Sullivan Industries v. National Labor Relations Board, United Steelworkers of America, Afl-Cio, Intervenor

SILBERMAN, Circuit Judge,

concurring in part and dissenting in part:

I agree that. substantial evidence supports the Board’s determination that New *906 Sullivan committed an unfair labor practice when it refused to bargain with the union in August. But the second issue in- this case can be analyzed a good deal more manageably than does the majority, and once that is done, I think our reviewing role is more modest than my colleagues assume. The question presented under the National Labor Relations Act, 29 U.S.C. §§ 151-169 (NLRA), is, at its core, rather straightforward: if a successor employer refuses to recognize and bargain with an incumbent union in violation of section 8(a)(5), id. § 158(a)(5), can the Board order the employer to bargain with the union notwithstanding indications, manifested subsequent to the illegal refusal, that a majority of employees no longer wish the union to represent them? As the majority recognizes, this is a remedial issue. We recently observed en banc that:

When a federal court of appeals reviews an administrative agency’s choice of remedies to correct a violation of a law the agency is charged with enforcing, the scope of judicial review is particularly narrow. Almost fifty years ago the Supreme Court, in reviewing a National Labor Relations Board remedial choice, explained why:

Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board’s discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.

National Treasury Employees Union v. FLRA, 910 F.2d 964, 966-67 (D.C.Cir.1990) (en banc) (quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 , 61 S.Ct. 845, 852 , 85 L.Ed. 1271 , (1941)); accord NLRB v. Gissel Packing Co., 395 U.S. 575 , 612 n. 32, 89 S.Ct. 1918 , 1939 n. 32, 23 L.Ed.2d 547 (1969) (“In fashioning its remedies under the [NLRA], the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts.”).

It is fair to contend that the Board has not explained, as clearly as it could,, its position on the issue — at least as it is presented in this case — although the Board is not required to distinguish other cases that are inapposite. I feel obliged to dissent, however, because I think the Board’s path is discernible, see Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 , 95 S.Ct. 438, 442 , 42 L.Ed.2d 447 (1974), and, more important, because the majority opinion appears to question the Board’s remedial judgment.

I see no reason why the Board may not decide, as it did here, that a successor employer’s illegal refusal to recognize and bargain with a union necessarily taints a subsequent employee petition expressing dissatisfaction with the union and that the employer, therefore, may not use the petition to .defend against a bargaining order. By so doing, the Board simply puts all parties, including the employees, back in the position in which they would have found themselves had the employer not violated the law. This is not an inevitable remedial choice, but it is hardly an irrational or unorthodox one. The traditional remedy for a section 8(a)(5) violation is an order to cease and desist from refusing to bargain and affirmatively to bargain with the union, see C. Morris, The Developing Labor Law 1663 (2d ed. 1983); the Board imposed, just this remedy in every successor employer case cited by the majority. See Manna Pro Partners, L.P., 364 N.L.R.B. No. 104, at 16-17 (1991); Transportation Equip. Servs., Inc. d/b/a/ Bay Area Mack, 323 N.L.R.B. 125 , 134-35 (1989) (Bay Area Mack); Western Distrib. Co. d/b/a Western-Davis Co., 236 N.L.R.B. 1224 , 1227 (1978), enforcement denied on other grounds, 608 F.2d 397 (10th Cir.1979); First Food Ventures, Inc., 229 N.L.R.B. 1228, 1231 (1977); Ponn Distrib., Inc., 223 N.L.R.B. 312 , 316 (1977), enforcement denied on other grounds sub nom. NLRB v. Cott Corp., 578 F.2d 892 (1st Cir.1978). But cf. Williams Enters. v. NLRB, 956 F.2d 1226, 1235 (D.C.Cir.1992) (“[W]e find no Board decision declaring that a bargaining order is the standard remedy in the successorship context let alone explaining and justifying the basis for such a rule.”).

*907 The majority’s lengthy discussion of the significance of New Sullivan’s fleeting recognition of the union in October, followed virtually immediately by the employee petition and New Sullivan’s volte-face, see Maj. Op. at 897-903, seems to me a diversion. Whether or not the employer’s October behavior indicated a pure heart or was in fact a clever ruse is largely beside the point. The case would present the same remedial issue vis-á-vis the August refusal to bargain if the employee petition had been presented in October without any intervening action one way or the other by New Sullivan. That appears to be the way the ALJ (and the Board, which adopted the AU’s conclusions) saw it:

[By] withholding union recognition until October ..., the Respondent improperly undermined the union’s majority status thereby tainting the employee petition. As the Respondent was not at liberty to rely on that tainted petition, I find that its [October] withdrawal of recognition was violative of Section 8(a)(5) as alleged.

