Appendix — Local 222, International Ladies' Garment Workers' Union v. National Labor Relations Board

83 ~ 1 5 2 0 Supreme Court, U.S.

FILED

No. ———

bioed ARs 1964

aie ae STEVAS

Supreme Caner of the Wuited States —_

OCTOBER TERM, 1983

LOCAL 222, INTERNATIONAL LADIES’ GARMENT

WORKERS’ UNION, AFL-CIO,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD and

CONAIR CORPORATION,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Max ZIMNY

1710 Broadway

New York, New York 10019

Of Counsel :

DAVID SILBERMAN LAURENCE GOLD

1000 Connecticut Avenue, N.W. 815 16th Street, N.W.

Washington, D.C. 20036 Washington, D.C. 20006

GEorRGE KAUFMANN (202-637-5390)

2101 L Street, N.W. (Counsel of Record)

Washington, D.C. 20037

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WILSON - Eras Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

A. Opinion of the Court of Appeals 2.000.000.0000...

B. Judgment of the Court of Appeals .......0000000.....000000.....

C. Decision and Order of the National Labor Relations

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 82-1623

CONAIR CORPORATION, PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

LOCAL 222, INTERNATIONAL LADIES’ GARMENT

WORKERS’ UNION, AFL-CIO, INTERVENOR

Petition for Review of an Order of the

National Labor Relations Board

Argued July 6, 1983

Decided November 15, 1983

Herbert Burstein for petitioner. Randy Lewis Levine

and David A. Kapelman also entered appearances for

petitioner.

Marjorie S. Gofreed, Attorney, National Labor Rela-

tions Board, with whom Elliott Moore, Deputy Associate

General Counsel, National Labor Relations Board, was

on the brief, for respondent. Paul Spielberg, Attorney,

National Labor Relations Board, also entered an appear-

ance for respondent.

Maz Zimny, with whom Jesse H. Strauss, Sidney Reit-

man, Bennet D. Zurofsky, Laurence Gold, and David M.

Silberman, were on the brief, for intervenor.

Carl L. Taylor and Stephen A. Bokat were on the brief

for the Chamber of Commerce of the United States,

amicus curiae urging that the order be set aside.

Gerard C. Smetana was on the brief for the Council on

Labor Law Equality, amicus curiae urging that the order

be set aside.

Michael E. Avakian was on the brief for Center on

National Labor Policy, amicus-ewriae urging that the or-

der be set aside.

Before: WALD, GINSBURG, and SCALIA, Circuit Judges.

Opinion for the Court in parts I-V.B filed by Circuit

Judge GINSBURG.

Opinion for the Court in part V.C filed by Circuit

Judge WALD.

Dissenting opinion filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge GINSBURG.

Separate concurring statement filed by Circuit Judge

GINSBURG.

GINSBURG, Circuit Judge: This case presents a contro-

versial question in federal labor relations law. Centrally

at issue is the scope of authority Congress accorded the

National Labor Relations Board (NLRB or Board) un-

der the National Labor Relations Act (NLRA or Act)

to issue a bargaining order when an employer has com-

mitted “ ‘outrageous’ and ‘pervasive’ unfair labor prac-

tices . . . of ‘such a nature that their coercive effects

cannot be eliminated by the application of traditional

8a

remedies, with the result that a fair and reliable [repre-

sentation] election cannot be had.’”* The Supreme Court

so described a category of cases in NLRB v. Gissel Pack-

ing Co., and thereby opened the question whether a

bargaining order might issue to redress the employer’s

grave misconduct even though the union involved never

received authorization cards from a majority of the bar-

gaining unit employees and lost a representation election.”

We confront here the situation the Supreme Court de-

scribed but did not decide in Gissel: the employer engaged

in “outrageous” and “pervasive” unfair labor practices;

the union never achieved a card majority, it did not other-

wise demonstrate majority support, and it lost the repre-

sentation election; the NLRB, in a three to two decision,

issued a bargaining order.

On December 7, 1977, Local 222 of the International

Ladies’ Garment Workers’ Union (Union) lost a repre-

sentation election among the production and maintenance

employees of Conair Corporation (Conair or Company).

Joint Appendix (J.A.) 583a-84a. In administrative pro-

ceedings brought by the Board’s General Counsel to set

aside the results of the election and to remedy the Com-

pany’s unfair labor practices, an Administrative Law

Judge (ALJ) found that Conair had engaged in “out-

rageous” and “pervasive” unfair labor practices. Conair

Corp., 261 NLRB 1189, 1285 (1982). The ALJ’s pro-

posed order directed Conair to implement extraordinary

notice and access remedies, including a requirement that

Conair’s president personally read the NLRB’s remedial

notice to an assemblage of the company’s employees. The

ALJ declined to recommend a bargaining order, however,

because the union never obtained authorization cards from

a majority of the bargaining unit employees. Jd. at 1284-

85 & n.451 (noting that the NLRB had not yet issued a

bargaining order absent a card majority).

1 NLRB v. Gissel Packing Co., 895 U.S. 575, 618-14 (1969).

3 See id.

4a

The Board affirmed the ALJ’s findings of fact, amend-

ing them only to include a finding that Conair had actu-

ally discharged its striking employees on April 22, 1977.

Id. at 1189-90. Adopting the notice and access remedies

proposed by the ALJ, the Board further ruled that Con-

air’s “massive and unrelenting coercive conduct” war-

ranted imposition of a bargaining order. Jd. at 1192-94.*

Conair has challenged the NLRB’s decision.

We conclude that Conair did not receive fair notice of,

and opportunity to respond to, a claim that it actually

discharged striking employees on April 22, 1977; we

therefore decline to enforce the Board’s order in that

particular. On the central issue, we hold that Congress

has not empowered the Board to issue a bargaining order

absent a concrete manifestation of majority employee

assent to union representation; we therefore decline to

enforce the NLRB’s bargaining order. In all other re-

spects, we deny Conair’s petition for review and grant

the Board’s cross-petition for enforcement of its order.

On two issues, the panel is divided: (1) the NLRB’s

authority to issue a nonmajority bargaining order; and

(2) the requirement that Conair’s president personally

read the NLRB’s remedial notice to an assemblage of em-

ployees. Judge Wald, for the reasons stated in her dis-

senting opinion, would enforce the Board’s bargaining

order. For the reasons stated in Part V.C of this opinion,

written by Judge Wald, the court upholds the Board on

the presidential reading issue. Judge Ginsburg dissents

on this issue; she would allow Conair’s president, if he so

elects, to designate a responsible officer to read the re-

medial notice on his behalf.

* Subsequent to the ALJ’s decision, the Third Circuit held in

United Dairy Farmers Coop. Ass’n v. NLRB, 683 F.2d 1054

(3d Cir. 1980), that the NLRB had the authority to issue a

nonmajority bargaining order to remedy “outrageous” and

“pervasive” employer unfair labor practices. The Board

issued such an order on remand in that case. See United

Dairy Farmers Coop. Ass’n, 257 NLRB 772 (1981).

ee

5a

I. BACKGROUND

Conair is engaged in the manufacture, sale, and dis-

tribution of hair care, personal grooming, and related

products. At all times relevant to this controversy, Con-

air maintained its administrative offices, conducted ware-

housing and distributional operations, and produced elec-

trical hair care appliances at the Company’s facility in

Edison, New Jersey. 261 NLRB at 1203-04. When the

events at issue occurred, the Edison plant employed 300

unit workers. Jd. at 1285 n.451.5 Most of these employees,

it appears, were Spanish speaking. Jd. at 1208 n.81,

1268 n.369.

In March of 1977,° the Union began an organizational

campaign at Conair’s Edison plant. Jd. at 1205. In early

April, shortly after becoming aware of the Union’s cam-

paign, the Company conducted a series of unprecedented

management-employee meetings in direct response to the

Union’s efforts. Jd. at 1262, 1265. Conair Vice-Presidents

John Mayorek and Jerry Kampel held a meeting for all

unit employees in the plant’s cafeteria on April 4. Jd. at

* As set out infra pp. 20-22, we reject Conair’s challenge to

the credibility determinations and findings of fact made by

the ALJ, and affirmed by the Board. We therefore summarize

the ALJ’s factfindings in this background statement, Cita-

tions to 261 NLRB in Part I refer to the ALJ’s opinion,

rather than the Board’s opinion, unless otherwise indicated

by the context.

5 As described by the ALJ, the bargaining unit included:

All production and maintenance employees including

shipping and receiving employees, warehouse employees,

truck drivers and janitorial maintenance employees .. .

at [the] Edison plant, but excluding all office clerical

employees, plant clerical employees, professional em-

ployees, uards and supervisors as defined in the [Na-

tional Labor Relations] Act.

261 NLRB at 1259-60.

* All events described herein occurred during 1977, unless

otherwise noted.

6a

1205. At that meeting, Mayorek indicated that the Com-

pany knew of the organizational campaign. He then

pointed out the benefits provided by the Company in the

past, id. at 1205-08, cautioned that certain current bene-

fits would be lost with unionization, id. at 1205-08, 1267,"

and promised that in the future the Company would pro-

vide a variety of benefits—many directly responsive to

employee complaints aired at the meeting. Jd. at 1205-

08, 1264 & n.851, 1272. Mayorek further informed the

employees that the Company had an “open-door” policy—

previously unknown to most, if not all, employees—

whereby they could bring grievances directly to man-

agerial personnel.® This direct access to management also

would be lost with unionization, he warned. Jd. at 1205-

08, 1262-638. Kampel reiterated much of what Mayorek

said. Jd. at 1208, 1267, 1272."

On April 6, Conair President Leandro Rizzuto addressed

a second mass meeting of unit employees held in the pro-

duction area. His remarks tracked the earlier remarks

of Mayorek and Kampel. President Rizzuto stated that

7 Mayorek stated that only nonunion employees could par-

ticipate in Conair’s profit sharing plan, and that the Union

would provide a health insurance plan inferior to the plan

Conair offered. 261 NLRB at 1268.

* Mayorek promised an improved wage and benefits package,

the hiring of a bilingual personnel director to deal with

worker complaints, installation of a new water fountain, and

expansion of the cafeteria to provide hot and cold meals. /d.

at 1272. All but the last of these promised benefits answered

complaints employees expressed at the meeting. Jd. at 1264

& n.361.

®*The ALJ doubted that Conair had an “open-door” policy

prior to the April 4 meeting. Jd. at 1262-63.

10 An interpreter translated Mayorek’s and Kampel’s re-

marks into Spanish. Conair similarly provided Spanish trans-

lations of the remarks made at the April 6 mass meeting

described below. Jd, at 1206, 1210.

