transpersonnel violated § 8(a)(1)

and § 8(a)(5), 29 U.S.C. § 158(a)(5), of the Act by withdrawing rec-

ognition from the General Drivers, Warehousemen and Helpers,

Local 28, affiliated with International Brotherhood of Teamsters,

AFL-CIO (the Union).

We conclude that substantial evidence supports a finding that

Transpersonnel unlawfully solicited only two — not nine — of its

employees. We also conclude that substantial evidence does not sup-

port the Board’s finding that Transpersonnel unlawfully withdrew

recognition of the Union. Therefore, we grant in part and deny in part

the Board’s application for enforcement, and we grant in part and

deny in part Transpersonnel’s cross-petition for review.

NLRB v. TRANSPERSONNEL, INC. 3

I.

As found by the Board,1 Transpersonnel leases long-haul truck

drivers to, among other customers, the Kohler Company in Spartan-

burg, South Carolina. Starting in 1993, the Union was the bargaining

representative of the Transpersonnel employees at Kohler under a col-

lective bargaining agreement. That collective bargaining agreement

expired in September 1996. In February 1997, at least ten Transper-

sonnel employees working at Kohler commenced an economic strike.

Two employees, Raymond Wray and Grant Crow, did not strike. It

is undisputed that Wray did not support the Union.

By April 1997, Transpersonnel began hiring replacement drivers.

It held an orientation meeting with the replacement drivers and Wray

on April 6 at the Holiday Inn in Spartanburg. During that meeting, the

employees circulated among themselves a piece of Holiday Inn statio-

nery with handwriting at the top that stated "No Union." All six of the

replacement drivers and Wray — a total of seven employees2 —

signed the document, which was later handed to a Transpersonnel

official during a break in the meeting.

Over the next few weeks, Transpersonnel claims it obtained state-

ments from five other employees who indicated they did not want to

be represented by the Union. Combining these five statements with

the seven signatures obtained at the April 6 meeting, Transpersonnel

asserted that twelve employees in the unit did not want Union repre-

sentation. On May 9, Transpersonnel informed the Union that it had

"received objective evidence that [the Union] no longer represents a

majority of our employees." J.A. 291. Based on this information,

Transpersonnel withdrew recognition from the Union.

1

The ALJ made findings, rulings, and conclusions, and the Board

affirmed them. The Board also made findings, rulings, and conclusions

that were consistent with the ALJ’s in most respects. Where it is not rele-

vant whether the ALJ or the Board made a particular finding, ruling, or

conclusion, we indicate the Board made the determination.

2

There were actually eight drivers who attended the meeting and

signed the document. One of the drivers left Transpersonnel before it

withdrew recognition of the Union, so whether this eighth driver sup-

ported the Union is immaterial.

4 NLRB v. TRANSPERSONNEL, INC.

In August 1997, the Board’s General Counsel issued a complaint,

alleging that Transpersonnel unlawfully solicited an unspecified num-

ber of employees to sign anti-union statements and unlawfully with-

drew recognition of the Union. In May 1998, the ALJ decided that

Transpersonnel unlawfully solicited nine employees and unlawfully

withdrew recognition of the Union. The Board adopted the ALJ’s rec-

ommended order in September 2001.

II.

After a collective bargaining agreement expires, under the law

applicable to this case, an employer may not withdraw recognition of

a union unless the employer shows either that (1) the union did not

in fact enjoy majority support, or (2) the employer had a good-faith

doubt, founded on a sufficient objective basis, of the union’s majority

support. Pirelli Cable Corp. v. N.L.R.B., 141 F.3d 503, 520 (4th Cir.

1998). The Board concluded that Transpersonnel failed to make either

showing.

In making this determination, the Board found that there were as

few as twenty-two employees in the Transpersonnel bargaining unit

on May 9 — ten strikers who supported the Union and twelve drivers

who did not strike.3 Of these twelve drivers who did not strike, the

Board decided that Transpersonnel improperly solicited anti-union

statements from nine — the six replacement drivers who signed the

"No Union" document during the April 6 meeting and three others

who provided statements in the weeks following the April 6 meeting:

Crow, Johnny Emerson, and Bradley Forkey. Therefore, although

Transpersonnel claimed that it could rely on all twelve of the anti-

union statements it received from the nonstriking employees, the

Board concluded that Transpersonnel could rely on the anti-union

declarations of only three of the twenty-two unit employees: Wray,

Dean Hefner, and Franklin Harris. Accordingly, the Board concluded

that Transpersonnel violated §§ 8(a)(1) and 8(a)(5) when it withdrew

recognition of the Union.

3

See infra at 17-18 for a discussion of how many employees were in

the Transpersonnel unit on May 9.

NLRB v. TRANSPERSONNEL, INC. 5

III.

We must affirm the Board’s factual findings if they are "supported

by substantial evidence on the record considered as a whole." 29

U.S.C. § 160(e); Medeco Security Locks, Inc. v. N.L.R.B., 142 F.3d

733, 742 (4th Cir. 1998). Substantial evidence is "such relevant evi-

dence as a reasonable mind might accept as adequate to support a

conclusion." Consolidated Diesel Co. v. N.L.R.B., 263 F.3d 345, 351

(4th Cir. 2001) (internal quotation omitted). If substantial evidence

exists, we must uphold the Board’s decision "even though we might

have reached a different result had we heard the evidence in the first

instance." N.L.R.B. v. Daniel Construction Co., 731 F.2d 191, 193

(4th Cir. 1984).

IV.

