Tenneco Automotive, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2012 Decided May 28, 2013

No. 11-1314

TENNECO AUTOMOTIVE, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

LOCAL 660, INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF

AMERICA, UAW,

INTERVENOR

Consolidated with 11-1353

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Gregory J. Utken argued the cause for petitioner. With

him on the briefs was Brian R. Garrison.

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Glenn M. Taubman was on the brief for amicus curiae

Lonnie Tremain in support of petitioner.

Greg P. Lauro, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the brief

were John H. Ferguson, Associate General Counsel, Linda

Dreeben, Deputy Associate General Counsel, Jill A. Griffin,

Supervisory Attorney, and Jeffrey Burritt, Attorney.

Stephen A. Yokich argued the cause and filed the brief for

intervenor. Barbara J. Hillman entered an appearance.

Before: ROGERS and TATEL, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: This case arises from a

protracted labor dispute between Tenneco Automotive, Inc.

(“Tenneco” or “Company”) and Local 660, International

Union, United Automobile, Aerospace, and Agricultural

Implement Workers of America, UAW (“Union”). Tenneco

designs, manufactures, and sells automotive products. From

1945 until December 4, 2006, Tenneco recognized the Union

as the exclusive bargaining agent for a unit of production and

maintenance employees at the Company’s Grass Lake,

Michigan facility. In 2004, Union and Company

representatives pursued negotiations in an effort to reach a

new collective bargaining agreement to replace the one that

expired on May 12, 2004. Negotiations failed, however, and

the Union called a strike on April 26, 2005. Tenneco

continued operations by hiring permanent replacements, using

employees who decided not to participate in the strike, and

contracting out work to another employer.

Relations between the parties soured during the strike and

a number of incidents arose that brought the parties before the

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National Labor Relations Board (“NLRB” or “Board”). The

Union filed unfair labor practice charges with the Board on

February 1 and 15, 2006. On February 10, 2006, some

bargaining unit employees filed a decertification petition with

the Board. That petition was held in abeyance pending

resolution of the Union’s unfair labor practice charges.

However, on December 4, 2006, a substantial majority of the

unit employees presented another petition for decertification

to the Company. Based on this second decertification petition,

Tenneco gave notice that it would no longer recognize the

Union as the employees’ bargaining agent.

In the matter before the Board, the NLRB’s General

Counsel sought to prove that Tenneco had committed multiple

violations of Section 8 of the National Labor Relations Act

(“Act”), 29 U.S.C. § 158, including, inter alia: Section 8(a)(1)

for directing employees not to say or do anything that could

“evoke a response” from other employees; Sections 8(a)(1)

and (3) for disciplining employee Joseph Helton because of

his pro-Union Activities; and Sections 8(a)(1) and (5) for

refusing to provide the Union with information regarding the

possible installation of video cameras in the workplace,

unilaterally promulgating a rule requiring supervisory

approval prior to the posting of signs, letters, or printed

material at the Company’s facility, and withdrawing

recognition of the Union. The Administrative Law Judge

(“ALJ”) found that some of Tenneco’s challenged conduct

violated the Act, but rejected many of the claims advanced by

the NLRB’s General Counsel. See Tenneco Auto., Inc., 2008

WL 1786082 (Apr. 16, 2008). Most significantly, the ALJ

concluded the employees’ disaffection with the Union was not

attributable to Tenneco’s unfair labor practices and, therefore,

the Company’s withdrawal of recognition was lawful as of

December 4, 2006. Id. (citing Master Slack Corp., 271

N.L.R.B. 78 (1984)). The General Counsel and the Union

filed exceptions to the ALJ’s findings, and the Board ruled for

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the Union on all unfair labor practice charges. With regard to

the withdrawal of recognition, the Board held “that certain of

the[] unfair labor practices tainted the [employees’] petition

[for decertification], and that the withdrawal of recognition

was therefore unlawful.” Tenneco Auto., Inc., 357 N.L.R.B.

No. 84, 2011 WL 4590190, at *9 (Aug. 26, 2011). Tenneco

now petitions this court for review, and the Board cross-

petitions for enforcement of its order.