Ta

he could not understand why the employees would want

to unionize; he then recited current benefits, cautioned

that unionization would result in the loss of certain bene-

fits," and promised various additional benefits in the

future. Jd. at 1210-12, 1267-68, 1273.% Rizzuto warned

that if he had to pay the increased wages the Union

would demand, he would go out of business. Jd. at 1210-

12, 1267-68. He also stressed that, without a union, em-

ployees were free to bring complaints directly to super-

visory and managerial personnel; with a union, he said,

someone would have to represent workers before manage-

ment, resulting in delay. Jd. at 1211-12, 1267-68.

Later that same day, Rizzuto, Mayorek and Kampel

held several meetings with groups of ten to fifteen em-

ployees during which they again spoke of current and

future benefits, and of the “open-door” policy. Rizzuto

stated at the small group sessions that if a union came

in, it would be cheaper to move to Hong Kong than to

remain in Edison. Jd. at 1214-15, 1268, 1273."* Kampel

promised to deal with several employee complaints aired

at these meetings. Jd. at 1214-15, 1273.

11 These included the profit sharing plan and Christmas

parties and gifts. Jd. at 1267-68.

12 In addition to the benefits promised on April 4, see supra

note 8, Rizzuto promised that the security guard’s negative

attitude toward the employees, of which they had complained,

would change. Jd. at 1273.

18 At the time Rizzuto spoke of moving, Conair already

participated as a joint venturer in a Honk Kong production

facility for electrical hair care appliances. Jd. at 1204.

14 Kampel promised to provide gloves to protect assembly-

line workers’ hands and to investigate the allegedly unfair

discharge of a worker, Jd, at 1216, 1278.

In contacts with small groups or individual employees, var-

jous supervisory personnel reiterated points Conair officials

had made at the early April meetings. See id, at 1267 (closing

8a

In response to Conair’s extraordinary management-

employee meetings, the Union called an unfair labor prac-

tice strike on the morning of April 11. Jd. at 1217, 1277.**

Approximately 125-140 unit employees participated in the

strike that morning,’* and over 100 remained at the pliant

to picket. Jd. at 1218, 1277. The strike continued for

over five months, ending on September 23. Disorganized

picketing and numerous spontaneous acts of picket line

violence ** marked the first two days. Jd. at 1219-26,

1287.1 Thereafter, apart from a few incidents during

of plant and moving to Hong Kong if Union comes in); id.

at 1273 (promise of new wage package). Supervisory per-

sonnel also interrogated two employees about their union ac-

tivities during this period. Jd. at 1275.

16QOn April 6, 25-30 unit employees went to the Union hall

to report on the various meetings. Some of these employees

asked for return of their authorization cards, stating that

they did not want to lose their jobs. The Union assured them

that Conair’s actions had been illegal and the next day told

a meeting of 50-60 unit employees that they could strike to

protest the Company’s actions. Upon receiving an enthusiastic

response from the assembled employees, and thereafter fur-

ther exploring its options, the Union resolved to call the

strike. Id. at 1217, 1277.

16 Approximately 100 unit employees remained away from

work and participated in picketing during the entire strike.

Id. at 1217 n.738.

17 These included rock and bottle throwing, tire slashing,

name calling, threats against nonstriking workers, minor in-

juries to nonstrikers, damage to the nonstrikers’ automobiles,

and damage to plant property. Jd. at 1287.

18 On April 18, Conair secured a state court injunction (con-

sented to by the Union, J.A. 306a) limiting the Union to a

total of 10 pickets and forbidding the pickets from interfering

with employees or vehicles seeking entry into or exit from the

plant. J.A. 278a-75a. This injunction was vacated on May 16.

J.A. 591a-92a. Conair obtained a second, similar injunction

on July 21 that remained in effect until the end of the strike.

J.A. 301la-08a, 319a-21a.

9a

the week of July 18,” no significant picket line mis-

conduct occurred. Jd. at 1287.”

On April 13, the Union initiated two administrative

actions: it petitioned the Board for certification as unit

representative, J.A. 579a-80a;*' and it filed an unfair

labor practice charge against Conair based on the early

April meetings. J.A. 27la-72a. The Union and the Com-

pany then entered into a stipulation to hold a consent

election among all unit employees on Conair’s payroll as

of April 9. J.A. 581a-83a." This election, originally

scheduled for May 6, was postponed on May 5 pending

The primary incident occurred during the evening of

July 21 when a Roadway Express driver arrived at the Conair

plant in his personal vehicle and without any evident business

purpose. A Union official struck tre driver with a tire jack

during an argument apparently over the picketers’ previous

treatment of another Roadway Express driver. 261 NLRB at

1282-36 & n.172.

During the course of the strike a series of fires occurred at

the Edison plant and one night the windows of the executive

offices were blown out by a shot-gun. No evidence established

the Union’s complicity in these acts, however. Jd. at 1227

& n.188, 1287 & n.464.

* The ALJ based this finding in part on the extensive

videotapes Conair made of the picketers from approximately

April 18 or 14 until the end of the strike. Jd, at 1276, 1287

n.465.

1 As of April 13, at least 124 workers had signed cards

authorizing the Union to “act exclusively as [their] agent and

representative for the purpose of collective bargaining.” Id.

at 1205; J.A. 418a. The Union eventually obtained another

14 authorization cards, 261 NLRB at 1205.

#2 See NLRB Statements of Procedure, 29 C.F.R. § 101.19(b)

(1988). The stipulation provided that Local 102, International

Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America (Teamsters), which had intervened, would

also be listed on the ballot, 261 NLRB at 1205; J.A. 581a-82a;

see NLRB Casehandling Manual (Part II: Representation

Proceedings) § 11022.3(d) (1975).

10a

resolution of an unfair labor practice charge (based on

the early picket line violence) the Company had filed with

the Board on April 25. 261 NLRB at 1202 n.1; J.A.

280a-81a.”

During the course of the strike, the Company repeatedly

made it clear to the striking employees that persistence

in the concerted action would result in loss of their jobs.

On April 20, Conair sent mailgrams to the strikers stat-

ing that they would be deemed to have quit their jobs

unless they reported to work on April 22. 261 NLRB at

1237-38, 1268; J.A. 453a.% Conair subsequently sent each

striker a letter dated June 9 which, in the Spanish

version,” offered “full and immediate reinstatement .. .

if you accept unconditionally our offer to return to work.”

2° When an unfair labor practice charge that might affect

the outcome of an election is filed shortly before the election

and the NLRB finds that the charge has prima facie merit,

the usual course is to postpone the election pending resolution

of the charge or waiver by the charging party of its right to

challenge the election on the basis of the charged conduct. See

Suprenant Mfg. Co. v. Alpert, 318 F.2d 896, 397 (1st Cir.

1963).

* The mailgrams stated in full in both Spanish and English:

WE HAVE CALLED YOU REPEATEDLY TO YOUR

JOB. DESPITE YOUR PROMISES TO DO SO, YOU

HAVE FAILED TO REPORT FOR DUTY. THERE IS

NO VIOLENCE, EMPLOYEES FREELY ENTER THE

PLANT. UNLESS YOU REPORT TO WORK ON FRI-

DAY APRIL 22 1977 AT YOUR REGULAR STARTING

TIME YOU WILL BE DEEMED TO HAVE VOLUN-

TARILY QUIT YOUR JOB.

261 NLRB at 1287-88; J.A. 453a. The Union filed an unfair

labor practice charge against Conair on May 19 alleging that

the mailgrams threatened a discriminatory discharge and that

the employees were so discharged as of April 22. J.A. 285a.

*% The ALJ concluded that 75-80% of Conair’s employees

were Spanish speaking and noted that 79% of the 1977

strikers have Spanish surnames. 261 NLRB at 1268 n.369.

lla

261 NLRB at 1238-39 & n.216, 1268; J.A. 452a.”* Finally,

Conair sent letters to the strikers in July or August

stating in English and Spanish that the Company had

notified the insurance carriers for the employees’ medical

and life insurance plans that the strikers no longer worked

for Conair. 261 NLRB at 1239, 1268 & n.871; J.A.

484a.””

7° The letter stated in full in the Spanish version:

OUR TELEGRAM OF APRIL 20, 1977, IS HEREBY

RESCINDED. YOU ARE HEREBY OFFERED FULL

AND IMMEDIATE REINSTATEMENT TO YOUR

FORMER JOB OR, IF YOUR JOB NO LONGER

EXISTS, TO A SUBSTANTIALLY EQUIVALENT PO-

SITION, IF YOU ACCEPT UNCONDITIONALLY OUR

OFFER TO RETURN TO WORK.

261 NLRB at 1238-39 & n.216; J.A. 452a (emphasis added).

The English version replaced the italicized portion with “upon

your unconditional offer to return to work.” An employer

has an obligation to reinstate unfair labor practice strikers

who express their willingness to return to work. See, ¢.g.,

Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956) ;

Teamsters Local 115 v. NLRB, 640 F.2d 392, 394 (D.C. Cir.),

cert. denied, 454 U.S. 837 (1981); Jimmy Dean Meat Co., 227

NLRB 1012, 1082 (1977).

27 The letters stated in full in both Spanish and English:

Dear Employee:

You have been requested on two occasions within the

last three months, to report to work and you have failed

to do so. Under our medical and life insurance policies,

“Cessation of active service in a class of employees eligi-

ble for insurance shall be deemed termination of employ-

ment.” Consequently, we have advised the insurance com-

panies that you are not working for Conair.

You must also recognize that all accrued vacation bene-

fits have been suspended and all forms will be mailed to

you within 30 days.

261 NLRB at 1239; J.A. 484a. One insurance company sent

the strikers letters notifying them that they were no longer

12a

Meanwhile, inside the plant, the Company persisted in

its efforts to eliminate unrest among its nonstriking em-

ployees.** Conair officials, both at meetings and in re-

marks to individual employees, continued to encourage

workers to voice to management any grievances they might

have. 261 NLRB at 1226, 1257 & n.871, 1262, 1265;

J.A. 2828a. A bilingual personnel director, promised by

Mayorek on April 4, commenced employment at the Edi-

son plant on June 1. 261 NLRB at 1238. Thereafter, the

Company planned and implemented a variety of bene-

fits*—many in response to employee complaints raised

during the early April meetings. 7d. at 1246-48, 1274 &

n.392.”

covered because Conair had terminated their employment on

the ground that they had “left [their] job[s].” 261 NLRB at

1239, 1268 & n.371.

28 Throughout the strike Conair posted three large signs out-

side its plant stating in effect that Conair employees were not

on strike. 2461 NLRB at 1226, 1269. The ALJ concluded, in

light of Conair’s other actions, that these signs conveyed to

the strikers the message that they were no longer considered

by the Company as employees. 7d. at 1269.

2°On April 7, prior to the strike, Conair for the first time

gave Easter gifts to its employees. Jd. at 1216, 1274.