The Board found that Transpersonnel violated § 8(a)(1) by improp-

erly soliciting nine employees to provide anti-union statements. These

nine are the six replacement drivers who attended the April 6 meeting,

plus Crow, Emerson, and Forkey.

The test for a § 8(a)(1) violation is whether, "under all of the cir-

cumstances, the employer’s conduct may reasonably tend to coerce or

intimidate employees." N.L.R.B. v. Grand Canyon Mining Co., 116

F.3d 1039, 1044 (4th Cir. 1997) (internal quotation omitted). It does

not matter whether the particular conduct by the employer was actu-

ally coercive. Consolidated Diesel, 263 F.3d at 352. Instead, the rele-

vant inquiry is "whether the conduct in question had a reasonable

tendency in the totality of circumstances to intimidate." Equitable

Gas Co. v. N.L.R.B., 966 F.2d 861, 866 (4th Cir. 1992) (internal quo-

tation omitted). Whether particular conduct tends to coerce or intimi-

date is a question essentially left to the specialized experience of the

Board, and we must show respect for the Board’s findings. Consoli-

dated Diesel, 263 F.3d at 352. Nevertheless, a reviewing court is

empowered to set aside a Board’s decision when the court cannot

conscientiously find substantial evidence to support the Board’s deci-

sion, when viewing the record as a whole including the body of evi-

dence opposed to the Board’s view. Weirton Steel v. N.L.R.B., 689

F.2d 504, 507 (4th Cir. 1982).

6 NLRB v. TRANSPERSONNEL, INC.

A. April 6 Meeting

Transpersonnel scheduled an orientation meeting at the Spartan-

burg Holiday Inn for its newly hired replacement drivers. Wray, one

of the two drivers who refused to join the strike, also attended the

meeting. Thomas Husvar, Transpersonnel’s Regional Manager, led

the meeting.

Husvar and Wray parked next to each other in the hotel parking lot

and walked to the meeting together. Wray said to Husvar: "Tom, I

don’t want union representation. I don’t think the people want union

representation. What do we have to do?" J.A. 147-48. Husvar

responded: "Those are very good questions. Why don’t you ask those

questions in the meeting . . . because I think everybody has the right

to know . . . what their rights are." J.A. 148.

During the meeting, Wray repeated his question. In response, Hus-

var told the employees that they had the right to decide whether they

wanted Union representation, that Transpersonnel could not influence

their decision, and that if they did not want Union representation then

Transpersonnel would need some sort of documentation evidencing

their preference.

While the meeting proceeded, the employees circulated a piece of

Holiday Inn stationery with the handwritten notation "No Union" at

the top. All of the six replacement drivers and Wray signed the docu-

ment. Husvar did not circulate the document, nor did he know that the

employees were circulating it. One of the employees handed the note

to another Transpersonnel manager during a break in the meeting and

the document was eventually given to Husvar when the meeting

resumed.

After the "No Union" document was handed to Husvar, one of the

replacement drivers asked, "[W]hat do we do now?" J.A. 150. Husvar

told the group that Transpersonnel could not do anything about the

Union until a majority of the employees indicated that they did not

want Union representation. Husvar also assured the replacements that

they were permanent employees and that they would not lose their

jobs even if the strike ended.

NLRB v. TRANSPERSONNEL, INC. 7

The complaint filed by the Board’s General Counsel did not allege

any unlawful conduct arising out of the April 6 meeting. In his open-

ing statement to the ALJ, the General Counsel made no reference to

the April 6 meeting.4 Husvar is the only person who testified before

the ALJ about that meeting, and the ALJ credited his testimony. The

General Counsel did not attempt to elicit any testimony from any

other person who attended the meeting.

In deciding that Husvar unlawfully solicited the replacement driv-

ers to sign the "No Union" document, the Board found that Husvar

failed to take a "neutral position" when asked by Wray in the parking

lot what Wray and the new employees could do to get rid of the

Union. J.A. 342. According to the Board, Husvar improperly directed

Wray, who was clearly biased against the Union, to ask his question

during the meeting in front of the other employees. Moreover, Husvar

failed to object when the employees circulated the "No Union" docu-

ment in his presence. The ALJ also found, without explanation, that

it was improper for Husvar to tell the replacements that they would

not lose their jobs even if the strike ended.5

The Board’s finding of an unfair labor practice relating to the April

6 meeting is not supported by substantial evidence. Husvar’s conduct

during the April 6 meeting lacks all indicia of any tendency to intimi-

date or coerce.6 Wray, not Husvar, initiated the question of how the

4

It is clear that the General Counsel intended to focus on the alleged

solicitations of three employees. He called only three drivers to testify:

Forkey, Emerson, and Hefner. The General Counsel does not now argue

that Transpersonnel improperly solicited Hefner’s anti-union statement.

5

Although the Board affirmed the ALJ’s conclusions generally, the

Board made no mention of this particular conclusion. The Board’s

silence is understandable in light of the opinion by the District of Colum-

bia Circuit in Mathews Readymix, Inc. v. N.L.R.B., 165 F.3d 74, 79 (D.C.

Cir. 1999), which was issued after the ALJ’s decision but before the

Board’s order. The court in Mathews Readymix recognized that replace-

ment employees would naturally want to know how the conclusion of a

strike would affect their employment status.

6

The Board cites Boren Clay Products Co. v. N.L.R.B., 419 F.2d 385

(4th Cir. 1970), to support its contention that Husvar unlawfully solicited

the replacement drivers during the meeting. The Board’s reliance on

Boren Clay is misguided. In Boren Clay, the employer made "decidedly

coercive" statements to its employees and withdrew recognition even

though it knew the union enjoyed majority support. Id. at 385-86. No

such evidence exists in this case.