Sullivan Indus., Inc., 302 N.L.R.B. No. 23, at 12-13 (1991). The majority believes there is a “significant difference” between a petition filed in the face of a continuing refusal to recognize and one filed hours after the employer changes its mind and extends recognition; in the former case, the majority supposes, the employees do not want the union because of the employer’s attitude, whereas in the latter, the employees really do not want the union. Maj. Op. at 902 n. 4. I would have thought we would leave such nice appraisals of employee motivation to the agency whose expertise Congress commissioned. 1

The majority also discusses several Board and court cases that explore the circumstances under which an employer who commits various unfair labor practices other than a refusal to bargain may still claim a good faith doubt as to a union’s majority status and therefore lawfully refuse to bargain with the union. See, e.g., Master Slack Corp., 271 N.L.R.B. 78 , 84 (1984); Olson Bodies, Inc., 206 N.L.R.B. 779 , 784-85 (1973); see also St. Agnes Medical Center v. NLRB, 871 F.2d 137, 145-47 (D.C.Cir.1989) (remanding for determination whether an employer’s unfair labor practices tainted a subsequent election in which employees voted to decertify the union). These decisions are really not in point. In this case the Board determined, and we affirm, that New Sullivan illegally refused to recognize and bargain with the union in August. That sort of conduct could be thought inevitably to undermine the union’s status so as to taint a subsequent petition manifesting employee dissatisfaction with the union. Under these circumstances, therefore, it is quite open to the Board to hold that, as a matter of remedial law, it simply will not consider the petition as relevant, because it is difficult to imagine how the employer’s illegal refusal to recognize the union would not undermine the union’s status in the eyes of the employees. As we have recently observed with respect to violations of section 8(a)(3), 29 U.S.C. § 158 (a)(3) (which makes discrimination on the basis of unión membership unlawful), “[s]ome conduct speaks for itself.” Teamsters Local Union Nos. 822 & 592 v. NLRB, 956 F.2d 317, 319 (D.C.Cir.1992).

The Board has made the point in several decisions that the majority takes considerable pains to distinguish. For example, Bay Area Mack , citing Master Slack — the case that, according to the majority, together with Olson Bodies sets forth the factors the Board considers when deciding whether an employer’s unfair labor practices caused employees’ dissatisfaction with the union— quite categorically states:

Any “objective considerations” relied on by an employer to ground a good-faith refusal to recognize an incumbent union must themselves arise in a context free of any unfair labor practices which might meaningfully tend to cause employees to become disaffected with the incumbent union. See, e.g., Master Slack Corp., 271 NLRB 78 , 84 (1984). A successor- *908 employer’s refusal to honor a proper union recognitional demand will be deemed, in itself, an unlawful act which fatally taints a later antiunion petition from employees which might otherwise support a claim of good-faith doubt about the union’s majority status.

Id. at 131 (additional citation omitted); accord Manna Pro Partners, 304 N.L.R.B. at 11-12; see also Ponn, 232 N.L.R.B. at 315 & n. 11 (quoting Olson Bodies to support a conclusion that, where the predecessor employer unlawfully refused to bargain with the union, a successor could not rely on an employee decertification petition to justify not bargaining with the union); First Food Ventures, 229 N.L.R.B. at 1230 n., 12 (stating that a successor employer’s reliance on an employee petition “is vitiated by its preexisting unlawful refusal to bargain and, accordingly, is entitled to no weight”). That the employer in Bay Area Mack “not only failed to recognize the union but maintained throughout the period that [it] would never bargain with the union,” Maj.Op. at 901, and committed unfair labor practices in addition to the refusal to bargain, see id. at 902-03 , was inconsequential to the Board’s determination: the decision unequivocally says that a refusal to bargain “in itself ... fatally taints a later antiunion petition from employees” (emphasis added).