®% Sometime between June 1 and the end of the strike the

Company established a system for promoting current em-

ployees by bidding for jobs, id. at 1247; set up salary standards

and performance ratings, id. at 1247-48; began a newsletter,

id. at 1248; and allocated parking spaces by seniority, id.

In addition, sometime between June 1 and the representa-

tion election, the Company expanded the cafeteria to pro-

vide hot food, id. at 1246-47; instituted forma! termination and

layoff procedures, id. at 1247; established an employee credit

union, id. at 1248; organized employee social clubs, id.; im-

proved safety procedures, id.; hired a bilingual nurse, id.;

gave employees a holiday on their birthdays, id.; provided an

extra drinking fountain in the production area, id. at 1274;

and supplied gloves to the women on the assembly line, id.

Despite promises, Conair presented no new wage package

during the strike or prior to the election. On numerous occa-

13a

After a spring and summer of concerted action, the

Union informed Conair that the strike would end on

September 28; on behalf of all striking employees, the

Union made an unconditional offer to return to work on

that day. Jd. at 1240, 1277. The Company accepted the

offer but refused to reinstate the strikers immediately.

Instead, when the strikers reported to the plant on Sep-

tember 28, the Company required them to fill out job

applications. Jd. at 1240-41, 1278. During the period

from October 4 to November 7, most of the strikers re-

ceived reinstatement offers® and returned to work. Jd.

at 1241, 1279.* Conair initially offered five strikers jobs

less desirable than the ones they held before the strike,

however, and never offered reinstatement to thirteen

strikers.™

sions during the strike, Conair officials explained to the non-

striking employees that it would be illegal to offer such a

package before Conair’s labor problems were solved. Id. at

1226 & n.126, 1278.

*1 The Union responded to this refusal by filing another un-

fair labor practice charge. J.A. 341la-42a.

® Conair made the offers by means of a mailgram written in

English only and mailed a scant one to four days prior to the

date on which the employee had to report for work in order to

accept. 261 NLRB at 1241, 1278.

*% Upon returning to work, the strikers had to fill out new

tax and insurance forms. The Company wrcts “new hire” on

many of the returning strikers’ time cards and replaced the

original date of hire on several strikers’ attendance records

with the return date. Jd. at 1241-42, 1279.

* The Company refused to offer reinstatement to four em-

ployees who were arrested on the picket line and pled guilty

to obstructing passage of a motor vehicle, id. at 1242-48, 1279-

80, one employee who was arrested outside the plant and pled

guilty to loitering, id. at 1242-43, 1281, and five employees who

had responded to the June 9 letter but later rejoined the strike,

id. at 1248-44, 1281. Conair mailed offers of reinstatement to

two strikers at incorrect addresses, and failed to send an offer

l4a

On November 23, the Board approved a formal set-

tlement of the unfair labor practice charges Conair had

filed alleging picket line misconduct by the Union. J.A.

362a-66a." The representation election initially scheduled

for May 6 was thereafter rescheduled for December 7.

261 NLRB at 1202 n.1. During the two weeks prior to

the vote, supervisory personnel repeatedly stated to vari-

ous unit employees that Conair’s president would close

the Edison plant and move to Hong Kong if the Union

won the election. Jd. at 1248-51, 1269.°° Supervisors also

warned on several occasions that, in the event of a Union

to one striker. When these errors were brought to Conair’s

attention, the Company refused to correct them. Jd. Further,

Conair discharged three reinstated strikers who had taken

authorized leave. Jd. at 1244-46, 1281-82. The Union filed

unfair labor practice charges protesting these discharges.

J.A. 867a-69a.

% This settlement required the Union to cease and desist

from any further picket line misconduct and to post a notice

of the settlement for 60 days. J.A. 364a.

Conair’s original April 25 charge against the Union had

been informally settled on May 12. J.A. 282a. The Board’s

Regional Director withdrew his prior approval of the settle-

ment and issued a complaint on August 25, after the Company

filed a second unfair labor practice charge alleging further

Union violence. J.A. 322a-3la. The Union and the General

Counsel reached a formal settlement on September 1, J.A.

832a-40a, but Conair objected because, inter alia, the Union

did not admit guilt in the stipulation. J.A. 362a n.1.

** Supervisors had made similar statements to unit em-

ployees in October. 261 NLRB at 1248-49. Moreover, at a

mass meeting for unit employees held on October 26, President

Rizzuto warned that no company can give what the Union

promised and still remain in business. Jd. at 1271. Rizzuto

also stated during the October 26 meeting that the Company

could not spell out its future plans for improved benefits be-

cause the Union would object to the Board. Id. at 1278. Once

= pointed to the Company’s “open-door” policy. Id.

15a

victory, the employees would not receive their Christmas

bonuses. Jd. at 1250, 1253-54, 1270. “Raffle tickets”

inundated the plant warning that a vote for the Union

* was a vote for plant closure. 7d. at 1251-53, 1269-70."

Finally, Conair distributed campaign literature (printed

in both Spanish and English, id. at 1254) and “State-

ments of Account” declaring that the Company’s profit

sharing plan was for nonunion employees only. Jd. at

1254, 1270.

The Union lost the December 7 election by a vote of

136 to 69; ** eight votes were cast for the Teamsters ®

and forty-one ballots were challenged. J.A. 583a-84a.

On March 8, 1978, the Board’s Regional Director filed

a complaint in which he consolidated the Union’s chal-

lenge to the election with allegations drawn from the

various unfair labor practice charges the Union had filed

against Conair. 261 NLRB at 1202 & n.2; J.A. 370a-

93a.”

Hearings on the Regional Director’s complaint ran for

thirty-eight days, commencing on March 23, 1978, and

ending on June 2, 1978. 261 NLRB at 1202 & n4. On

July 30, 1980, the ALJ issued his decision and recom-

mended order. J.A. 260a. The ALJ determined that

87 These tickets stated in relevant part:

WIN AN EXCITING ALL EXPENSE PAID TRIP TO

CONAIR’S NEW FACILITIES IN BEAUTIFUL HONG

KONG. DONATION: ONE UNION VOTE

Id. at 1251. There is evidence linking the Company to the

distribution of these “raffie tickets.” Jd. at 1251, 1269-70.

58 The electorate consisted of the 300 unit employees on

Conair’s payroll as of April 9. Jd. at 1259-61, 1285 n.451.

* The Teamsters withdrew from the proceedings on Decem-

ber 19, 1977. J.A. 588a n.2.

“This complaint amended several prior complaints. See

J.A. 286a-98a, 345a-61a, 370a-98a; infra pp. 25-27.

16a

Conair had violated section 8(a)(1) of the NLRA* by

soliciting employee grievances during an organizational

campaign through means more elaborate than previously

used and with the promise (expressed or implied) that re-

ported grievances would be adjusted, 261 NLRB at 1266-

67; by threatening its employees with loss of current

benefits if they supported a union, id. at 1270-71; by

threatening its employees with plant closure if they

supported a union, id. at 1269-70; by threatening to dis-

charge its employees for engaging in protected con-

certed action, id. at 1268-69; by promising (expressly or

impliedly) and granting benefits to induce its employees

to renounce unionization, id. at 1273-75; by coercively

interrogating several employees concerning their union

activities, id. at 1275-76; and by creating the impression

that its employees’ union activities were under surveil-

lance, id. at 1276. See id. at 1288. The ALJ further de-

termined that Conair’s disadvantageous treatment of un-

fair labor practice strikers, based on their union ac-

tivities, was unlawful under both section 8(a)(1) and

section 8(a) (3) of the NLRA.* In this category of viola-

tions, the ALJ included the Company’s failure to rein-

state the strikers immediately upon their unconditional

offer to return to work, id. at 1279; its failure initially

to reinstate five strikers to positions substantially equiv-

alent to their pre-strike jobs, id. at 1279; its failure ever

to reinstate thirteen strikers, id. at 1281; and its dis-

charge of three previously reinstated strikers, id at 1282.

See id. at 1288. Conair’s 8(a)(1) and 8(a) (3) viola-

tions, the ALJ concluded, were sufficiently grave and

*1 Section 8(a) (1), 29 U.S.C. § 158(a) (1) (1976), makes

it an unfair labor practice for an employer “to interfere with,

restrain, or coerce employees” in the exercise of rights the

NLRA accords them.

“2 Section 8(a) (3), 29 U.S.C. §158(a) (3) (1976), bars

encouraging or discouraging membership in any labor organi-

zation “by discrimination in regard to hire or tenure of em-

ployment or any term or condition of employment.”

aa

17a

numerous to place the Company’s conduct within the

“outrageous” and “pervasive” category described by the

Supreme Court in Gissel. Id. at 1285.

The ALJ’s recommended order directed Conair to

cease and desist from the enumerated unfair labor prac-

tices and from violating section 8(a)(1) in any other

manner,* and to implement extraordinary notice and

access remedies. Jd. at 1283, 1285.% The ALJ declined

to recommend a bargaining order, however, because the

Union never had obtained authorization cards from a

* The ALJ’s proposed order called upon the Company to

reinstate with back pay all strikers refused reinstatement or

initially recalled and later discharged. His order also awarded

back pay to all strikers whose reinstatement was delayed.

261 NLRB at 1288; J.A. 268a-64a.

* These remedies required Conair to:

(1) Mail a notice of the remedial order (in both Spanish

and English) to all current and former employees, place

the notice in appropriate company publications, and have

President Rizzuto read the notice to all current employees;

(2) publish the notice in local newspapers for four weeks;

(8) for two years grant the Union reasonable access to plant

bulletin boards, upon request ;

(4) for two years grant the Union reasonable access to non-

work areas of the plant during the employee’s nonwork time,

upon request ;

(5) supply the Union, upon a request made within one year,

the names and addresses of curre. t employees;

(6) for two years give the Union notice of any speeches made

by the Company to its employees concerning unionization,

and equal time and facilities to respond thereto; and

(7) for two years give the Union the right to deliver a 30-

minute speech to the employees on working time prior to any

Board election in which the Union will participate.

261 NLRB at 1285.

18a

majority of the unit employees ** and the Board, at the

time of the ALJ’s decision, had never issued a nonma-

jority bargaining order. Id. at 1284-85 & n.451.

The full Board generally affirmed the ALJ’s findings

and proposed remedies. Jd. at 1189-92; id. at 1195 &

n.28 (Chairman Van de Water); id. at 1199 (Member

Hunter).*® By a divided vote, the Board also imposed a

bargaining order retroactive to April 4, 1977—the date

Conair began its campaign of unfair labor practices. Id.

at 1192-94.*7 Finally, the Board majority concluded that

the April 20 mailgram resulted in the actual discharge

of the striking employees on April 22—and thus Conair

was liable for back pay to the strikers from that date

until the end of the strike. Jd. at 1189-90 & n.5.