8 NLRB v. TRANSPERSONNEL, INC.

employees could get rid of the Union. Wray told Husvar that other

replacement drivers shared his opposition to the Union. It was prudent

for Husvar, for the sake of uniformity and efficiency, to answer the

question in a group setting rather than individually.

The Board determined that Husvar was not justified in relying on

Wray’s statement that other replacement drivers also wanted to get rid

of the Union, because Wray was obviously biased against the Union.

In support of this conclusion, the Board cited Allentown Mack Sales

and Service, Inc. v. N.L.R.B., 522 U.S. 359 (1998). The Board’s reli-

ance on Allentown is misplaced.7

The employer in Allentown relied on two employees who repre-

sented that other employees did not support the union. One of the two

employees was a union steward. The Board determined that the

employer should not have relied on the information provided by the

steward. The Supreme Court disagreed, finding the information pro-

vided by the steward helped establish the employer’s good-faith doubt

about the majority status of the union. Id. at 370-71.

The Board in this case distinguished the nonhostile union steward

in Allentown from Wray, the clearly biased employee. Based on this

distinction, the Board found it improper for Transpersonnel to rely on

Wray’s statement that others shared his interest in getting rid of the

Union. This conclusion, however, is belied by the Supreme Court’s

discussion of the second employee in Allentown.

The second employee in Allentown was not a steward. He told the

employer that all of his fellow workers on the night shift did not want

the union. The Board also found the employer improperly relied on

this employee’s statement. The Supreme Court again disagreed, hold-

ing that "absent some reason for the employer to know that [the

employee] had no basis for his information, or that [the employee]

7

The Board asserts that Transpersonnel waived its claim that it should

be allowed to rely on Wray’s representation by not raising this argument

in its brief. We disagree. In its brief, Transpersonnel cited verbatim

Wray’s conversation with Husvar before the April 6 meeting. Moreover,

because the Board relied on Allentown in deciding the case, we must

determine whether its reliance was appropriate.

NLRB v. TRANSPERSONNEL, INC. 9

was lying, reason demands that the statement be given considerable

weight." Id. at 370.

Because there is no evidence in the record that Wray lied or lacked

a basis for his information, we find, consistent with the Supreme

Court’s decision in Allentown, that Husvar (and thus Transpersonnel)

properly relied on Wray’s assertion that other replacement drivers

also wanted to know how to get rid of the Union.

Moreover, Husvar’s answer to Wray’s question during the meeting

correctly stated both the law and the facts. Husvar assured the

employees that each could decide for himself whether he wanted the

Union. Husvar further informed the employees that Transpersonnel

would need a document signed by them if they did not want to be rep-

resented by the Union.

Husvar’s comments were not improper. It is not an unfair labor

practice for an employer to provide accurate information in response

to an employee’s question, as long as the answer is not accompanied

by any inducement or threat. Terminix-Int’l Co., 315 N.L.R.B. 1283,

1287-88 (1995); Lee Lumber and Building Material Corp., 306

N.L.R.B. 408 (1992). Husvar’s answer was accurate and free of any

inducement or threat.

The ALJ also found that Husvar’s comment to the employees that

they were permanent replacements and would keep their jobs even if

the strike ended was coercive. We hold that this response by Husvar

clearly was not coercive as a matter of law. Before the April 6 meet-

ing, several employees asked the company about their status as

replacement drivers. These replacement employees would naturally

want to know whether they would be able to keep their jobs if the

strikers came back to work. See Mathews Readymix, Inc. v. N.L.R.B.,

165 F.3d 74, 79 (D.C. Cir. 1999) (explaining that the Board may not

ignore evidence that replacements might want the employer to with-

draw recognition of the union to ensure keeping their jobs). Because

several replacement employees had already asked the company about

their status as replacement drivers and because it was likely that all

of them would share the same concern, it was appropriate for Husvar

to address this issue during the meeting.

10 NLRB v. TRANSPERSONNEL, INC.

Moreover, what Husvar told the new employees during the meeting

about keeping their jobs is, of course, an entirely accurate statement

of the law. If a strike is an economic strike (as it was at Transperson-

nel), the employer need not terminate replacement workers when

strikers seek to return to work; rather, the employer need only place

its strikers on a preferential rehiring list and call them back when an

opening becomes available. Pirelli Cable Corp. v. N.L.R.B., 141 F.3d

503, 516 (4th Cir. 1998). Any effect this comment might have on the

new employees’ decision whether to join the Union is a consequence

of the law rather than improper coercion or intimidation by the

employer. Id. (finding a letter from the employer to its employees not

threatening or coercive, because the letter merely stated the potential

effect on the employment status of strikers if a strike ensued and

replacements were hired); Lee Lumber, 306 N.L.R.B. at 410

("Otherwise lawful statements do not become unlawful, however,

merely because they have the effect (intended or otherwise) of caus-

ing employees to abandon their support for a union.").

Last, the Board determined that Husvar improperly influenced the

replacement drivers by not objecting to the circulation of the "No

Union" document. Husvar testified that he did not know the employ-

ees were circulating the "No Union" document. The Board credited

this testimony. Nevertheless, the Board criticized Husvar for permit-

ting the employees to circulate the document in his presence. The

Board’s conclusion is not supported by substantial evidence. Husvar

could not object to the circulation of the document if he was unaware

that the drivers were circulating it.8

8

The ALJ relied on the Board’s decision in Mathews Readymix, Inc.,

324 N.L.R.B. 1005, 1011, n. 16 (1997), to support its conclusion that

Husvar improperly influenced the six replacement drivers who signed the

"No Union" petition during the April 6 meeting. In that case, company

officials (like Husvar) were present in a meeting where employees signed

a decertification petition during a break. The company officials were not

aware that the petition was being circulated. The Board in Mathews

Readymix found that the company unlawfully withdrew recognition of

the union.