We grant Tenneco’s petition for review with respect to

the charge relating to the Company’s withdrawal of

recognition. On the record before the court, there is no

substantial evidence that the Company’s unfair labor practices

“significantly contribute[d]” to the employees’ petition for

decertification. See Williams Enters., Inc. v. NLRB, 956 F.2d

1226, 1234 (D.C. Cir. 1992). However, with respect to the

remaining disputed unfair labor practice charges, we grant the

Board’s cross-application for enforcement. Although the

Company has raised vigorous challenges to the Board’s

holdings, we find substantial evidence to support the Board’s

determinations that Tenneco’s conduct violated Sections

8(a)(1), (3), and (5) of the Act. See Bally’s Park Place, Inc. v.

NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011) (“[T]he Board is to

be reversed only when the record is so compelling that no

reasonable factfinder could fail to find to the contrary.”).

I. Background

A. Facts

Tenneco has a prototype engineering facility at Grass

Lake, Michigan, where the Union represented between thirty

and forty employees. On April 26, 2005, following failed

collective bargaining negotiations, the Union commenced an

economic strike. Some employees resigned from the Union

and chose not to strike. The Union excused one unit

employee, Joseph Helton, and allowed him to continue

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working during the strike. Ten employees resigned from the

Union and crossed the picket line during the strike. As the

strike continued, Tenneco hired sixteen permanent

replacements for strikers.

On August 29, 2005, Union Representative James Walker

was informed that Tenneco planned to install video cameras

in its test lab due to alleged incidents of tampering with

Company property. The Union contended that installation of

video devices in the workplace is a mandatory subject of

bargaining and requested documentation of the alleged

tampering so that it could bargain effectively. Tenneco never

responded and ultimately decided against the installation of

video cameras.

On January 19, 2006, while the strike was still ongoing,

Helton wore a tee shirt to work displaying the slogan, “Thou

Shall Not Scab.” Company Supervisor Dan Eggleston told

Helton to change his shirt because, he believed, some

employees would not like the message. Instead, Helton

covered the word “scab” with a piece of tape on which he had

written the word “steal,” so that the slogan read, “Thou Shall

Not Steal.” Eggleston objected to this message and told

Helton to tape over the word “steal.” Helton taped over

“steal” and wrote the words “be a low life” on the new piece

of tape. Eggleston again objected, and ordered Helton to tape

over the slogan and leave it blank. After further discussion,

Helton and Eggleston agreed that Helton should go home for

the day. The next day, Helton received a written reprimand

for wearing the “scab” slogan on his shirt and then altering

the message to “goad fellow employees inappropriately and

unnecessarily.” Br. for NLRB at 9.

On January 27, 2006, Walker requested information

about the persons hired as striker replacements, including

their home addresses. Tenneco declined to provide the

addresses because of concerns that the Union might use the

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information to harass or intimidate the replacement workers at

their homes. Tenneco sent a letter reminding the Union that it

already had multiple means of communicating directly with

replacements by posting notices on the Union bulletin board

and by having the Union President, Vice President, and

Steward (all of whom were working in the Company facility)

interact with the replacements before and after working hours

and during breaks. The Union later explained that, because

the replacements were permanent employees and thus

members of the unit, it needed the contact information to be

able to communicate with these employees about working

conditions, collective bargaining proposals, grievances, and

other representational matters. Walker claimed that “mailing

addresses are the only practical way for the Union to

communicate with these bargaining unit members in a private

fashion that cannot be monitored by Tenneco.” Br. for NLRB

at 10.

On January 27, 2006, after ten months of striking, the

Union made an unconditional offer to have the striking

employees return to work. The first four strikers returned on

February 6, 2006, and Company Manager, Mark Kortz, held a

meeting with all employees at the start of the shift. The work

force then consisted of permanent striker replacements,

returning strikers, and employees who had previously

abandoned the strike. During his presentation, Kortz

instructed the employees to refrain from inciting tensions. He

amplified by saying that employees should “not . . . engage in

taunting, verbal or physical threats, or in other conduct that is

confrontational or meant to evoke a response from a co-

worker.” Tenneco Auto., Inc., 2011 WL 4590190, at *7. Kortz

also instructed employees not to post items in their work areas

without approval. He made no reference to postings on

bulletin boards. Following the February 6, 2006 meeting,

Union officers posted items on bulletin boards, including

notices of Union meetings, and employees also continued to

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post items on the employee bulletin board. Union officers also

communicated directly with the striker replacements without

interference.