II. THRESHOLD ISSUES

Conair initially raises two objections and contends

that each of them warrants a decision vacating the

Board’s order in its entirety. The Company argues first,

that the timing of the representation election among

“6 The Union’s 188 cards represented 46% of the 300 unit

employees. Jd. at 1285 n.451.

*©Chairman Van de Water dissented from the Board’s

affirmation of the requirement that President Rizzuto himself

read the remedial notice to the current employees. Jd. at

1196 n.28.

‘7 Three Board members voted to impose a bargaining order.

Only two of these members, however, concluded that the

order should be retroactive to April 4; one member of the ma-

jority voted that it be prospective only. Jd. at 1194 & n.24.

Two members who opposed the bargaining order in this

case nonetheless believe that NLRB bargaining orders gen-

erally should be retroactive. We therefore accept NLRB coun-

sel’s representation to this court that the bargaining order the

Board imposed on Conair is retroactive to April 4, 1977. See

NLRB Response to the Court’s Interrogatories and Supple-

mental Brief at 1-3 (August 5, 1983) (citing cases).

19a

unit employees contravened NLRB policy and regula-

tions; and second, that credibility assessments along with

a host of other findings made by the ALJ, and adopted

by the Board, lack foundation in the record. Both ob-

jections are insubstantial.

A. Timing of the Representation Election

On September 1, 1977, the Union and the Board’s Gen-

eral Counsel reached a formal settlement of the unfair

labor practice charges alleging picket line misconduct

by the Union. J.A. 332a-40a. A term of the settlement

required the Union to post a remedial notice at its of-

fices for sixty days. J.A. 335a-36a. The Board approved

this settlement, over Conair’s objections, on November

23, 1977. J.A. 362a-65a. The representation election

was then helu on December 7, 1977. J.A. 583a.

The election occurred several weeks too soon, Conair

maintains, because the Union’s misconduct had destroyed

“laboratory conditions,’ and the Board’s own regulations

indicate that such conditions could not be restored until

expiration of the sixty-day posting period. We note first

that it is not altogether clear that NLRB policy called

for a sixty-day wait in this case. More importantly, the

error, if there was one, was harmless.

NLRB regulations do provide that, “except in ex-

ceptional circumstances, no election should be held until

the posting period has expired.” ** But “exceptional cir-

48 The relevant regulation states that, upon the settlement

of unfair labor practice charges blocking an election, the proc-

essing of the election petition may proceed. “However, except

in exceptional circumstances, no election should be held until

the posting period has expired” unless the charging party

waives its right to challenge the election on the ground that

the posting period had not expired. NLRB Casehandling

Manual (Part II: Representation Proceedings) § 11730.8

(1975) (emphasis in original). Conair never executed a

waiver. Opening Brief of Petitioner and Cross-Respondent

at 32.

20a

cumstances” may be present here. Almost all of the

Union’s misconduct occurred on April 11 and 12, 1977—

eight months prior to the December 7, 1977 election

date. 261 NLRB at 1219-26, 1287 (ALJ Opinion). The

remaining incidents of misconduct occurred during the

week of July 18, 1977—four and one-half months prior

to the election. 7d. at 1287. Moreover, the strike ended

on September 23, 1977; there had not even been a picket

line for two and one-half months prior to the election.

See id. at 1240, 1277-78. It would not have been unrea-

sonable, under these circumstances, for the NLRB to con-

clude that any effects of the Union’s picket line miscon-

duct had dissipated prior to December 7, 1977.*

In any event, Conair’s argument fails on a practical

ground. We do not comprehend how a Board-held election

arguably tainted by Union misconduct harmed Conair

when the Union lost that election. Thus, even if the

NLRB should have deferred the election date until sixty

days after the Union posted the remedial notice, Conair

is not positioned to complain. Scheduling the election

during the period the Union was required to post a cease

and desist notice did not reduce the force of the Com-

pany’s unfair labor practices at which the Board’s order

is directed.

B. Substantial Evidence Supports the ALJ’s Findings

Conair’s attack on the ALJ’s findings do not merit

extended discussion. The Company insistently urges that

we overturn the ALJ’s credibility determinations. Our

review of the record confirms that we have no cause to

do so.

* An agency, of course, should observe its own regulations,

see, e.g., Gardner v. FCC, 580 F.2d 1086, 1089 (D.C. Cir.

1976), and the cloudy position of the NLRB on the election-

timing issue suggests that the Board’s rules on holding elec-

tions during posting periods or while charges are outstanding

bear clarification.

2la

The ALJ stated that, in general, he credited the tes-

timony of the General Counsel’s witnesses over the tes-

timony of the Company’s witnesses. Jd. at 1265.°° There

is nothing inherently arbitrary, we note, in believing one

side’s witnesses and not the other’s. See Bruce Duncan

Co. v. NLRB, 590 F.2d 1804, 1809 (4th Cir. 1979) ; ef.

UAW v. NLRB, 455 F.2d 1857, 1868-69 & n.12 (D.C.

Cir. 1971) (resolving all factual conflicts in favor of

one party does not establish bias of ALJ).°' We find

no tenable basis for assigning to the ALJ’s credibility

calls in this case less weight than we generally accord

such assessments. See, e.g., Local Union No. 984, IBEW

v. NLRB, 697 F.2d 113, 117 (6th Cir. 1982); NLRB

v. Pace Oldsmobile, Inc., 681 F.2d 99, 100-01 (2d Cir.

1982). His appraisals are neither “hopelessly incredible”

nor “self-contradictory.” We therefore uphold them. See,

e.g., NLRB v. S.E. Nichols, Inc., 704 F.2d 921, 923 (6th

Cir. 1983) (uphold unless “lack[{ing] a rational basis’) ;

Mead Corp. v. NLRB, 697 F.2d 1013, 1022 (11th Cir.

1983) (uphold unless “inherently unreasonable or self-

contradictory”) ; NLRB v. American Geri-Care, Inc., 697

* The ALJ observed that the testimony of the General

Counsel’s witnesses was “in large measure ziven in a forth-

right manner, was more detailed, generally unequivocal and

clear, corroborative and consistent in nature with each other,

and most importantly apparently consistent with the other

evidence present in the record”; the testimony of the Com-

pany’s witnesses, on the other hand, was “for the most part

contradictory, evasive, guarded and quite defensive, at times

unclear and equivocal, and in some instances of such an in-

credible nature as to be unworthy of belief.” 261 NLRB at

1255. See id. at 1266 & n.358 (additional reasons for not

crediting testimony of Vice-President Mayorek).

*! The charge that the ALJ without exception disbelieved

Conair’s witnesses is less than fully accurate. For example, in

concluding that strikers engaged in misconduct during the

first two days of the strike, the ALJ credited testimony of

y+ Aaa Compare id. at 1218-19 & n.80 with id.

22a

F.2d 56, 60 (2d Cir. 1982) (uphold unless “hopelessly

incredible”), cert. denied, 103 S. Ct. 1876 (1983) ; Boston

Mutual Life Insurance Co. v. NLRB, 692 F.2d 169, 170

(1st Cir. 1982) (uphold unless beyond “the bounds of

reason”) ; see also Retail, Wholesale & Department Store

Union v. NLRB, 466 F.2d 380, 386-87 (D.C. Cir. 1972)

(NLRB finding based on testimony of two witnesses, al-

though contradicted by testimony of a third witness, af-

firmed because testimony relied on was not “hopelessly

incredible’).

Conair also contends that many of the ALJ’s findings

are not supported by substantial evidence because they

ignore contrary evidence given by credited General Coun-

sel witnesses. We have reviewed each of the examples

cited by the Company * and reject Conair’s contention.

At most, Conair has an argument that in each case ra-

tional triers of fact might have drawn conflicting con-

clusions from the testimony. Under such circumstances,

this court has no authority to upset the conclusions

reached by the ALJ and the Board. See, e.g., NLRB v.

Concord Furniture Industries, Inc., 675 F.2d 426, 428

(lst Cir. 1982); Kenworth Trucks, Inc. v. NLRB, 580

F.2d 55, 59 (3rd Cir. 1978) .*

% See Opening Brief of Petitioner and Cross-Respondent at

47-50, 52-538 (examples a, b, d, e & k).

*8 For similar reasons we reject Conair’s assertions that the

ALJ mischaracterized credited evidence, see Opening Brief of

Petitioner and Cross-Respondent at 46-47, 50-55 (“Wahler

incident” and examples f, g, j & 1), and reached conclusions

based on insufficient evidence, see id. at 49, 52, 55-56 (ex-

amples c, h,m &n). See Midwest Regional Joint Bd., Amalga-

mated Clothing Workers v. NLRB, 564 F.2d 484, 488 (D.C.

Cir. 1977) (“Our function is not to overturn the Board’s

choice between two equally plausible inferences from the facts

if the choice is reasonable... .”).

23a

III. THe Aprit 20, 1977 MAILGRAM: THREATENED

oR ACTUAL DISCHARGE

By a three to two vote, the Board held that one of the

ALJ’s conclusions of law did not reach far enough. The

ALJ had determined that Conair’s April 20, 1977, mail-

gram to striking employees threatened discharge in vio-

lation of section 8(a) (1) of the NLRA (hereafter, 8(a)

(1)).% The Board’s majority decided that the mailgram

violated section 8(a) (3) of the NLRA (hereafter, 8(a)

(3) ) as well,®* because it amounted to more than a threat;

it in fact terminated the strikers’ employment as of April

22, 1977.5 We hold that Conair was not afforded timely

*% As earlier noted, §8(a)(1), 29 U.S.C. §158(a) (1),

makes it an unfair labor practice for an employer “to inter-

fere with, restrain, or coerce employees” in the exercise of

rights the NLRA accords them.

55 As earlier noted, § 8(a) (3), 29 U.S.C. § 158(a) (3), bars

encouraging or discouraging membership in any labor organi-

zation “by discrimination in regard to hire or tenure of em-

ployment or any term or condition of employment.”

5¢ Actual discharge of unfair labor practice strikers not only

violates §8(a)(1) by “interfer[ing] with, restrain[ing], or

coerc[ing] employees” in the exercise of their right to engage

in protected concerted activity, it also discourages union mem-

bership by “discriminati[ng] in regard to hire or tenure of

employment” in violation of § 8(a) (3).

The Board’s modification of the ALJ’s decision dramatically

increased Conair’s back pay liability. The Union, by letter

and mailgram dated September 21, 1977, notified Conair of

the strikers’ unconditional offer to return to work as of Sep-

tember 23, 1977. 261 NLRB at 1277-78 (ALJ Opinion). A

company has a five-day period to reinstate nondischarged un-

fair labor practice strikers once an unconditional offer to

return is made. See Drug Package Co., 228 NLRB 108, 118-

14 (1977). The ALJ therefore concluded Conair violated

8 8(a) (1) and § 8(a) (3) when, five days after the uncondi-

tional offer was made (September 26, 1977), the Company

had not reinstated anyone. 261 NLRB at 1279 (ALJ Opinion).