The District of Columbia Circuit reversed the Board’s decision and

found no unfair labor practice relating to the meeting in question.

Mathews Readymix, Inc. v. N.L.R.B., 165 F.3d 74 (D.C. Cir. 1999).

NLRB v. TRANSPERSONNEL, INC. 11

For all of the above reasons, we find that the Board’s conclusion

that Transpersonnel unlawfully solicited the six employees to sign the

"No Union" document is not supported by substantial evidence.

Transpersonnel’s conduct did not have a reasonable tendency in the

totality of the circumstances to coerce or intimidate. Thus, Transper-

sonnel was entitled to rely on these six anti-union statements obtained

during the April 6 meeting in deciding whether to withdraw recogni-

tion of the Union. Therefore, when these six statements are combined

with the three undisputed statements, Transpersonnel properly relied

on these nine anti-union statements.

B. Grant Crow

Crow, like Wray, worked for Transpersonnel before the strike.

During the two years prior to the strike, he was pressured by the

Union workers to join the Union but adamantly refused. He also

refused to go on strike and crossed the picket line for two weeks but

later asked Transpersonnel not to assign him to the Kohler account

because he felt threatened by the strikers. Transpersonnel accommo-

dated his request. Husvar was aware of Crow’s nonsupport of the

Union.

Crow periodically telephoned Husvar to find out the status of the

strike, and after the strike quieted down, Husvar encouraged Crow to

return to work at Kohler. In one such call by Crow to Husvar soon

after the April 6 meeting, Husvar told Crow that the replacement

workers had signed a document expressing that they did not want

Union representation and that the number of those who did not want

Union representation was growing. Crow responded: "You know how

I feel about that. If there’s anything I can do, I’ll do it." J.A. 172. Hus-

var replied that if Crow wanted to express his position about the

Union, he should send Husvar a letter. Crow asked Husvar to send

him sample language of what to say in the letter, but Husvar told

Crow to put it in his own words. Crow, however, again requested that

Husvar send him sample language. Husvar sent Crow a sample letter

in the mail. A few days later, Crow returned a letter to Husvar that

stated, "I Grant L. Crow do not want the Teamsters to represent me

when I drive at the Kohler Company." J.A. 313. Crow did not follow

the sample language Husvar provided.

12 NLRB v. TRANSPERSONNEL, INC.

The Board erred by finding that Husvar’s conduct would tend to

intimidate or coerce. The undisputed testimony established that Crow

initiated the telephone call and that Husvar accurately informed Crow

of the status of the strike. It is further undisputed that Crow volun-

teered to take action to show his support for the anti-union employees.

Crow specifically asked Husvar to send him sample language. Merely

providing accurate information upon request of the employee, even

for sample language, does not constitute conduct that would tend to

coerce or intimidate. Bridgestone/Firestone, Inc., 2001 WL 1076111

(N.L.R.B. 2001) (deciding that the employer provided only lawful,

ministerial aid to its employee by drafting petition disavowing the

union); Ernst Home Centers, Inc., 308 N.L.R.B. 848 (1992). Because

Transpersonnel did not unlawfully solicit Crow’s statement, Transper-

sonnel was entitled to rely on Crow’s disavowal of the Union. Thus,

Crow’s statement raises to ten the number of anti-union statements

upon which Transpersonnel could properly rely.

C. Johnny Emerson

The ALJ heard testimony from Emerson, Husvar, and Joanne Hurt,

Transpersonnel’s operations manager, regarding whether Transper-

sonnel improperly solicited Emerson. Although there was substantial

variance in the testimony, especially as to the timing of the events, all

the testimony was consistent in one respect: Emerson did not want

union representation.

Husvar and Hurt testified that they received an unsolicited anti-

union statement from Emerson before May 9. Emerson, on the other

hand, testified that Hurt asked him later in May to send a statement,

which he did. The ALJ credited the testimony of Emerson over

Hurt’s.

The balancing of the credibility of witnesses is at the heart of the

fact-finding process, and it is normally not the role of reviewing

courts to second-guess a fact-finder’s determinations about who was

the more truthful witness. Fieldcrest Cannon, Inc. v. N.L.R.B., 97

F.3d 65, 71 (4th Cir. 1996). Thus, absent extraordinary circumstances,

we will not disturb an ALJ’s credibility determinations. Sam’s Club

v. N.L.R.B., 173 F.3d 233, 240 (4th Cir. 1999). We decline to disturb

the ALJ’s credibility determinations, which were adopted by the

NLRB v. TRANSPERSONNEL, INC. 13

Board, regarding the testimony provided by Emerson, Husvar, and

Hurt, and we enforce the Board’s finding that Transpersonnel violated

§ 8(a)(1) by soliciting a statement from Emerson.9

We note, however, that, under the circumstances, this solicitation

"can hardly be considered a grave violation of 8(a)(1)." See N.L.R.B.

v. Nu-Southern Dyeing & Finishing, Inc., 444 F.2d 11, 16 (4th Cir.

1971). The request for a statement was very brief and certainly

restrained. Emerson testified that Hurt said

something to the effect of what my feelings were about a

union and working for a union. She didn’t tell me one way

or another. She just said, "Whatever your feelings are, put

it down in a note and send it to me."

J.A. 79. Thus, Hurt’s solicitation was "no more than a technical viola-

tion of 8(a)(1)." Id. at 16.