On December 4, 2006, an employee presented Tenneco

with a petition signed by seventy-seven percent of the

employees (twenty-four out of the thirty-one bargaining unit

employees) asking Tenneco to withdraw recognition from the

Union. After verifying the signatures on the petition, Tenneco

notified the Union that it had received the petition and that it

was withdrawing recognition of the Union.

B. Proceedings Below

After the Union filed unfair labor practice charges, the

Board’s Regional Director issued a consolidated complaint

against Tenneco on July 31, 2007. The complaint alleged that

Tenneco, throughout the course of the strike and upon its

withdrawal of Union recognition, had committed multiple

violations of Sections 8(a)(1), (3), and (5) of the Act. 29

U.S.C. § 158(a)(1), (3), (5).

In October, 2007, a three-day hearing was held before an

ALJ. The ALJ found that Tenneco’s denial of the Union’s

request for the replacement workers’ home addresses was

permissible; that the discipline of Helton over the tee shirt

incident did not constitute an unfair labor practice; that

Kortz’s instruction not to “evoke a response” was reasonable;

that Kortz did not create a new posting rule without first

consulting with the Union; and that, while Tenneco’s denial

of the Union’s request for information about the installation

of security cameras violated the Act, “under the

circumstances,” the violation was “very close to de minimus

[sic],” because the cameras were never installed. Tenneco

Auto., Inc., 2008 WL 1786082. The ALJ credited several

other allegations of unfair labor practices that were not

discussed by the Board and are not before this court. Most

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significantly, the ALJ concluded that Tenneco’s withdrawal

of Union recognition on December 4, 2006, was lawful. The

ALJ predicated his decision on an application of “the Master

Slack analytical framework [for] determining whether there is

[a] causal relationship between the unfair labor practices and

the employees’ disaffection with the Union.” Id. (relying on

Master Slack, 271 N.L.R.B. at 84). In the ALJ’s view, such a

causal relationship was lacking.

On August 26, 2011, the Board rejected most of the

ALJ’s proposed findings. The Board agreed with the ALJ that

Tenneco’s failure to respond to the Union’s request for

information about the proposed installation of a security

camera was an unfair labor practice; however, the Board

rejected the ALJ’s characterization of that violation as de

minimis because the request was still relevant at the time it

was made. Tenneco Auto., Inc., 2011 WL 4590190, at *2. The

Board found that Tenneco’s failure to provide the replacement

workers’ home addresses violated the Act because there was

no “clear and present danger” that the Union would misuse

the information. Id. at *3-4. The Board also found that

Tenneco’s discipline of Helton for the tee shirt incident

violated the Act because “Helton’s protected conduct was a

motivating factor in the Respondent’s decision to issue the

discipline, and . . . the evidence fails to show that the

Respondent would have disciplined Helton in the absence of

his protected activity.” Id. at *4-6.

The Board also held that Kortz’s direction to employees

not to say or do anything that could “evoke a response”

constituted another violation of the Act. The majority opinion

for the Board noted:

The dissent suggests that the only reasonable

interpretation of Kortz’s statement is as a directive

against threatening conduct not protected by the Act. In

so doing, however, it ignores the fact that the statement

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was made in the context of Kortz describing the work

force in terms of strike status—those who crossed the

picket line, permanent replacements, and reinstated

strikers. Given this context, and absent any reference to

unprotected employee conduct, it is simply not

reasonable to conclude that employees would narrowly

interpret the statement to exclude all Section 7 activity.