Eighty-one strikers were reinstated from October 4, 1977 to

24a

notice that the issue presented by the mailgram was

actual, not merely threatened, discharge. Accordingly, we

reverse the Board’s determination that the mailgram epi-

sode violated 8(a) (3).

A. Background

On April 20, 1977, Conair sent a mailgram to each of

its striking employees, stating in both English and

Spanish:

WE HAVE CALLED YOU REPEATEDLY TO

RETURN TO YOUR JOB. DESPITE YOUR

PROMISES TO DO SO, YOU HAVE FAILED TO

REPORT FOR DUTY. THERE IS NO VIO-

LENCE, EMPLOYEES FREELY ENTER THE

PLANT. UNLESS YOU REPORT FOR WORK

ON FRIDAY APRIL 22 1977 AT YOUR REGU-

LAR STARTING TIME YOU WILL BE DEEMED

TO HAVE VOLUNTARILY QUIT YOUR JOB.

J.A. 458a. No striking employees reported to work in

response to this mailgram. See 261 NLRB at 1238 (ALJ

Opinion). The Union asserted, in an unfair labor prac-

tice charge filed against Conair on May 19, 1977," that

November 7, 1977. The ALJ’s proposed order required Conair

to make whole those striking employees for wages lost during

the period from September 26, 1977, to “the date of a bona fide

offer of reinstatement by [Conair], or their actual] reinstate-

ment as the case may be.” /d. at 1288.

Actually discharged unfair labor practice strikers, how-

ever, are entitled to back pay from the date of discharge—

25a

the mailgram episode violated 8(a)(1) and 8(a) (3).

J.A. 285a. Specifically, the Union charged:

On or about April 20, 1977, and continuing to date,

[Conair], by its officers and agents, threatened its

employees with discharge, and on April 22 dis-

charged said employees, because of their activities on

behalf of Local 222, ILGWU, ... and for their pro-

tected concerted activities. The foregoing employees

consisted of those employees who have supported and

are supporting the strike called by Local 222.

J.A. 285a (emphasis added).

The first official unfair labor practice complaint was

lodged against Conair by the Board’s Regional Director

on May 31, 1977.°* It covered unfair labor practices

April 13, 1977. J.A. 27la-72a. On the same day, the Union

also filed a petition for certification of representation in Case

No. 22-RC-7119. J.A. 579a-80a. The second charge, Case No.

22-CA-7672, involving the mailgram allegation, was filed on

May 19, 1977. J.A. 285a. The NLRB Regional Director’s

initial complaint, filed on May 31, 1977, alleged only those

violations contained in the first charge by the Union. See J.A.

286a-93a.

The Union filed the third charge in Case No. 22-CA-7939 on

September 29, 1977, J.A. 341a-42a; the Acting Regional Di-

rector’s first amended complaint, filed on November 11, 1977,

consolidated the first three Union charges and, for the first

time, contained allegations about the mailgram controversy.

See J.A. 345a-6la. Three additional charges, in Case Nos.

22-CA-8173, 22-CA-8220, and 22-CA-8238, were filed by the

Union on January 26, February 21, and February 24, 1978,

respectively. J.A. 367a-69a. The Regional Director’s second

amended complaint, issued March 8, 1978, consolidated the six

a the representation petition for hearing. J.A.

**The General Counsel is authorized by §3(d) of the

NLRA, 29 U.S.C. § 153(d), to file unfair labor practice com-

plaints. The Regional Director, as agent for the Board in a

particular region, 29 C.F.R. § 102.5 (1983), has authority to

issue complaints where it appears an unfair labor practice

26a

charged by the Union prior to May 19, 1977, and there-

fore did not include any reference to the mailgram. A

statement concerning the mailgram episode appeared, in-

itially, in the Acting Regional Director’s first amended

complaint aginst Conair, issued on November 11, 1977.

J.A. 345a-6la. That pleading alleged: “On or about

April 20, 1977, at its Edison plant, [Conair] did threaten

its employees with loss of employment if they continued

to support the Union or any other labor organization.”

J.A. 350a (emphasis added).

Notably, the Acting Regional Director’s pleading did

not incorporate the Union’s charge that employees were

in fact discharged by reason of the mailgram. Matching

its confinement of the allegation to “threaten[ed] .. .

loss of employment,” the first amended complaint cited

only 8(a) (1), not 8(a) (3), in this context. J.A. 360a.

As to other unfair labor practices identified in the plead-

ing, however, the complaint asserted that both provisions,

8(a)(1) and 8(a) (3), had been violated. See J.A. 353a-

58a, 360a.

A second amended complaint issued on March 8, 1978.

J.A. 370a-98a. It added new allegations, see, e¢.g., J.A.

876a, 385a-86a, but repeated verbatim the mailgram

charge as set out in the first amended complaint. J.A.

877a. Again, the pleading stated that the mailgram in-

cident violated 8(a) (1) ; no 8(a) (8) charge was asserted

in relation to this incident. J.A. 39la. Further, as the

ALJ noted, “at the commencement of the hearing [be-

fore the ALJ] and during the course thereof the second

amended complaint was amended at various times by

counsel for the General Counsel to include additional

allegations of violations . . . by [Conair].” 261 NLRB

at 1202. None of these further amendments to the second

charge has merit. See 29 C.F.R. §§ 102.15, 102.74 (1988). If

the Regional Director declines to file a complaint, the charg-

ing party may appeal this decision to the General Counsel.

29 C.F.R. § 102.19 (1983).

27a

amended complaint alleged actual discharge of strikers

in violation of 8(a) (3). See General Counsel Exhibit 1

(ec)-(hh).

At the hearing before the ALJ, Conair Vice-President

Mayorek testified that he knew of no striking employees

who returned to work in response to the April 20 mail-

gram, J.A. 1485a, and that as of April 22, 1977, the

striking employees were considered “[t]o have volun-

tarily quit their jobs.” J.A. 1486a. Referring to this

testimony and to the content of the April 20 mailgram,

the ALJ concluded that the mailgram expressly threat-

ened discharge in violation of 8(a)(1). 261 NLRB at

1268. Nothing in the ALJ’s comprehensive decision, is-

sued in July 1980, however, indicates as an issue in

controversy the question whether the April 20, 1977, mail-

gram occasioned actual discharges in violation of 8(a) (1)

and 8(a)(3). By contrast, in instances where the com-

plaint alleged conduct in violation of 8(a) (3), and the

evidence supported the allegation, the ALJ concluded that

8(a) (3) had been violated. See, e.g., id. at 1278 n.417,

1279, 1281.

In exceptions to the ALJ’s decision, the Board’s Gen-

eral Counsel asserted that the Judge erred by:

[flailing to find that [Conair] violated Section

8(a)(1) and (3) of the Act by discharging all of

its unfair labor practice strikers as of April 22,

1977, and by failing to provide an appropriate

remedy in connection therewith.

General Counsel’s Exceptions to the Decision of the Ad-

ministrative Law Judge at 2 (November 14, 1980).

* This exception first appeared in the record in the Counsel

for the General Counsel’s Memorandum in Opposition to the

Proposed Settlement Agreement at 5, dated October 18, 1979.

In September 1979, over a year after the hearing before the

ALJ closed, Conair and the Union negotiated a settlement

that included a provision stating that Conair would not be

28a

The Union filed a similar exception, and specifically as-

serted that Conair should have been ordered “to make all

of the [affected] unfair labor practice strikers . . . whole

for any loss of pay commencing April 22, 1977 until the

date of a bona fide offer of reinstatement.” Charging

Party’s Exceptions to the Decision of the Administrative

Law Judge at 2 (November 7, 1980).

The Board unanimously affirmed the ALJ’s determina-

tion that the mailgram unlawfully threatened striking

employees with discharge in violation of 8(a)(1). We

agree that the record fully supports the ALJ’s conclusion,

and Conair does not seriously argue otherwise. Three of

the Board’s five members, however, further determined

that the ALJ’s conclusion should be augmented in line

with the exception pressed by the General Counsel and

the Union; these members cited record evidence support-

ing the contention “that the April 20 mailgram also vio-

lated Section 8(a) (8) and (1) of the Act by unlawfully

terminating the striking employees.” 261 NLRB at 1189-

90. '

Conair, in its brief responding to the General Counsel’s

and Union’s exception, had objected that the pleadings

failed to alert it to the presence of an actual termination

issue stemming from the mailgram. The Board’s majority

declared as its answer to this lack of notice objection:

liable for back pay. Opposing the settlement, the General

Counsel stated his view that Conair owed the unfair labor

practice strikers back pay from April 22, 1977, until their

reinstatement. Ultimately, the settlement agreement collapsed.

The General Counsel’s cryptic reference in October 1979 to

the issue stated with precision in his November 1980 excep-

tions does not indicate timely notice to Conair; although the

ALJ’s opinion did not issue until July 1980, the hearing ended

on June 2, 1978. Notice adequate to provide a fair opportunity

to defend must occur before, not after, the record is closed.

29a

Although [Conair] asserts that it had no notice

that the April 20 mailgram would be litigated as a

violation of Sec. 8(a) (3), the complaint specifically

alleges that the mailgram threatened employees with

discharge in violation of Sec. 8(a)(1), and other

paragraphs of the complaint allege that other con-

duct by [Conair] violated Sec, 8(a)(3). Further, in

its exceptions, [Conair] argued that the law and the

interpretation of the facts now in the record do not

support the finding of a violation. [Conair] does

not argue that it was precluded from adducing any

exculpatory facts or that it would have altered its

presentation of the case in any manner. Accord-

ingly, we find no merit to [Conair’s] contentions

since the issue was fully litigated and all of the

operative facts underlying the finding of a 8(a) (3)

and (1) violation are present in the record.

261 NLRB at 1190 n.5 (citing Southern Newspapers, Inc.,

255 NLRB 154, 154 n.1 (1981)) (emphasis added).

Board Member Hunter, joined by Chairman Van de

Water, dissented from the majority’s extension of the

ALJ’s decision on the mailgram episode. They reasoned:

[T lhe discharge issue was initially raised in the

[Union’s] charge but was not alleged as an unfair

labor practice in the [Regional Director’s] complaint,

[thus leading Conair] to believe that the discharge

issue was not before the Board. Sec. 3(d) of the

Act vests the authority to issue unfair labor prac-

tice complaints with the General Counsel, and in

this case the General Counsel saw fit not to allege

that the mailgram had violated the Act by unlaw-

fully yr {Conair’s] striking employees. . . .