We further note that, even though Transpersonnel violated

§ 8(a)(1) by soliciting a statement from Emerson, that ruling does not

necessarily mean that Transpersonnel could not rely on Emerson’s

dissatisfaction with union representation in deciding whether to with-

draw recognition of the Union on May 9. A finding that an employer

engages in conduct that has a reasonable tendency to coerce or intimi-

date does not necessarily mean that the employer may not rely on a

decertification petition subsequently signed by an employee. See Nu-

Southern Dyeing, 444 F.2d at 16. Employers may "avoid a bargaining

order by showing that the unfair labor practices did not significantly

contribute to such a loss of majority or to the factors upon which a

doubt of such a majority is based." Id.

We need not, however, decide whether the solicitation of Emerson

significantly contributed to the Union’s loss of majority status or to

Transpersonnel’s good-faith doubt as to the Union’s majority status.

Another, more evident basis in the record establishes that the solicita-

9

We also conclude that substantial evidence supports the Board’s find-

ing that Transpersonnel violated § 8(a)(1) by interrogating Emerson. We

note, however, that the interrogation occurred after May 9 and did not

affect Transpersonnel’s withdrawal of Union recognition.

14 NLRB v. TRANSPERSONNEL, INC.

tion of Emerson could not have influenced Transpersonnel’s decision

to withdraw recognition of the Union on May 9. The only fair reading

of the testimony credited by the ALJ reveals that the solicitation of

Emerson occurred after May 9.10 Accordingly, even if Emerson’s

statement obtained after May 9 was improperly solicited, Transper-

sonnel clearly did not rely on it when it decided to withdraw recogni-

tion of the Union on May 9.11

D. Bradford Forkey

According to Forkey, Hurt interviewed him in early April. She

informed Forkey that there was a strike in progress, and she asked

him whether he minded working under that circumstance. Forkey said

"no." J.A. 36. Hurt told him that as long as everything checked out

on his application he could show up for work on April 13.

As directed, Forkey showed up for work on April 13. As he was

stowing his luggage in the truck, his driving partner told him that he

needed to see Husvar about signing a document. Husvar was at the

terminal that morning in his car, so Forkey walked over to speak with

him. Husvar told Forkey that he wanted him to sign a statement

"about not belonging to the union. Or, wanting the union representa-

tion." J.A. 38. Forkey took a piece of paper out of his notebook, wrote

a note indicating that he did not want Union representation, and

handed it to Husvar.

Forkey did not know whether signing the document was a require-

ment of his starting work. He wrote the note because he needed to go

to work. Forkey wrote the note of his own free will.

10

The ALJ found only that the solicitation occurred sometime "in May

1997." J.A. 339. According to Emerson, whose testimony the ALJ cred-

ited, the facts, even when viewed most unfavorably to Transpersonnel,

show that Emerson applied for the job on April 15 and started two weeks

later, which would have been April 29. Hurt did not request Emerson’s

statement until at least two weeks after he started work, which would

have been no earlier than May 13, and at any rate after May 9.

11

For the discussion of whether Transpersonnel could validly rely on

Emerson’s opposition to the Union, see infra at 18-19.

NLRB v. TRANSPERSONNEL, INC. 15

The Board credited Forkey’s testimony. Nevertheless, the Board

concluded, contrary to Forkey’s testimony, that "Husvar asked Brad-

ford Forkey to sign a paper about not wanting Union representation."

J.A. 338. This conclusion, which is the primary conclusion underlying

the Board’s finding as to the Forkey solicitation, is clearly not sup-

ported by substantial evidence. Husvar did not ask Forkey for a note

saying that he did not want Union representation. Instead, Husvar

merely asked Forkey for a statement indicating whether or not he

wanted the Union.

Despite this errant finding, we have reviewed the record and find

support for the Board’s ultimate conclusion that Husvar unlawfully

solicited Forkey.12 Even though Forkey testified that he signed the

statement of his own free will, we affirm the Board’s decision that

Husvar’s conduct, under the totality of the circumstances, had a rea-

sonable tendency to intimidate or coerce.

E.

In summary, the Board concluded that Transpersonnel unlawfully

solicited a total of nine employees: the six replacement drivers at the

April 6 meeting, Crow, Emerson, and Forkey. We find, however, that

there is substantial evidence to support a finding of unlawful solicita-

tion as to only Emerson and Forkey. Accordingly, of these particular

nine employees, we find that Transpersonnel properly relied on the

anti-union statements provided by seven: the six obtained during the

April 6 meeting and Crow’s. Combining these seven with the three

undisputed statements, Transpersonnel properly relied on ten anti-

union statements. In section V, we discuss whether Transpersonnel

could rely on the disavowals of the Union by Emerson or Forkey in

deciding whether to withdraw recognition of the Union.

12

Although substantial evidence exists, it is very slim evidence at best.

Like the violation involving Emerson, the Forkey violation also can

hardly be considered a serious violation even under the circumstances

credited by the Board.

16 NLRB v. TRANSPERSONNEL, INC.

V.

A.

The Board decided that Transpersonnel unlawfully withdrew rec-

ognition of the Union on May 9. We disagree.

Section 8(a)(5) of the Act makes it unlawful for an employer to

refuse to bargain with its employees’ certified union while the collec-

tive bargaining agreement is in effect. Pirelli Cable, 141 F.3d at 520.

A union is usually entitled to a conclusive presumption of support by

a majority of unit employees during the term of the collective bar-

gaining agreement. See Auciello Iron Works, Inc. v. N.L.R.B., 517

U.S. 781, 785 (1996).