Id. at *8 (referring to 29 U.S.C. § 157, which protects the

right of employees “to engage in other concerted activities for

the purpose of collective bargaining”). The Board further held

that Kortz’s announcement about the posting of signs in the

workplace violated the Act because Tenneco’s “longstanding

practice allowed employees to freely post materials without

obtaining prior approval,” and thus “Kortz’s announcement

declared a substantial change to this past practice.” Id. at *8.

In light of these findings, the Board concluded that

Tenneco improperly withdrew recognition of the Union. The

Board rejected the ALJ’s application of Master Slack and

concluded “that certain of the[] unfair labor practices

[committed by Tenneco] tainted the petition” for

decertification. Id. at 9. Because the Board found that the

employer’s illegal conduct was responsible for the

employees’ disaffection with the Union, it held that the

withdrawal was unlawful. Id. at 9-10.

Tenneco now petitions this court for review of the

Board’s decision and the NLRB and the Union have cross-

applied for enforcement.

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II. Analysis

A. Standard of Review

“As we have noted many times before, our role in

reviewing an NLRB decision is limited. We must uphold the

judgment of the Board unless, upon reviewing the record as a

whole, we conclude that the Board’s findings are not

supported by substantial evidence, or that the Board acted

arbitrarily or otherwise erred in applying established law to

the facts of the case.” Wayneview Care Ctr. v. NLRB, 664

F.3d 341, 348 (D.C. Cir. 2011). We owe “substantial

deference” to inferences drawn by the Board from the factual

record. Halle Enters., Inc. v. NLRB, 247 F.3d 268, 271 (D.C.

Cir. 2001). “When the Board concludes that a violation of the

[Act] has occurred, we must uphold that finding unless it has

no rational basis or is unsupported by substantial evidence. It

is not necessary that we agree that the Board reached the best

outcome in order to sustain its decisions. The Board’s

findings of fact are conclusive when supported by substantial

evidence on the record considered as a whole.” Bally’s Park

Place, 646 F.3d at 935 (citations and quotations omitted).

Furthermore, substantial evidence review does not

change when the Board disagrees with the ALJ. Local 702,

IBEW v. NLRB, 215 F.3d 11, 15 (D.C. Cir. 2000). In such

situations, the Supreme Court has instructed that an ALJ’s

findings should not be given “more weight than in reason and

in the light of judicial experience they deserve.” Universal

Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951). This

means “that evidence supporting a conclusion may be less

substantial when an impartial, experienced [ALJ] who has

observed the witnesses and lived with the case has drawn

conclusions different from the Board’s than when [the ALJ

and the agency have] reached the same conclusion.” Id.

However, an ALJ’s findings “are to be considered along with

the consistency and inherent probability of testimony,” and

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the significance of the findings will depend “largely on the

importance of credibility in the particular case.” Id. When the

Board and ALJ disagree, the Board’s obligation is to “make

clear the basis of its disagreement.” Local 702, IBEW, 215

F.3d at 15. “[S]ince the Board is the agency entrusted by

Congress with the responsibility for making findings under

the statute, it is not precluded from reaching a result contrary

to that of the [ALJ] when there is substantial evidence in

support of each result, and is free to substitute its judgment

for the [ALJ]’s.” Id.

The obligation of the reviewing court is to assess the

“whole record,” meaning that our analysis must consider not

only the evidence supporting the Board’s decision but also

“whatever in the record fairly detracts from its weight.”

Universal Camera Corp., 340 U.S. at 488; see also CitiSteel

USA, Inc. v. NLRB, 53 F.3d 350, 354 (D.C. Cir. 1995). A

reviewing court must “ask whether a reasonable mind might

accept a particular evidentiary record as adequate to support a

conclusion.” Dickinson v. Zurko, 527 U.S. 150, 162 (1999).