[T]his is not the type of case where, during the

hearing, the Genera] Counsel discovers previously un-

available evidence indicating additional unfair labor

practices. ... [T]he General Counsel had long been

aware of the existence of the mailgram. . . onirit is

patently unfair to permit the General Counsel to

raise the discharge issue at such a late stage, and

80a

after the record has been closed. . . .[W]Je can only

speculate as to how [Conair] might have changed

its litigation strategy or presented its facts dif-

ferently if the discharge issue, with its substantial

backpay liability, had been timely raised. Once the

record has been closed, and, if you will, all bets

called, it is too late to raise the ante and attempt to

collect additional] chips.

261 NLRB at 1199 n.39.

B. Analysis

We agree with the dissenting Board members that the

critical issue is not whether there is substantial evidence

in the record indicating that the mailgram occasioned

actual termination of the strikers’ employment. That

issue, we believe, should not have been reached by the

Board, for Conair was never told before the hearing

record closed that the stakes included liability for dis-

charges effected on April 22, 1977. The Union opened

the matter by charging that the mailgram episode spelled

discharge, and not the mere threat of such action. But

the complaint adjudicated by the ALJ, although amended

in several particulars both before and during the course

of the hearing, never asserted more than the threat of

termination in violation of 8(a) (1). And the ALJ, who

canvassed the case thoroughly in an extraordinarily de-

tailed decision, apparently did not regard actual discharge

as a matter fairly posed for resolution.

It will not do to assert, as the Board’s majority did,

that “other paragraphs of the complaint allege[d] that

other conduct by [Conair] violated Sec. 8(a) (8).” 261

NLRB at 1190 n.5. If anything, such “other paragraphs”

might have reinforced Conair’s anticipation that it faced

only an 8(a) (1), not an 8(a) (3), contention in relation

to the mailgram. Nor do we believe it was Conair’s

burden to show that, had it been accorded due notice of

an actual discharge claim based on the mailgram, it could

8la

have “adduc[ed] . . . facts” or “altered its presentation”

to defeat the claim. See id. Here, as in McLean-Behm

Steel Erectors, Inc. v. Occupational Safety and Health

Review Commission, 608 F.2d 580, 582 (5th Cir. 1979),

“because the record . . . does not reveal uncontrovertibly

that petitioner could not have prevailed in any defense to

[the 8(a)(8)] charge, we find prejudice requiring re-

versal,” ©

We stress that we do not rest on the notion that the

NLRB’s General Counsel is rigidly bound by his initial

statement of a complaint or even his successively amended

pleadings. Rule 15(b) of the Federal Rules of Civil Pro-

cedure provides an apt analogy. Under Rule 15(b),

pleadings can be amended to conform to the evidence, even

after judgment, when “issues not raised [therein] are

tried by express or implied consent of the parties.” Fp.

R. Civ. P. 15(b). Indeed, formal amendment is unneces-

sary to preserve the result of a fair trial of an issue that

the parties in fact have agreed to litigate. But it must be

“clear that the parties understand exactly what the issues

are when the proceedings are had.” Kuhn v. Civil Aero-

nautics Board, 188 F.2d 889, 842 (D.C. Cir. 1950).

Further, the presence of evidence in the record to sup-

port a charge unstated in a complaint or any amendment

thereto does not mean the party against whom the charge

is made had notice that the issue was being litigated.

“(T]he introduction of evidence relevant to an issue al-

ready in the case may not be used to show consent to

trial of a new issue absent a clear indication that the

party who introduced the evidence was attempting to raise

a new issue.” Cioffe v. Morris, 676 F.2d 589, 542 (11th

Cir. 1982) (quoting International Harvester Credit Corp.

v. East Coast Truck, 547 F.2d 888, 890 (5th Cir. 1977) ).

© See Jimenez v. Tuna Vessel “Granada”, 652 F.2d 415, 420

(5th Cir. 1981) (“[E]ach party is entitled to know what is

being tried, or at least to the means to find out. Notice remains

a first-reader element of procedural due process, and trial by

ambush is no[t] .. . favored... .”).

82a

Because it is the “[a]ctuality of notice . . ., not the

technicality, [that] govern[s],” Kuhn v. Civil Aeronautics

Board, 183 F.2d at 842, pleading amendments may be

tendered on appellate review. See 6 C. WRIGHT & A.

MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL

§ 1494, at 476-78 (1971). But “if the record is incom-

plete or if it is uncertain whether the party opposing the

motion to amend had notice of the unpleaded issue at the

trial stage, the appellate court should render its decision

in conformity with the issues relied upon by the lower

court in reaching its judgment.” Id. at 478.

It is at least uncertain whether Conair had fair notice

or understood that the discharge issue was part of the

case tendered to the ALJ. The ALJ, who did not even

mention the issue in an otherwise exhaustive set of find-

ings and conclusions, evidently did not perceive that the

question had been tried “by express or implied consent.”

See Feb. R. Civ. P. 15(b). Under the circumstances pre-

sented here, the Board, acting as an appellate body,

should have “render[ed] its decision in conformity with

the issue[]” as framed and resolved by the ALJ. See 6

C. WRIGHT & A. MILLER, supra, at 478. We conclude,

for the reasons stated, that the Board erred in “finding

that [Conair] violated Section 8(a) (3) and (1) of the

Act by discriminatorily discharging its striking employees

on Apri] 22, 1977,” 261 NLRB at 1190, and in modifying

the ALJ’s proposed remedy to conform to that Board

finding.

IV. CONAIR ENGAGED IN “OUTRAGEOUS” AND “PERVASIVE”

UNFAIR LABOR PRACTICES NOT OFFSET

BY UNION MISCONDUCT

Two determinations underlie the Board’s remedial di-

rectives: first, a fair election could not be held in the

wake of Conair’s “outrageous” and “pervasive” violations

33a

of the NLRA; second, the Union did not engage in suffi-

ciently grave misconduct to preclude the issuance of any

bargaining order that might otherwise be appropriate.

The evidence credited in the administrative proceedings,”

and prior NLRB and court decisions, support both de-

terminations. Neither is vulnerable under the deferential

standard of review we apply when the Board engages in

a reasoned exercise of its expert judgment. See NLRB v.

Gissel Packing Co., 395 U.S. 575, 612 n.32, 615-16 (1969) ;

Amalgamated Clothing Workers v. NLRB, 527 F.2d 803,

807 (D.C. Cir. 1975), cert. denied, 426 U.S. 907 (1976).

A. Conair’s Conduct

The ALJ concluded that “the extensive unfair labor

practices committed by [Conair] . .. are so ‘outrageous’

and ‘pervasive’ as to. . . render[] impossible a fair elec-

tion.” 261 NLRB at 1285. The NLRB accepted the

ALJ’s conclusion as congruent with the Board’s analy-

sis of Conair’s conduct in terms of four variables: the

gravity of the Company’s violations, the extent to which

their coercive effect pervaded the bargaining unit, their

timing, and the degree to which Conair repeated them.™

*1 See supra pp. 5-18.

© Member Hunter disagreed; in his opinion extraordinary

notice and access provisions would provide an adequate

remedy. 261 NLRB at 1199. Chairman Van de Water’s posi-

tion on this issue is unclear. See id. at 1195.

* These variables derive from the NLRB’s decision in

United Dairy Farmers Coop. Ass’n, 257 NLRB 772, 773-75

(1981) [hereafter, United Dairy II], the only other case in

which the Board has ordered an employer to bargain with a

union that never obtained even a card majority. See 261

NLRB at 1192 (Board Opinion). The United Dairy II deci-

sion also identified a history of employer misconduct as rele-

vant to determining whether a fair election is possible. See

United Dairy II, 257 NLRB at 773. The Board acknowledged

the absence of evidence in the instant case that the Company

engaged in unfair labor practices prior to the events at issue.

See 261 NLRB at 1192 n.16.

84a

The Board referred first to the gravely coercive nature

of Conair’s unfair labor practices, stressing the Company’s

threats to close the plant and its reprisals against strik-

ing employees. 7d. at 1192.% Next, the Board noted

that the Company’s violations were constantly repeated.

Further, the Board observed that the unlawful practices

began at a high level of intensity shortly after the Union’s

organizational drive commenced, continued over an eight

month period, intensified as the election neared, and even

occurred several times after the election. 7d. at 1193.

Finally, the Board cited the conspicuous involvement of

Conair’s highest officials and the use of mass meetings

and publications as factors serving to insure that the

coercive impact pervaded the bargaining unit. Jd. The

confluence of factors thus identified by the Board is un-

dergirded by substantial evidence on the record as a

whole, see, e.g., Universal Camera Corp. v. NLRB, 340 U.S.

474 (1951); Pedro’s, Inc. v. NLRB, 652 F.2d 1005, 1011

(D.C. Cir. 1981) ,* and adequately justifies the conclusion

that Conair’s conduct fell into the most egregious category.

* The Board pointed to the threats to discharge the striking

employees, the refusal to reinstate certain strikers, the delay

in reinstating the other strikers, the subsequent discharge of

several reinstated strikers, and the threats to close the plant

as the most coercive of Conair’s numerous violations. See 261

NLRB at 1192-93.

The Board majority also emphasized its determination that

the April 20 mailgram resulted in the actual discharge of all

striking employees on April 22. See id. at 1192. We have

rejected that determination because it was made without

fair notice to Conair. See supra pp. 23-82. We do not regard

the “actual discharge” determination as critical, however, cf.

Pedro’s, Inc. v. NLRB, 652 F.2d 1005, 1011-12 (D.C. Cir.

1981), because the Board majority concluded in the alterna-

tive that Conair’s conduct precluded a fair election even if

the Company did not discharge all the striking employees on

April 22. See 261 NLRB at 1193 n.18.

® See supra pp. 20-22 (ALJ’s findings underlying the factors

identified by the Board are supported by substantial evidence).

85a

Prior NLRB and court decisions sustain the Board’s

judgment as to the character and impact of Conair’s con-

duct. Precedent acknowledges the gravity of threats to

close a plant. See, e.g., Sinclair Co. v. NLRB, 395 U.S.