Indeed, this very proposition has been recognized by the Supreme Court. In Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 , 107 S.Ct. 2225 , 96 L.Ed.2d 22 (1987), the Court observed that a successor employer’s refusal to bargain with the existing union “ ‘disrupts the employees’ morale, deters their organizational activities, and discourages their membership in unions.’” Id. at 49-50 , 107 S.Ct. at 2239 (quoting Franks Bros. Co. v. NLRB, 321 U.S. 702, 704 , 64 S.Ct. 817, 818 , 88 L.Ed. 1020 (1944)). It also said:

“[O]nce. it has been determined that an employer has unlawfully withheld recognition of an employees’ bargaining representative, the employer cannot defend against a remedial bargaining by pointing to an intervening loss of employee support for the union when such loss of support is a foreseeable consequence of the employer’s unfair labor practice.”

Id. 482 U.S. at 51 n. 18, 107 S.Ct. at 2240 n. 18 (quoting NLRB v. Fall River Dyeing & Finishing Corp., 775 F.2d 425, 433 (1st Cir.1985)). I think it sufficiently clear that the Board, in its discretion, has reasonably concluded that loss of employee support for a union is a “foreseeable consequence” of a successor employer's illegal refusal to bargain.

The majority, nevertheless, suggests (but does not hold) that unless the Board were to determine that New Sullivan had in some way fomented the employees’ petition other than by illegally refusing to recognize the union in August, the Board faces some analytical difficulty in applying what the majority refers to as a “per se rule.” That is apparently why my colleagues are unwilling to accept the Board’s terse reasoning at face value. The source of the majority’s concern seems to be a 1980 decision of this court, Peoples Gas System, Inc. v. NLRB, 629 F.2d 35 (D.C.Cir.1980). Peoples Gas does not control this case, however, because, as the majority recognizes, see Maj. Op. at 903 n. 6, the intervening event between the unlawful refusal to bargain and the Board’s remedial order in that case was a Board election in which the employees rejected the union. These unusual circumstances occurred because the Board dismissed the unfair labor practice charge — which otherwise would have blocked the election, , see Peoples Gas, 629 F.2d at 39 n. 5 — and reversed itself post-election following a remand from this court. See id. at 40-41. The decision was expressly limited to the “singular factual situation,” NLRB v. Creative Food Design Ltd., 852 F.2d 1295, 1303 (D.C.Cir.1988), presented. See Peoples Gas, 629 F.2d at 50 (“If any of these facts were altered, we would be more willing to defer to the Board_” (emphasis added)).

Although Peoples Gas is distinguishable, 2 the majority is justified in believing *909 that the logic of that case supports the approach it takes here. Peoples Gas expressed discomfort with the Board’s view that a bargaining order was an appropriate remedy for an unlawful refusal to bargain notwithstanding a subsequent indication of employee dissatisfaction with the union. We thought that, in light of the decertification election, which was a “clear, un-coerced” statement of employees’ views, id. at 48, the Board had shown too little concern for the employees’ section 7 right, see 29 U.S.C. § 157 , not to join a union. See Peoples Gas, 629 F.2d at 45-51. But we have since made clear that our decision rested on the “explicit and definitive expression of employee preference” that the election represented, Creative Food Design, 852 F.2d at 1303 , and accordingly have declined to apply Peoples Gas when “there is no reason why the Board should doubt the union’s support.” Id. at 1304 . Of course, no basis for doubt exists here; the only “evidence” that New Sullivan’s employees no longer want union representation is a petition that the Board has held to be irrelevant.

I would not extend Peoples Gas to this case for another reason: I think it is in tension with subsequent governing legal developments. Since 1980, the Supreme Court and this court have developed a body of law, see, e.g., Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), that calls for greater deference than used to be given to agency interpretation of general or imprecise statutory terms; 3 and, as noted above, an agency’s choice of remedy receives the greatest deference. We are not permitted to second guess the policy decisions implicit in the Board’s choices. A careful reading of Peoples Gas reveals just that sort of excessive judicial review. By relying so heavily on Peoples Gas and by emphasizing the importance of the employee petition, the court comes perilously close to suggesting to the Board that it has not struck the appropriate balance between the interests of unions and the right of employees to engage in collective bargaining, on one hand, and employees’ right not to unionize, on the other. The majority seems to object to the Board’s order because, in its view, the employer’s conduct is really not so objectionable; it might be thought only a minor unfair labor practice. See Maj.Op. at 903 n. 5 (quoting Gissel for the proposition that “minor or less extensive unfair labor practices ... will not sustain a bargaining order”). If so, this would not be any longer (if it ever was) a legitimate exercise of judicial review of the Board’s remedial orders. 4

