Overnite Transportation Co. v. National Labor Relations Board

NIEMEYER, Circuit Judge,

dissenting:

In representation elections at all four of the Overnite Transportation Company work sites that have been made the subject of this case — Lawrenceville, Georgia; Louisville, Kentucky; Norfolk, Virginia; and Bridgeton, Missouri — the Union lost. Finding that the outcomes of these elections were affected by unfair labor practices, the National Labor Relations Board, instead of ordering new elections, issued “category II” Gissel orders, as authorized by NLRB v. Gissel Packing Co., 395 U.S. 575, 613-14 , 89 S.Ct. 1918 , 23 L.Ed.2d 547 (1969), directing Overnite to bargain with the Union despite the fact that: (1) the elections had taken place over four years before; (2) approximately 40% of Over-nite’s workforce had since left its employ; and (3) the Board had certified as fair the elections during the same period at numerous other sites. 1 Explaining why bargaining orders, instead of new elections, were necessary, the Board stated, “it is difficult to believe that the impression made by [Overnite’s] barrage of serious unlawful conduct ... could have dissipated in the minds of those employees ... and that the virulence of [Overnite’s] response to the previous election campaign would not restrain employee free choice in second elections.” J.A. 1613.

On review of the Board’s order, the majority opinion, rather than reviewing the order against the standards applicable in this circuit for review of Gissel orders, see Be-Lo Stores v. NLRB, 126 F.3d 268 (4th Cir.1997); NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988 (4th Cir.1979) (“Apple-tree I”), merely reiterated, in expanded form, the Board’s position, concluding that it agrees with the Board. Unfortunately, in adopting this approach, the majority has denied Overnite the review to which it is entitled under our precedent. When measured against our precedent, it becomes readily apparent that the Board could not justify, on this record, its determination to issue mandatory bargaining orders in lieu of ordering new elections. See Be-Lo, 126 F.3d at 274-75.

I

It is the strong preference of our national labor policy not to impose collective bargaining representatives 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 election, not a bargaining order, remains the traditional, as well as the preferred, method for determining the bargaining agent for employees,” Appletree I, 608 F.2d at 996 , “the extraordinary and drastic remedy of forced bargaining pursuant to [Gissei] is reserved for only the most unusual cases.” Be-Lo, 126 F.3d at 273 (internal quotation marks and citations omitted). We have concluded that in this disfavored situation — where an employer is directed to bargain without the benefit of an election — the Board must “support its order with detailed record evidence” and not with the recitation of “conclusions by rote without factual explanation.” Id. (quoting Appletree I, 608 F.2d at 997 ). Thus, “[w]hile we accord the Board respect as to its choice of remedies because of its presumed expertise, we exercise less deference and require scrupulous specificity from the Board when it issues mandatory *347 bargaining orders on the authority of [Gis- sel].” Id. at 274 (internal quotation marks and citations omitted).

II

In this case, the Board did not, and could not on the evidence in the record, fulfill the requirements for scrupulous specificity demanded by our precedents. Indeed, if its analysis had been complete, it would have had to come to terms with the fact that Overnite’s national policies could not have supported Gissel orders at four locations when elections were certified as fair at numerous other locations. A few examples of the Board’s analysis amply demonstrate its lack of specificity.

It is to be recalled that the elections took place in the spring of 1995. The relevant misconduct took place in that time frame, as well as during Overnite’s introduction of a national wage and benefits increase in the spring of 1996. Because several years passed before the Board issued its order directing Overnite to bargain with the Union, the Board was required to “make a detailed analysis assessing the possibility of holding a fair election in terms of any continuing effect of misconduct, and the potential effectiveness of ordinary remedies.” Appletree I, 608 F.2d at 997 (internal quotation marks and citations omitted). We noted in Be-Lo that “the adverse effects of all but the most egregious unfair labor practices become dissipated with the passage of time,” 126 F.3d at 282 (internal quotation marks and citations omitted), and that the alternative remedy of a new election is much preferred, id. at 274. In this case, the Board could not have found, and did not find, the misconduct so “egregious” as to justify a “category I” Gissel order. It likewise could not and did not conduct the detailed analysis required for a “category II” order. Rather, it dismissed any such requirement with the simple conclusion that it had “considered the inadequacy of other remedies.” J.A. 1615; see also J.A. 1614 (containing the Board’s comment, without demanding direct evidence, that the passage of time in this case was shorter than that found in other cases to render a Gissel order “stale”).