B. Insubstantial Challenges Raised by the Company

As noted above, the parties’ dispute has narrowed to six

contested issues. Those issues are whether the Company

committed unfair labor practices when (1) it disciplined

employee Joseph Helton because of his pro-Union activities;

(2) refused to provide the Union with the home addresses of

the striker-replacement employees; (3) refused to provide the

Union with information regarding the planned installation of

video cameras in the workplace; (4) directed employees not to

say or do anything that could “evoke a response” from other

employees; (5) unilaterally promulgated a rule requiring

supervisory approval prior to the posting of material at the

Company’s facility; and (6) withdrew recognition of the

Union. We grant the Board’s cross-petition for enforcement

as to the first five charges. The Board’s decision on these

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matters speaks for itself and needs no amplification by the

court. See W.C. McQuaide, Inc. v. NLRB, 133 F.3d 47, 49

(D.C. Cir. 1998) (noting that there is no reason for the court to

address certain disputed matters when “the company’s . . .

challenges are met by sufficient evidence in the record to

support the Board's findings”).

After careful review of the record and the parties’

arguments, we uphold the Board’s findings that:

[Tenneco] violated Section 8(a)(1) of the Act by directing

employees to refrain from saying anything to each other

that might be deemed offensive or evoke a response from

another employee. [Tenneco] violated Section 8(a)(3) and

(1) of the Act by issuing a written warning to employee

Joseph Helton because of his support for and activities on

behalf of the Union. [Tenneco] violated Section 8(a)(5)

and (1) of the Act by (a) Failing and refusing to furnish

the Union with requested information regarding the

planned installation of video cameras . . . . (c) Failing and

refusing to furnish the Union with requested information

concerning the home addresses of the . . . permanent

replacement employees. . . . (e) Promulgating a rule

requiring supervisory approval prior to the posting of

signs, letters, or printed material . . . .

Tenneco Auto., Inc., 2011 WL 4590190, at *11. These

findings are supported by substantial evidence and are

consistent with established precedent.

We now turn to the Board’s finding that Tenneco

committed an unfair labor practice when it withdrew

recognition of the Union. Because, for the reasons indicated

below, we find no substantial evidence to support this charge,

we grant the Company’s petition for review.

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C. Tenneco’s Withdrawal of Union Recognition

When an employer has objective evidence that a union

has lost majority support, such as “a petition signed by a

majority of the employees in the bargaining unit,” it may

unilaterally withdraw recognition. Highlands Hosp. Corp. v.

NLRB, 508 F.3d 28, 31 (D.C. Cir. 2007) (quoting Levitz

Furniture Co. of the Pac., 333 N.L.R.B. 717, 725 (2001)). But

an employer may not rely on an employee petition “when the

employer’s unfair labor practices significantly contribute to

the loss of majority status by undercutting the employees’

support of the union.” Williams Enters., 956 F.2d at 1234.

The Board has explained that “not every unfair labor

practice will taint evidence of a union’s subsequent loss of

majority support.” Lexus of Concord, Inc., 343 N.L.R.B. 851,

852 (2004). Thus, the Board has the burden of adducing

substantial evidence to support its finding that an employer’s

unfair labor practices have “significantly contributed” to the

erosion of a union’s majority support. See Quazite Div. of

Morrison Molded Fiberglass Co. v. NLRB, 87 F.3d 493, 496

(D.C. Cir. 1996). In Master Slack, the Board set out a four-

factor test to determine whether “the unfair labor practices . . .

have caused the employee disaffection [with the Union] or at

least had a meaningful impact in bringing about that

disaffection.” 271 N.L.R.B. at 84. The Board’s four-factor

test, which we have endorsed, includes consideration of:

(1) The length of time between the unfair labor practices

and the employee petition; (2) the nature of the unfair

labor practices, including whether they are of a nature

that would cause a detrimental or lasting effect on the

employees; (3) the tendency of the unfair labor practices

to cause employee disaffection with the union; and

(4) the effect of the unlawful conduct on the employees’

morale, organizational activities, and membership in the

union.

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Williams Enters., 956 F.2d at 1236 (citing Master Slack, 271

N.L.R.B. at 84)).

Both the ALJ and the Board applied the Master Slack

factors and arrived at opposite conclusions. However, the

Board’s judgment is infirm because it disregards material

evidence that belies any causal relationship between the

Company’s unfair labor practices and the employees’ petition

for decertification. Recognizing that “[t]he substantiality of

evidence must take into account whatever in the record fairly

detracts from its weight,” Universal Camera Corp., 340 U.S.

at 488, we conclude that on the record before us the Board’s

determination is not supported by substantial evidence.