After the collective bargaining agreement expires, however, the

union enjoys only a rebuttable presumption of majority status. Id. at

786. Based on Board precedent in force when Transpersonnel with-

drew recognition, to rebut this presumption, an employer must show

either that (1) the union did not in fact enjoy majority support, or (2)

the employer had a good-faith doubt, founded on a sufficient objec-

tive basis, of the union’s majority support. N.L.R.B. v. Curtin Mathe-

son Scientific, Inc., 494 U.S. 775, 778 (1990).

To make the first showing, a petition signed by at least half of the

bargaining unit’s members indicating they do not wish to be repre-

sented by the union ordinarily constitutes sufficient objective evi-

dence to rebut the union’s presumed majority status. N.L.R.B. v. D &

D Enters., Inc., 125 F.3d 200, 209 (4th Cir. 1997). An employer may,

however, rely on forms of proof other than a petition, so long as that

other evidence objectively demonstrates a free and voluntary choice

on the part of an employee to withdraw his support of the labor orga-

nization. See Master Slack Corp., 271 N.L.R.B. 78 (1984).

As for the second showing, a good-faith doubt is a genuine, reason-

able uncertainty about whether the union enjoys the continuing sup-

port of a majority of unit employees. Allentown Mack Sales & Serv.,

Inc. v. N.L.R.B., 522 U.S. 359, 367 (1998). Under the law applicable

to this case, an employer may withdraw recognition of a union even

NLRB v. TRANSPERSONNEL, INC. 17

if the union continues to enjoy majority status, if the employer has a

genuine, good-faith doubt whether the union continues to enjoy

majority status. See Levitz Furniture Co., 2001 WL 314139 at *7

(N.L.R.B. 2001); Celanese Corp., 95 N.L.R.B. 664 (1951), overruled

in part by Levitz Furniture at *17. The employer bears the burden of

proving loss of majority status or good-faith doubt. Virginia Concrete

Co. v. N.L.R.B., 75 F.3d 974, 980 (4th Cir. 1996). Determining

whether an employer has presented sufficient evidence regarding the

loss of majority status or good faith-doubt is a question of fact for the

Board, subject to limited review. Id. at 980. A reviewing court, never-

theless, must search the entire record for substantial evidence and in

doing so must consider whatever in the record supports the Board’s

findings and also whatever fairly detracts from those findings. Pirelli

Cable, 141 F.3d at 514.

B.

1.

We first decide whether the Board’s conclusion that Transperson-

nel failed to establish that the Union "in fact" lacked the support of

a majority of the unit employees on May 9 is supported by substantial

evidence. The unit employees at Transpersonnel on May 9 included

the twelve employees who crossed the picket line — the six replace-

ment drivers who attended the April 6 meeting (Crow, Emerson, and

Forkey) and the three undisputed Union opponents (Wray, Hefner,

and Harris) — plus the strikers. See Virginia Concrete, 75 F.3d at 981

(ruling that an economic striker retains the status of employee entitled

to vote within twelve months of a strike unless certain contingencies

occur before the election).

The Board represents on appeal that there were ten employees who

actively engaged in the strike. Board Brief, pp. 4-5, 43-45, 48.13 After

reviewing the record as a whole, we conclude that there were ten

13

The ten strikers identified by the Board are: Merl Davidson, Vernon

Payden, James Prater, Bobby Rice, Gary Scott, Frank Sellars, Jimmy

Snyder, Bernard Swenson, Clyde Whitaker, and William Wilkins. J.A.

333, n. 8; Board Brief, pp. 4-5.

18 NLRB v. TRANSPERSONNEL, INC.

14

strikers on May 9. Thus, the unit included a total of twenty-two

employees: ten strikers and twelve nonstrikers.15

We presume that the ten strikers supported the Union on May 9.

As for the twelve nonstrikers, it is undisputed that Transpersonnel

received valid written disavowals of the Union from three employees:

Wray, Hefner, and Harris. We have also concluded, contrary to the

Board, that the "No Union" expressions by the six replacement drivers

on April 6 were valid and the statement from Crow was properly

obtained. Thus, of these twenty employees, ten supported the Union

and ten did not. The only two employees unaccounted for in the total

of twenty-two unit employees are Emerson and Forkey.

As for Emerson, based on the testimony credited by the Board, we

find that Transpersonnel’s improper solicitation of Emerson occurred

after May 9.16 We conclude, however, that Transpersonnel had, before

May 9, other objective and reliable evidence that Emerson did not

14

The exact number of strikers on May 9 is disputed by the parties. In

the proceedings below, Transpersonnel asserted that there were nine

strikers and twelve nonstrikers for a total of twenty-one unit members.

The Union argued twelve strikers and twelve nonstrikers for a total of

twenty-four unit members. The ALJ decided that there were at least

eleven strikers. The ALJ declined to include the twelfth possible striker

urged by the Union, Jerry McDaniel, because the "record evidence was

not fully developed but it appears [McDaniel] was off work due to a dis-

ability, which prevented him from returning to work." J.A. 341.

In its order, the Board assumed ten strikers for a total of at least

twenty-two unit members. In reaching this number, the Board assumed

that McDaniel was not a striking employee based on the ALJ’s finding.

The Board further assumed that Earl Dople was not a striking employee

because there was insufficient evidence in the record to determine his

employment status.

15

Even though the Board represents that there were only ten strikers,

it indicates that there were twenty-three unit members. Board’s Brief, pp.

9, 43. To get to twenty-three, however, either McDaniel or Dople must

be included. The Board does not urge any basis in the record, and we

find no basis, to conclude that either McDaniel or Dople should be

included as strikers. Thus, we find that the record supports a finding of

only ten strikers and only twenty-two unit members on May 9.