In the same vein, despite our instruction that the Board “carefully analyze, in rec.ord findings, the continuing impact” of the 1995-96 violations, Be-Lo, 126 F.3d at 281 (internal quotation marks and citations omitted), the Board could not make such findings on this record where such evidence is lacking. Consequently, the Board simply observed as a matter of logic that the wage increases of 1995 and 1996 “regularly appear in employees’ pay checks,” and constitute “a continuing reminder that ‘the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if not obliged.’ ” J.A. 1611 (quoting NLRB v. Exchange Parts Co., 375 U.S. 405, 409 , 84 S.Ct. 457 , 11 L.Ed.2d 435 (1964)). It does not explain how these wage increases could affect some locations — the four in question here — but not others where it approved elections in favor of the Union.

Again, on employee turnover, the Board ignored the law of this circuit. In Be-Lo we noted “that 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.” 126 F.3d at 282 (internal quotation marks and citations omitted). We explained that when former employees have moved on and new workers have been hired, the issuance of a bargaining order “risks unjustly binding new employees to the choices made by former ones.” Id. at 282-83 (quoting J.L.M., Inc. v. NLRB, 31 F.3d 79 , 84 (2d Cir.1994)). Notwithstanding this state of the law in our circuit, the Board declined to open the record for Ov-ernite’s proffered evidence of an employee turnover of approximately 40%. The Board stated that it “traditionally does not consider turnover among bargaining unit employees in determining whether a bargaining order is appropriate.” J.A. 1613. *348 It went on to rationalize its decision by concluding generally, again without factual support in the record, that the 60% of the employees who still worked for Overnite would continue to recall the misconduct and “new employees may well be affected by the continuing influence of [Overnite’s] past unfair labor practices.” J.A. 1613. 2

Finally, the Board relied on precedent that we have rejected. We have noted that “[a]bsent substantial evidentiary support that the effects of unlawful practices have in fact continued to be felt in the workplace, we believe that such inferences as to the likely effect of ‘lore of the shop’ have no place in the calculus of whether a mandatory bargaining order is warranted.” Be-Lo, 126 F.3d at 283. Despite this ruling, the Board has chosen to follow a contrary Fifth Circuit ease, Bandag, Inc. v. NLRB, 583 F.2d 765, 772 (5th Cir.1978), in which that court indicated that “[practices may live on in the lore of the shop and continue to repress employee sentiment long after most, or even all, original participants have departed.” The Board relied on this case without even citing the Fourth Circuit’s Be-Lo decision, which governed. J.A. 1613.

In short, the Board has explicitly rejected material requirements that we have imposed for issuing Gissel orders in this circuit, and the majority opinion in this case, unfortunately, has not only approved, sub silentio, the Board’s approach, it has parroted the Board’s conclusory statements in order to affirm.

Ill

Because Gissel bargaining orders bypass the democratic process, the approval of such drastic orders without satisfying ourselves that new elections could not remedy the unfair labor practices found by the Board leads to an undermining of a fundamental labor law policy of democratic representation. For these reasons I would grant Overnite’s petition for review and deny the Board’s cross-petition for enforcement. Accordingly, I respectfully dissent.

. The General Counsel had sought Gissel bargaining orders at 17 locations where the Union had lost representation elections, but a settlement resolved most of the disputes. The General Counsel dismissed three or four other complaints because the Union concluded it could win new elections at those sites.

. This generalized statement makes little sense when it is recognized that during the Union's organizing effort, it won eight elections and agreed to dismissal of several of the General Counsel’s other Gissel cases because it believed it could win elections at those sites. It won three of four elections in those cases, and at the fourth, where the Union lost by two votes, the Board certified the election as fair.