To be sure, in Gissel the Supreme Court said that any and all unfair labor practices will not automatically justify the issuance of a bargaining order, see 395 U.S. at 613-15 , 89 S.Ct. at 1939-41 , and this Court has required explanation of Board bargaining orders used to remedy employers’ unfair labor practices other than a refusal to bargain when those practices have tainted a union election and made a fair rerun election impossible. See, e.g., Avecor, Inc. v. NLRB, 931 F.2d 924, 932-39 (D.C.Cir.1991), ce rt. denied, — U.S.-, 112 S.Ct. 912 , 116 L.Ed.2d 812 (1992); St. Agnes *910 Medical Center, 871 F.2d at 142-49 . But the problem raised in those cases is different in kind from the one presented by our case (or Peoples Gas). This is so because “[t]he normal cure for an unfair election is a fair election,” Avecor, 931 F.2d at 935 , and bargaining orders in Gissel-type cases are thus extraordinary remedies requiring special justification. The classic remedy for a refusal to bargain, however, is a bargaining order; there is thus no apparent reason to force the Board to further explain its choice.

I therefore disagree with the course adopted by the Fifth Circuit in Texas Petrochemicals Corp. v. NLRB, 923 F.2d 398 (5th Cir.1991), which, on the authority of Peoples Gas, stayed the Board’s bargaining order and called for an election, see id. at 405-06 — a result that afforded the Board even less deference than does the majority’s decision here. For similar reasons, I cannot accept the distinction drawn by the majority, see Maj.Op. at 903, and by a different panel in Williams, 956 F.2d 1226 , 1237-38 between an order directing a successor employer to cease and desist from refusing to bargain and an order requiring the employer affirmatively to bargain. Williams says that the latter carries a decertification bar, while the former does not, and that a cease-and-desist order without a decertification bar is the “proper” remedy for a successor employer’s refusal to bargain. Id. at 1238 . The Board, as I have said, regularly imposes the two remedies together when a successor employer unlawfully refuses to recognize an incumbent union, and, given our limited reviewing role, I cannot imagine that it is appropriate for us to sever them. To suggest that only a cease-and-desist order is appropriate is to imply necessarily that the employees should be able to get rid of the union more readily, and I think that it is for the Board to make that kind of judgment.

We are, of course, entitled to remand to an agency for an adequate explanation of its position so that meaningful judicial review is possible. It is important that we do so only on those occasions when we really do not perceive the rationale for agency action — not when we are merely uncomfortable with an agency’s determination. It is often difficult for us to draw that line in practice, and, in any given case, a judge’s conclusion that an agency’s explanation is inadequate may depend a great deal on his or her view of the substantive law applied by the agency. In any event, I take considerable solace from my colleagues’ assurances that they would be satisfied with a somewhat more direct and forceful explanation of the Board’s position, though I would approve the one the Board has given us.

. If I were permitted to draw upon my own experience, I would suggest that an employee’s perception of the desirability of a union is never unaffected by his or her appraisal of the employer’s view.

. As the majority acknowledges, see Maj.Op. at 903 n. 6, a formal secret ballot election under *909 Board auspices is a more reliable indicator of employee sentiment than is an employee petition.

. The remedial provision involved in this case is quite general. Section 10(c) of the NLRA broadly states that when the Board finds that a person has committed an unfair labor practice, the Board "shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the Act.]” 29 U.S.C. § 160 (c).

. I am reminded of a similar controversy in Conair Corp. v. NLRB, 721 F.2d 1355 (D.C.Cir.1983), ce rt. denied, 467 U.S. 1241 , 104 S.Ct. 3511 , 82 L.Ed.2d 819 (1984), in which the majority rejected a Board bargaining order designed to remedy concededly "outrageous" and "pervasive" unfair labor practices because the union had never demonstrated majority support. Id. at 1377-84. The dissent, arguing that the bargaining order should be enforced, criticized the majority for “usurp[ing] for themselves a mighty responsibility in emasculating the Board’s remedial authority in extreme cases to fulfill its Congressional mandate to ‘effectuate the policies of the Act.’ ” Id. at 1388 (Wald, J., dissenting).