16

See ante at 14, n. 10.

NLRB v. TRANSPERSONNEL, INC. 19

support the Union. Hefner, Emerson’s driving partner for many years,

specifically told Transpersonnel before May 9 that he wanted nothing

to do with union representation and neither did Emerson. The Board

found that Transpersonnel was justified in relying on this statement

by Hefner as evidence that Emerson was dissatisfied with union rep-

resentation. J.A. 343.

We find that the Board erred in deciding that Transpersonnel failed

to meet its burden of showing that the Union had in fact lost the sup-

port of a majority of the unit members on May 9. Including Emerson,

at least eleven of the twenty-two unit members at Transpersonnel did

not support the Union. Therefore, the Union did not in fact enjoy

majority status on May 9, and Transpersonnel did not violate

§§ 8(a)(1) and 8(a)(5) by withdrawing recognition of the Union.17

2.

We next address Transpersonnel’s alternative argument that it had

a good-faith doubt whether the Union enjoyed majority status. We

find, as an additional ground supporting our judgment, that the

Board’s decision that Transpersonnel failed to establish its good-faith

reasonable uncertainty that the Union did not enjoy majority support

on May 9 is not supported by substantial evidence.

The ten valid written statements of nonsupport of the Union — six

from the April 6 meeting, plus Crow, Wray, Hefner, and Harris —

and the oral representation by Hefner about Emerson’s dissatisfaction

with union representation create a good-faith doubt that the Union

lacked majority support. At a minimum, Transpersonnel had a reason-

17

Because we conclude that Transpersonnel may rely on Emerson’s

disavowal and it has thereby met its burden of establishing that the Union

did not in fact enjoy majority support on May 9, we need not address

whether Transpersonnel could also rely on Forkey’s anti-union state-

ment. See Pirelli Cable, 141 F.3d at 520-21 (outlining four factors to

determine whether a decertification petition has been tainted by an

employer’s unfair labor practices); Mathews Readymix, 165 F.3d at 133

(holding that uncontested coercive interrogation of replacement employ-

ees did not taint the employees’ signatures on the decertification peti-

tion).

20 NLRB v. TRANSPERSONNEL, INC.

able uncertainty whether these eleven of twenty-two employees sup-

ported the Union. See Allentown Mack Sales, 522 U.S. at 371-72

(holding that the employer established its good-faith doubt of union’s

majority status based on oral statements by fewer than half of the unit

members).18

VI.

For the forgoing reasons, we

GRANT IN PART AND DENY IN PART

THE BOARD’S APPLICATION FOR ENFORCEMENT,

AND GRANT IN PART AND DENY IN PART

TRANSPERSONNEL’S CROSS-PETITION

FOR REVIEW.

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

I concur in the opinion for the court, with the exception of Part

IV.D. From that part of the court’s opinion, I dissent. Although the

ALJ credited Forkey’s testimony over Husvar’s, Forkey’s own testi-

mony does not support the Board’s adopted finding that he was ille-

gally solicited — as the majority’s opinion acknowledges. As the majority

explains, the ALJ’s "primary conclusion" supporting the illegal solici-

tation finding as to Forkey — i.e., that Husvar asked Forkey for a

18

We note that the good-faith defense is no longer available to an

employer. In 2001, after the ALJ decided this case in 1998, the Board

reversed its longstanding precedent by deciding that an employer may no

longer withdraw recognition of a union based on a good-faith doubt. It

ruled that an employer may prevail only by establishing that the union

does not actually enjoy majority support. Levitz Furniture Co., 2001 WL

314139 at * 11, 17 (N.L.R.B. 2001). The Board reasoned that it was

inconsistent with the Act to allow an employer to withdraw recognition

of a union based on a good-faith doubt even when the union in fact is

supported by a majority of the unit employees. The Board’s concern in

Levitz is not implicated in this case, since we also find that the Union did

not in fact enjoy majority support on May 9. Moreover, the Board gave

its new rule in Levitz only prospective effect, so the good-faith doubt

defense would still be available to Transpersonnel in this proceeding,

even if it could not show that the Union in fact lacked majority support.

NLRB v. TRANSPERSONNEL, INC. 21

statement saying that he did not want union representation — is

directly contradicted by Forkey’s own testimony. Forkey testified that

Husvar sought him out "merely [to] ask[ ] [him] for a statement indi-

cating whether or not he wanted the Union," ante at 15 (emphasis

added), and then Husvar accepted the note Forkey wrote him in

response to his request. J.A. 38. Indeed, on the basis of this testimony

by Forkey himself, the majority rejects as "clearly not supported by

substantial evidence" the ALJ’s conclusion that Husvar asked Forkey

to sign a paper that he did not want union representation.

Notwithstanding Forkey’s own testimony that he was merely asked

for a statement as to whether or not he supported the union (which the

majority accepts), and without offering any other evidence in support

of its conclusion that Forkey reasonably would have been intimidated

or coerced, the majority finds that substantial evidence supports the

Board’s judgment that Transpersonnel unlawfully solicited Forkey.

If we are prepared to affirm the Board’s conclusion, we should at

least be prepared to recite the evidence on the basis of which we ren-

der that disposition, even if (or especially if) that evidence is "very

slim evidence at best," ante at 15 n.12. When the substantiality of evi-

dence supporting a conclusion is challenged, mere conclusory state-

ments that substantial evidence exists give rise to a legitimate

inference that no such evidence exists in fact.