575, 588-89, 611 n.31, 615 (1969) (threats of plant

closure alone provide sufficient justification for majority

bargaining order) ; Donn Products, Inc. v. NLRB, 613

F.2d 162, 166 (6th Cir.) (plant closure is one of the most

coercive threats company can make during an election),

cert. denied, 447 U.S. 906 (1980) ; Chemvet Laboratories,

Inc. v. NLRB, 497 F.2d 445, 448 (8th Cir. 1974) (same) ;

Wright Plastic Products, Inc., 247 NLRB 635, 635 (1980)

(same) ; Rapid Manufacturing Co., 289 NLRB 465, 466

(1978) (same), enforcement denied in part, 612 F.2d 144

(3d Cir. 1979). Reprisals against union proponents are

similarly recognized as highly coercive. See, e.g., Jim

Baker Trucking Co., 241 NLRB 121, 122 (1979) (“threat

of termination is a serious unfair labor practice, [and]

the effectuation of such a threat is even more serious”),

enforced mem., No. 79-7163 (9th Cir. Aug. 8, 1980) ;

cf. First Lakewood Associates v. NLRB, 582 F.2d 416,

424 n.5 (7th Cir. 1978) (it is generally but not uni-

versally true that “section 8(a)(1) violations are less

serious and have less residual impact than. . . section

8(a) (8) violations”). The numerosity of 8(a) (1) viola-

tions has figured prominently as well in estimating the

coercive impact of an employer’s unlawful anti-union

activities. See United Oil Manufacturing Co. v. NLRB,

672 F.2d 1208, 1213 (3d Cir.), cert. denied, 103 S.Ct.

446 (1982) ; NLRB v. Montgomery Ward & Co., 554 F.2d

996, 1003 (10th Cir. 1977); Jim Baker Trucking Co.,

supra; see also NLRB v. Ely’s Foods, Inc., 656 F.2d 290

(8th Cir. 1981) (majority bargaining order upheld where

employer committed only 8(a) (1) violations).

Case law further recognizes that the possibility of a

fair rerun election is reduced when high corporate officials

86a

participate in the unfair labor practices, see, e.g., Rapid

Manufacturing Co. v. NLRB, 612 F.2d 144, 149 (3d Cir.

1979); Wright Plastic Products, Inc., 247 NLRB 635,

635 (1980), and when the violations affect most of the

unit employees. See, e.g., Electrical Products Division of

Midland-Ross Corp. v. NLRB, 617 F.2d 977, 987 (38d

Cir.), cert. denied, 449 U.S. 871 (1980) ; NLRB v. Mont-

gomery Ward & Co., 554 F.2d 996, 1003 (10th Cir.

1977). Repetition of unfair labor practices, practical

judgment suggests, reinforces their coercive effect. See

also NLRB v. Fort Vancouver Plywood Co., 604 F.2d

596, 601 (9th Cir. 1979) (“[r]Jepeated and drastic nature

of the coercive behavior’ warrants majority bargaining

order as remedy), cert. denied, 445 U.S. 915 (1980).

Two additional considerations fortify our view that we

have no cause in this case to second guess the NLRB’s

expert appraisal of the quality and effects of Conair’s un-

lawful activities. First, this case in several respects is

similar to the one other case in which the Board con-

cluded a nonmajority bargaining order was necessary be-

cause an employer’s “outrageous” and “pervasive” unfair

labor practices precluded a fair return election (United

Dairy Farmers Cooperative Association, 257 NLRB 722

(1981) ), and it is distinguishable from cases in which

* United Dairy II differs from this case in that the em-

ployer there had a prior history of unfair labor practices, dis-

charged over 20% of the bargaining unit (including the

primary union activist), and even threatened physical violence

on a single occasion. However, the two cases have these com-

mon features: in both, the company president (as well as

others) repeatedly threatened discharges and plant closure;

the company actually discharged employees, granted benefits,

coercively interrogated employees, and created the impression

of surveillance; the company responded swiftly and severely

to the beginning of the unionization drive and continued com-

mitting unfair labor practices over an extended period; and in

87a

the Board did not reach that conclusion.” Cf. NLRB v.

Jamaica Towing, Inc., 602 F.2d 1100, 1104-05 (2d Cir.

1979) (one reason for remand is Board’s failure to ex-

plain apparent inconsistency of issuing a bargaining order

when Board had not issued such an order in similar

cases). Second, Conair’s misconduct was more “out-

rageous” and “pervasive” than the misconduct demon-

strated in other cases in which this court affirmed the

Board’s decision to issue a majority bargaining order

because prospects for a fair rerun election appeared dim.

See Road Sprinkler Fitters Local Union No. 669 v. NLRB,

both cases the coercive message was effectively spread through-

out the bargaining unit. Moreover, unlike the employer in

United Dairy II, Conair also engaged in extensive solicitation

of employee grievances, threatened to terminate a variety of

employee benefits, and delayed reinstatement of unfair labor

practice strikers. Compare United Dairy II, 257 NLRB at

772-74 with Part I, supra pp. 5-17.

The NLRB has found “outrageous” and “pervasive” em-

ployer misconduct in other cases. See, e.g., Sambo’s Restau-

rant, Inc., 247 NLRB 777, 777 (1980), enforced, 641 F.2d 794

(9th Cir. 1981). The Board decided these cases, however,

when it did not yet claim the authority to issue nonmajority

bargaining orders to remedy such conduct. Consequently, it is

not clear that the Board analyzed the situations presented with

the rigor necessary to determine whether a nonmajority bar-

gaining order, if within the Board’s remedial authority at all,

is appropriate. See Lankford, Nonmajority Bargaining

Fett A Study in Indecision, 46 ALBANY L. REV. 8638, 395

).

* See Belcher Towing Co., 265 NLRB No. 159, slip op.

(1982) (although company was a recidivist, there were no

discharges, mass threats of discharge, or threats of plant

closure; company president did not personally participate in

unfair labor practices; unionization effort occasioned no im-

mediate response; and fewer nondischarge § 8(a) (8) vio-

lations occurred); Paul Distributing Co., 264 NLRB No. 179,

slip op. (1982) (although two of seven ‘unit employees were

di , company recalled union activist fiye days later;

ho threats were made to the unit en masse; and individual

threats made three days after discovery of the unionization

effort were not repeated thereafter); United Supermarkets,

88a

681 F.2d 11, 24 (D.C. Cir. 1982) (no threats of plant

closure, no threat of losing benefits, no solicitation of

grievances, no promises or grants of benefits, fewer

threats of discharge), cert. denied, 103 S.Ct. 831 (1983) ;

Amalgamated Clothing Workers v. NLRB, 527 F.2d 803,

806-07 (D.C. Cir. 1975) (no 8(a)(3) violations, no

threats of discharge, no solicitation of grievances, no

interrogations, no impression of surveillance, no threat

to withdraw benefits, fewer promises and grants of bene-

fits), cert. denied, 426 U.S. 907 (1976); Southwest Re-

gional Joint Board, Amalgamated Clothing Workers v.

NLRB, 441 F.2d 1027, 1034-35 (D.C. Cir. 1970) (no

threats of plant closure, no threats of discharge, no

solicitation of grievances, no impression of surveillance,

no involvement by company president, fewer 8(a) (3)

violations, fewer promises and grants of benefits, and

fewer threats to withdraw benefits) .*

B. The Union’s Misconduct

It is not disputed that, on three days in the course of

the five and one-half month long strike, significant epi-

sodes of striker violence occurred. Picketing was massive

and disorganized on the opening days, April 11 and 12.

Employees attempting to cross the picket line encountered

pushing and shoving. Uncontrolled strikers threw rocks,

obstructed traffic, slashed tires, and smashed windshields.

Swvaval workers sustained minor injuries. These chaotic

Ine., 261 NLRB 1291 (1982) (unfair labor practices subsided

several months prior to election; company did not communi-

cate threats en masse; high level officials did not make threats ;

and geographical separation of bargaining unit members

diffused coercive impact); Fred Lewis Carpets, Inc., 260

NLRB 848 (1982) (no solicitation of grievances, or surveil-

lance; and company committed all violations on single day).

* This court also approved a majority bargaining order in

Oil, Chemical & Atomic Workers Int’] Union v. NLRB, 445

F.2d 287, 246-47 (D.C. Cir. 1971), cert. denied, 404 U.S. 1089

(1972), a case involving numerous and sustained highly

coercive unlawful practices.

89a

incidents, the ALJ found, were not Union-planned. See

261 NLRB at 1219-26, 1287 nn. 453, 456.

On the evening of July 21, the arrival of a truck at

Conair’s premises for no apparent business reason oc-

casioned a further violent incident. The truck driver was

assaulted and his truck was damaged. See id. at 1232-36.

The ALJ determined from the testimony that “victims”

provoked some of the strikers’ misconduct and that Con-

air’s own unlawful activities created a “volatile situa-

tion.” See id. at 1287 n.456. He further found that,

following the chaotic first two days of the strike, violence

subsided. See id. In the long stretch from April to

September, the ALJ concluded, the “strike was generally

conducted in a peaceful manner with no significant picket

line misconduct.” Jd. at 1287.°

We do not decide in this case whether, as a general

rule, grave union misconduct, even if offset by more

egregious employer misconduct, precludes Board imposi-

tion of a remedial bargaining order. Compare NLRB v.

Triumph Curing Center, 571 F.2d 462, 476 (9th Cir.

1978), and Donovan v. NLRB, 520 F.2d 13816, 13821

(2d Cir. 1975) (in deciding propriety of majority bar-

gaining order Board should balance “effect of the Com-

pany’s violations against the gravity of the Union’s mis-

conduct”), cert. denied, 423 U.S. 1053 (1976), with Note,

Union Violence & Bargaining Orders: A New Approach

to Laura Modes, 127 U. Pa. L. REv. 1640, 1658-65

(1979) (advocating exclusive focus on gravity of union

misconduct).”” We address only the circumstances at

* On review of the record, we concluded that substantial

evidence supports the ALJ findings underlying these observa-

tions. See supra pp. 20-22.

7 For the Board’s five-factor balancing approach to the

problem, see Maywood Plant of Grede Plastics, 235 NLRB 363,

365 (1978).

The Board has declined to issue majority bargaining orders

when the union’s misconduct was considerably more serious,

40a

hand: when a strike is generally peaceful, marred only

by outbursts of violence contained within a short span

and not traced to union direction, we are not prepared to

declare the Board’s issuance of an otherwise appropriate

bargaining order an abuse of discretion.

V. REMEDIES

For the reasons stated in Part III, supra, we decline to

enforce the portion of the Board’s “make whole” direc-

tives predicated upon the alleged discharge of strikers on

and the employer’s considerably less grave, than the miscon-

duct demonstrated in this case. See Allou Distribs., Inc.,

201 NLRB 47 (1973) (six union agents entered plant and

then deliberately threatened and intimidated all ten unit em-

ployees until they withdrew decertification petition; employer

violated § 8(a) (1) and § 8(a) (5) by soliciting decertification

petition, promising improved benefits, and refusing to bar-

gain); Aircraft Mantel & Fireplace Co., 174 NLRB 787 (1969)

(union deliberately engaged in extended campaign of intimida-

tion and property damage; employer violated § 8(a) (5) by

refusing to bargain); Laura Modes Co., 144 NLRB 1592

(1968) (union representatives beat one partner inside plant,

“pushed around” employee trying to call police, and on a later

date beat another partner outside plant; employer violated

§8(a)(1) and §8(a)(5) by coercively interrogating em-

ployees, threatening discharge, soliciting employees to with-

draw from union, and refusing to bargain).