First, it is highly significant that ten months passed

between the last credited unfair labor practice and the

submission of the employees’ petition for decertification.

“The length of time between the unfair labor practices and the

withdrawal of recognition” is the first of the four Master

Slack factors, 271 N.L.R.B. at 84, and it is obviously an

important consideration. This temporal factor typically is

counted as weighty only when it involves a matter of days or

weeks. See, e.g., Bunting Bearings Corp., 349 N.L.R.B. 1070,

1072 (2007) (eight to fifteen days was “close temporal

proximity”); Miller Waste Mills, Inc., 334 N.L.R.B. 466, 468

(2001) (“close temporal proximity” when unfair labor

practices occurred two to six weeks before petition for

withdrawal). However, a lapse of months fails to support, and

typically weighs against, a finding of close temporal

proximity. See, e.g., Garden Ridge Mgmt., Inc., 347 N.L.R.B.

131, 134 (2006) (five-month delay weighed against finding

that unfair labor practices caused employee sentiment against

Union); Lexus of Concord, Inc., 343 N.L.R.B. at 852 (no

temporal proximity when lapse was three months). Here, even

the NLRB admitted in its decision that ten months is “a

relatively long period.” Tenneco Automotive, Inc., 2011 WL

15

4590190, at *10. The Board maintained, however, that “the

nature of some of the violations would tend to have a lasting

detrimental effect on the employees’ view of the Union,”

particularly Tenneco’s refusal to provide the addresses of the

replacement workers. Id. In the Board’s view, this and other

unfair labor practices “depriv[ed] the Union of opportunities

to meaningfully address any lingering feelings of disconnect

that would naturally exist in the aftermath of a contentious

and divisive strike.” Id. But for reasons explained below, the

cited conduct did not constitute the type of unfair labor

practices that the Board has historically characterized as

“detrimental or lasting.”

The second Master Slack factor is “the nature of the

illegal acts, including the possibility of their detrimental or

lasting effect on employees.” 271 N.L.R.B. at 84. The third

factor is “any possible tendency to cause employee

disaffection from the union.” Id. These factors obviously are

related because unfair labor practices that have a lasting

effects on employees are likely to be serious enough to cause

disaffection with a union. The NLRB relied on four alleged

unfair labor practices to show these adverse consequences:

Tenneco’s refusal to provide the Union with the addresses of

replacement employees; Kortz’s admonition to employees to

avoid having discussions that could “evoke a response”; the

requirement that employees obtain supervisor permission

before posting materials in the Company facility; and

Tenneco’s discipline of union advocate Helton. See Tenneco

Auto., Inc., 2011 WL 4590190, at *9-10. No violation of the

Act is insignificant; but these violations were hardly

“hallmark violations that were highly coercive and likely to

remain in the memories of employees for a long time.” Goya

Foods of Fla., 347 N.L.R.B. 1118, 1121 (2006).

The Board has consistently held that the types of

violations that have detrimental and lasting effects are those

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involving coercive conduct such as discharge, withholding

benefits, and threats to shutdown the company operation. See,

e.g., id. at 1121-22 (discharging three union adherents and

suspending another were “hallmark violations”); JLL Rest.,

Inc., 347 N.L.R.B. 192, 193 (2006) (threatening employees

with closure and job loss); Beverly Health and Rehab. Serv.,

Inc., 346 N.L.R.B. 1319, 1328-29 (2006) (discharging active

union supporter and unilaterally changing hours and

vacation); Overnite Transp. Co., 333 N.L.R.B. 1392, 1394

(2001) (hallmark violations included “the granting of an

unprecedented wage increase, as well as threats that

employees would lose their jobs and that the Employer would

close if the employees selected the Union”). The unfair labor

practices alleged in this case do not rise to these levels.

This court has agreed with the Board that “the unilateral

implementation of changes in working conditions has the

tendency to undermine confidence in the employees’ chosen

collective-bargaining agent.” Vincent Indus. Plastics, Inc. v.

NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000). However, to be

considered “hallmark violations,” such unilateral changes

must normally involve the “issues that lead employees to seek

union representation,” particularly employee earnings. Goya

Foods, 347 N.L.R.B. at 1122; see also M & M Auto. Grp.,

Inc., 342 N.L.R.B. 1244, 1247 (2004) (taint found where the

employer’s “unilateral changes involved the important, bread-

and-butter issues of wage increases and promotions for which

employees seek and gain union representation”). Considered

against this standard, the unilateral changes in workplace

policy cited by the Board – a new rule regarding the posting

of materials in the workplace and an admonition to avoid

having hostile discussions that could “evoke a response” from

other employees – did not risk having a “detrimental or

lasting effect on employees.” Master Slack, 271 N.L.R.B. at

84. Indeed, the record makes it clear that both employees and

Union officials continued to post notices on bulletin boards

17

without first obtaining permission from the Company; and

Union officials freely talked with unit employees about work

conditions and Union activities without interference from the

Company.

Nor did the discipline of Helton rise to the level of

“detrimental or lasting.” Helton received only a mild

reprimand in the form of written counseling. And this was the

only disciplinary action recorded prior to the Company’s

withdrawal of Union recognition. See Tenneco Auto., Inc.,

2008 WL 1786082.

Likewise, there is no substantial evidence that Tenneco’s

failure to supply the replacements’ home addresses had

detrimental effects of the sort that the Board has described in

cases involving “hallmark violations.” Union officials worked

in the Company facility, the bargaining unit was relatively

small, and Union officials had routine and easy access to all

unit employees. This access did not excuse the Company’s

failure to provide the Union with the addresses of the striker

replacements, but there is nothing in the record to indicate

that the Company’s failure resulted in “detrimental or lasting”

effects sufficient to cause a large majority of the employees to

sign a decertification petition.

The Board also failed to establish by substantial evidence

that the alleged unfair labor practices in this case actually

prevented communications between the employees and the

Union. Thus, the Board fails to satisfy the fourth Master Slack

factor by articulating what, if any, effect “the unlawful

conduct [had] on employees morale, organizational activities,

and membership in the union.” 271 N.L.R.B. at 84. The Board

claims that the alleged unfair labor practices were particularly

problematic because they “illustrate[] the [Company’s]

hostility toward the free expression of employee views about

union matters, and show[] a determination to prevent the

occurrence of protected prounion speech in its workplace.”

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Tenneco Auto., Inc., 2011 WL 4590190, at *10. But the

evidence does not support this claim. The Union introduced

testimony that “the Company’s new rules effectively stifled

both the Union’s and the employees’ ability to discuss union

related matters.” Tenneco Auto., Inc., 2008 WL 1786082.

However, the ALJ discredited this testimony and found as a

factual matter that between the bulletin board and direct

conversations, “the Union had ample opportunity to present to

the replacements its side of the strike, the need for union

representation, and the progress of the negotiations that were

ongoing.” Id. Indeed, the ALJ found that “the returning

strikers could and did speak amicably and about union matters

with some of the replacement workers while at work.” Id. The

Board never rejected the ALJ’s credibility determinations

regarding this testimony.

We do not hold that “hallmark violations” are always

necessary to satisfy Master Slack. Nor do we mean to hold

that an employer’s interference with communications between

a union and unit employees cannot have a detrimental or

lasting effect on employees. Rather, we simply hold that, on

this record, there is no substantial evidence to support the

Board’s finding of a causal relationship between the

Company’s unfair labor practices and the employees’ petition

for decertification.

In addition, the Board’s assessment of the facts leading

up to the withdrawal petition is self-contradictory. At one

point in its opinion, the Board asserts that the Company’s

conduct “significantly interfered with protected speech among

its employees.” Tenneco Auto., Inc., 2011 WL 4590190, at

*10. Yet, elsewhere the Board explained that “the record

reveals that at least some replacement employees were on

friendly terms with the union officials who were reinstated

after the strike.” Id. at 3. Given the small size of the company

facility (which facilitated communications between the Union

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and unit employees) and the failure of the Board to address

the ALJ’s finding that the employees had ample opportunity

to communicate with and about the Union, the Board has not

met its burden under the substantial evidence standard to

prove a causal connection.