Because the majority rejects as "clearly not supported by substan-

tial evidence" the ALJ’s finding that Husvar asked Forkey to sign a

paper that he did not want union representation; because it offers no

evidence beyond this rejected conclusion in support of the Board’s

judgment that Husvar’s conduct had a reasonable tendency to intimi-

date or coerce Forkey in the exercise of his section 7 rights; and

because I am aware of no such evidence, I dissent from Part IV.D of

the court’s opinion.

WILKINSON, Circuit Judge, dissenting:

Many of Transpersonnel’s drivers lawfully went out on an eco-

nomic strike. Transpersonnel hired replacement workers and promptly

used statements made by these replacement workers to decertify the

union. The question before us today is not what we might have done

22 NLRB v. TRANSPERSONNEL, INC.

if faced with this case in the first instance. Rather, our review is lim-

ited to whether the Board took a permissible view of the evidence in

finding that the company unlawfully solicited anti-union statements

from its replacement employees. With all respect for my good col-

leagues, I think that the Board did.

The question of whether or not a company’s actions would tend to

coerce an average employee is one at the heart of the Board’s exper-

tise. An employer’s conduct must be examined "in the context of its

labor relations setting." J.P. Stevens & Co. v. NLRB, 638 F.2d 676,

687 (4th Cir. 1980) (citations omitted). In other words, a company’s

conduct must be judged by how a worker, who is economically

dependent on an employer, would understand the company’s actions.

In this regard, the Board’s findings of fact must be sustained, even

if a reviewing court "might have reached a different result had [it]

heard the evidence in the first place." NLRB v. Nueva Eng’g, Inc., 761

F.2d 961, 965 (4th Cir. 1985) (citations omitted). Deference to the

Board’s findings of fact is particularly appropriate where credibility

determinations are at issue, and "absent exceptional circumstances,

the ALJ’s credibility findings, ‘when adopted by the Board are to be

accepted by the [reviewing] court.’" NLRB v. Air Prods. and Chems.,

Inc., 717 F.2d 141, 145 (4th Cir. 1983) (alterations in original) (cita-

tions omitted). Rather than according the appropriate deference to the

ALJ who heard the testimony and then credited one set of inferences

over another, the majority reconstructs the dynamics of the April 6

meeting in order to draw its own conclusions. In so doing, it has over-

stepped its bounds as a reviewing court.

The ALJ found that the conduct of Husvar and Burrell at the April

6 meeting had the tendency to coerce six replacement employees in

the exercise of their rights, and the Board adopted this finding. The

majority contends that this finding lacks support in the record because

it concludes that the company was doing no more than giving out

accurate information and acting in a neutral fashion. However, there

is substantial evidence to support the Board’s view that Husvar’s con-

duct created an atmosphere in which the drivers would feel pressured

to sign the "no union" petition.

The meeting was attended by a small group consisting mostly of

newly-hired striker replacements. This gathering was their first offi-

NLRB v. TRANSPERSONNEL, INC. 23

cial meeting with the company. One of the purposes of the meeting

was to discuss their employment status as replacements. The only

non-replacement driver present was Raymond Wray, who began the

session by asking, at Husvar’s behest, what could be done to get rid

of the union. Husvar responded by telling the drivers that the com-

pany would need some written proof of the employees’ anti union

sentiments in order to oust the union. It was hardly unreasonable for

the Board to find that under the totality of the circumstances, Hus-

var’s statement would tend to make the replacement employees feel

that the company was trying to elicit anti-union statements from them.

These newly-hired workers, replacement drivers whose standing with

the company was bound to be of concern to them, would understand-

ably want to please their employer. Because of the small number of

employees at the meeting, the company would likely become aware

of each and every individual who chose not to sign a "no union" note.

Thus an employee who did not wish to sign the petition might none-

theless have done so rather than risk the boss’s displeasure and be

branded a union sympathizer right at the start of his employment.

Moreover, Husvar could simply have answered Wray’s question

when it was first asked rather than having him hold it until the meet-

ing when all the workers would be present. The company defends this

action as one of administrative efficiency, contending that Husvar was

merely saving himself the trouble of repeating the information again

at the meeting. But this assumes that at least some of the replacement

workers had also independently decided that they wanted to decertify

the union. Husvar had no indication of this except for Wray’s state-

ment "I don’t want union representation. I don’t think the people want

union representation." Husvar did not know whether or not Wray had

spoken to most, or even any, of the replacement workers before Hus-

var decided that all of the drivers needed to hear information on how

to get rid of the union. While it is not a necessary inference that Hus-

var was trying to pressure these drivers in the exercise of their rights,

it is certainly a permissible one. The Board’s finding that Husvar’s

actions would tend to coerce newly-hired workers to sign a "no

union" note at a small initial meeting presided over by the employer’s

chosen representatives is not without support in the record.

The right to self-organization is the fundamental guarantee of the

National Labor Relations Act. See 29 U.S.C. § 157 (2000). To that

24 NLRB v. TRANSPERSONNEL, INC.

end, employers are forbidden to "interfere with, restrain, or coerce

employees in the exercise of [their] rights." 29 U.S.C. § 158(a)(1).

The Act makes clear that companies are to maintain neutrality

towards the union, taking no actions which might encourage or dis-

courage employees’ union activities. The Board found that Transper-

sonnel did not abide by these rules when dealing with its employees.

We may not have come to the same conclusion if we were viewing

this case in the first instance, but the Board’s finding had support in

the record and therefore should be sustained. Because I would uphold

the Board’s findings with respect to the April 6 meeting, I have no

reason to reach the other alleged violations of the Act. I would thus

enforce the Board’s order and deny the cross-petition for review.