Finally, it is noteworthy that the ALJ heard and credited

testimony from nine of the petition-signing employees that

“the Company had done nothing to influence their decision.”

Tenneco Auto., Inc., 2008 WL 1786082. We understand that

such testimony is not necessarily dispositive because it may

be nothing more than the product of employer intimidation.

Nevertheless, such testimony must be assessed on a case-by-

case basis, especially when an ALJ has made credibility

findings. See Universal Camera Corp., 340 U.S. at 496 (“The

significance of [the ALJ’s] report, of course, depends largely

on the importance of credibility in the particular case.”). The

Board is free to reject the ALJ’s determinations, but it must

“make clear the basis of its disagreement.” Local 702, IBEW,

215 F.3d at 15. After listening to the employees’ testimony,

the ALJ found that

the General Counsel did not establish that the [petition]

signers’ disaffection with the Union was attributable to

the [unfair labor practice] allegations that had been

pending for over a year. In point of fact, it would be my

finding and conclusion that the [unfair labor practices] in

this case had essentially nothing to do with the signers’

decision to petition for withdrawal of recognition of the

Union. . . . [A]s I observed and heard them, [the

employees’] morale as such was elevated based on their

decision to disassociate from the Union.

Tenneco Auto., Inc., 2008 WL 1786082. The Board, in turn,

simply ignored the signing employees’ testimony without any

explanation. Because the Board never explained any basis for

disagreement with the ALJ’s findings, we have taken the

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findings into account in assessing whether there is substantial

evidence to support the Board’s judgment.

The foregoing considerations, in combination, forcefully

contradict the Board’s errant conclusion – based on a

shortsighted assessment of the evidence – that Tenneco

violated the Act when it withdrew recognition of the Union.

Considering the whole record, we think it apparent that

substantial evidence does not support the Board’s finding that

Tenneco’s conduct tainted the decision of the employees’ to

sign a petition for decertification.

D. The Board’s Affirmative Bargaining Order

The Board ordered Tenneco to, inter alia, “recognize

and, on request, bargain with the Union as the exclusive

collective-bargaining representative of the employees in the

bargaining unit.” Tenneco Auto., Inc., 2011 WL 4590190, at

*12. The Board determined “that an affirmative bargaining

order is warranted in this case as a remedy for the

[Company’s] unlawful withdrawal of recognition.” Id. Before

this court, the Board argues that “Tenneco failed to challenge

this bargaining order before the Board, and therefore the

Court lacks jurisdiction to consider Tenneco’s challenge to

the remedy now.” Br. for NLRB at 58 (citing Section 10(e) of

the Act, 29 U.S.C. § 160(e)). We disagree.

Before the Board, Tenneco clearly opposed the unfair

labor practice charge based on its alleged withdrawal of

recognition. And the Company preserved this challenge in its

petition for review in this court. The Board’s decision makes

it clear that the sole basis for the Board’s bargaining order is

Tenneco’s alleged “unlawful withdrawal of recognition.”

Because we have found that no substantial evidence supports

the Board’s finding of an unfair labor practice, there is no

longer any basis for the bargaining order. Obviously, the

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sanction for an unfair labor practice cannot survive once the

Board’s finding of an unfair labor practice has been reversed.

III. Conclusion

With respect to its withdrawal of recognition, we grant

Tenneco’s petition for review and deny the Board’s cross-

application for enforcement. The Board’s decision regarding

the withdrawal of recognition is reversed and the

accompanying bargaining order is vacated.

Tenneco does not contest the Board’s findings that it

violated Section 8(a)(5) and (1) of the Act by refusing to

provide the Union with requested information concerning

Joseph Helton’s discipline and work performed by an outside

contractor during the strike, and refusing to process Steven

Prysianzy’s grievance to the third step. We therefore grant the

Board’s request for summary enforcement of its Order with

respect to these violations. With respect to the other unfair

labor practice charges at issue in this case, we deny Tenneco’s

petition for review and grant the Board’s cross-application for

enforcement.