For court rulings refusing to enforce majority bargaining

orders after union misconduct, see NLRB v. World Carpets,

463 F.2d 57 (2d Cir. 1972) (picketers threatened nonstrikers

with sticks and chased plant managers in cars; low level

supervisor on one occasion promised employees a benefit and

on another stated that company president would close ware-

house rather than accept union); NLRB v. United Mineral &

Chemical Corp., 391 F.2d 829 (2d Cir. 1968) (union repre-

sentative and numerous pickets grabbed one employee, knocked

another to ground, and beat owner so severely that he required

over five months hospitalization ; employer violated § 8(a) (1)

and § 8(a) (8) by discharging one employee, creating the im-

pression of surveillance, and soliciting an employee to engage

in surveillance).

4la

April 22, 1977." We explain below why, despite our

acceptance of the Board’s evaluation of Conair’s con-

duct as “outrageous” and “pervasive,” we reject the

Board’s nonmajority bargaining order remedy. In all

other respects, we uphold the Board’s remedial order.

We divide our discussion of the Board-imposed remedies

into three parts: (1) the bargaining order; (2) extraor-

dinary notice and access remedies generally; (3) the re-

quirement that Conair’s president personally read the

Board’s remedial notice to an assembly of current em-

ployees.”

A. The Nonmajority Bargaining Order

In 1980, for the first time in the long history of the

NLRA,”™ a court squarely held that the NLRB has the

™ Other “make whole” directives require Conair to: (1)

reinstate all discriminatorily discharged strikers with appro-

priate back pay awards computed from the day of their un-

conditional offer to return to work; (2) make whole all previ-

ously reinstated strikers for any loss of pay resulting from

the Company’s discriminatory delay in reinstating them after

their unconditional offer to return to work; and (3) rehire all

strikers reinstated after the strike but subsequently dis-

charged, with appropriate back pay awards. See 261 NLRB

at 1195 (Board Opinion) ; id. at 1288, 1289 (ALJ Opinion).

These requirements are unquestionably within the Board’s

broad remedial power. See generally Phelps Dodge Corp. v.

NLRB, 818 U.S. 177, 187-200 (1941).

™ As stated earlier, supra p. 4, our positions diverge on the

Board directives listed above first and third. Judge Ginsburg

and Judge Scalia hold that the Board lacks authority to issue

a nonmajority bargaining order; Judge Wald would enforce

the Board’s bargaining order for the reasons stated in her

dissenting opinion. Judge Wald and Judge Scalia, for the

reasons set out by Judge Wald in Part V.C of this opinion,

uphold the Board’s presidential reading directive; Judge Gins-

burg dissents on this issue.

™ The Act has been in effect since 19385. See National Labor

Relations Act, ch. 372, 49 Stat. 449 (1935) (codified as

amended at 29 U.S.C. §§ 151-169 (1976)).

42a

authority to issue a bargaining order despite the absence

of tangible evidence that the union ever secured the sup-

port of a majority of the affected employees.* The full

Board itself did not rule unequivocally on the question

until 1982, in the case at hand.” The issue is vexing

™ United Dairy Farmers Coop. Ass’n v. NLRB, 683 F.2d

1054 (3d Cir. 1980) ; ef. NLRB v. Empire Corp., 518 F.2d 860,

863 n.3 (6th Cir. 1975) (stating in dictum that “[i]t is clear

that the Board may, where it finds egregious unfair labor

practices, enter a bargaining order even though the union is

unable to demonstrate that it represents a majority”) (cita-

tions omitted); J.P. Stevens & Co. v. NLRB, 441 F.2d 514,

521-22 (5th Cir. 1971) (strongly suggesting same in dictum).

A panel of this court, although leaving the question open be-

cause the case before it did not require resolution of the

“conundrum . .. even preliminarily,” noted that it “d[id]

not share [the Third Circuit panel’s] confidence that the

Board’s [general remedial] authority is so broad” as to em-

brace the power to order an employer to bargain with a union

that has not concretely demonstrated majority support. Team-

sters Local 115 v. NLRB, 640 F.2d 392, 897 n.7, 398 (D.C.

Cir.), cert. denied, 454 U.S. 827 (1981).

™ The remand in United Dairy, supra, was disposed of by a

panel consisting of only three of the five Board members. Two

of these adhered to their earlier position that the NLRB

possesses authority to issue a nonmajority bargaining order;

the third “recognized the Third Circuit’s decision as binding

upon the Board for the purpose of deciding that case.” Conair

Corp., 261 NLRB 1189, 1191 n.14 (1982) (discussing United

Dairy 11). Thus, a majority of the Board has never, until

this case, issued a nonmajority order on the basis of its own

assessment that it has authority to do so.

™ Commentary, while generally favoring nonmajority bar-

gaining orders in egregious cases, is far from unanimous.

Compare Bok, The Regulation of Campaign Tactics in Repre-

sentation Elections Under the National Labor Relations Act,

78 Harv. L. Rev. 38, 182-39 (1964), Golub, The Propriety of

Issuing Gissel Bargaining Orders Where the Union Has Never

Attained a Majority, 29 LaB. L.J. 681 (1978), and Note,

United Dairy Farmers Cooperative Association: NLRB Bar-

gaining Orders in the Absence of a Clear Showing of a Pro-

43a

because it trenches upon employee freedom of choice, a

matter at the very center of our national labor relations

policy. Nonmajority bargaining orders pose this di-

lemma: if the Board lacks authority to issue them, em-

ployers who offend the law most egregiously will escape

the most stringent remedy in the NLRB’s arsenal; if the

Board has the authority and exercises it to sanction

patent and incessant employer unfair labor practices,

employees may be saddled for a prolonged period ™ with

a union not enjoying majority support.” Absent a card

Union Majority, 80 CoLum. L. REV. 840 (1980) (all advocat-

ing Board authority to issue nonmajority bargaining orders),

with Hunter, Conair: Minority Bargaining Orders Usher in

1984 at NLRB, 38 Las. L.J. 571 (1982), Ostan, Bargaining

Orders: Gissel and United Dairy Farmers Revisited, 8 EM-

PLOYEE REL. L.J. 198 (1982), and 49 Geo. WasH. L. Rev. 780

(1981) (all questioning Board authority to issue nonmajority

bargaining orders).

™ A union recognized on the basis of a nonmajority bargain-

ing order does not qualify for the one-year protection from

decertification and competing union election petitions enjoyed

by unions certified in a valid Board election. See National

Labor Relations Act § 9(c), 29 U.S.C. § 159(c) (1976). How-

ever, the Board has consistently held that an employer under

order to bargain with a union must do so for a reasonable time

period (generally one year), without regard to the union’s

majority status. See, e.g., Keller Plastics E., Inc., 157 NLRB

5838, 587 (1966) ; Poole Foundry and Mach. Co., 95 NLRB 84,

36 (1951). See also Franks Bros. Co. v. NLRB, 321 U.S. 702,

705 (1944) (“[{A] bargaining relationship once rightfully

established must be permitted to exist and function for a

reasonable period in which it can be given a fair chance to

succeed.”). Moreover, once the union and employer have

signed a collective bargaining agreement, the Board’s contract

bar rules presumably will bar a new election in that bargain-

ing union for the duration of the agreement, provided it lasts

no longer than three years. See General Cable Corp., 139

NLRB 1123 (1962).

™ Board members who doubt or deny the NLRB’s authority

to issue nonmajority bargaining orders have pointed out that

employees vote against collective representation in more than

44a

majority the Board cannot estimate with any degree of

reliability how the employees would have responded in a

free election.” Inevitably, therefore, a nonmajority bar-

half of all Board elections. See Conair, 261 NLRB at 1197 &

n.85 (1982) (Chairman Van de Water, concurring in part

and dissenting in part) (quoting United Dairy Farmers Coop.

Ass’n, 242 NLRB 1026, 1043 n.65 (1979) (hereafter, United

Dairy I) (Member Penello, concurring in part and dissenting

in part) and citing 1978 and 1980 NLRB annual reports).

On the relationship between union authorization cards and

election results, the Fourth Circuit said in NLRB v. S.S. Logan

Packing Co., 386 F.2d 562 (4th Cir. 1967):

In 1962, Board Chairman McCullock presented to the

American Bar Association data indicating some relation-

ship between large card-signing majorities and election

results. Unions which presented authorization cards from

thirty to fifty per cent of the employees won nineteen per

cent of the elections; those having authorization cards

from fifty to seventy per cent of the employees won only

forty-eight per cent of the elections, while those having

authorization cards from over seventy per cent of the

employees won seventy-four per cent of the elections.

Id. at 565 (footnote omitted). The Board recently reported

that this data has not been updated. See Letter from John C.

Truesdale, Executive Secretary, NLRB, to Carl L. Taylor,

attorney for Chamber of Commerce (Sept. 29, 1982), reprinted

in Brief of the Chamber of Commerce of the United States as

Amicus Curiae at A-1 app.

7 When the union has achieved a card majority, the Board

assumes a remedial bargaining order rectifies the employer’s

illegal conduct by restoring the status quo ante. See Conair,

261 NLRB at 1196-97 (Chairman Van de Water, concurring

in part and dissenting in part). That assumption cannot be

indulged when a majority of the employees has never mani-

fested approval of unionization. See id. at 1198 (Member

Hunter, concurring in part and dissenting in part) (union

election campaigns are “subject to ebb and flow in employee

sentiment that as often as not has little to do with conduct,

lawful or otherwise, engaged in by one of the parties”) (foot-

note omitted) ; cf. Weiler, Promises to Keep: Securing Work-

ers’ Rights to Self-Organization Under the NLRA, 96 Harv. L.

45a

gaining order replaces employee freedom of choice with

a government agency’s educated guess that the employees

will fare better with a union than without one.”

Nothing now in the text of the governing statute, or in

its legislative history, suggests that Congress contem-

plated general authority in the Board to select or desig-

nate a union for employees, a majority of whom never

signaled assent to the arrangement. Nor do lower court

judges have secure guidance from the Supreme Court on

this issue.

To discourage employer lawlessness, arguably the

NLRB should be positioned to choose for the employees

when the prospect of an untainted election, held within

a reasonable time frame, appears remote. We recognize

the appeal of the position that a nonmajority bargaining

order may be the only potentially effective means to check

REV. 1769, 1786 (1983) (citing W. Dickens, Union Repre-

sentation Elections: Campaign and Vote 108 (Oct. 1980)

(unpublished Ph.D. dissertation, Department of Economics,

Massachusetts Institute of Technology) ) (unions would have

won only 46-47% of elections studied if employer had cam-

paigned entirely cleanly); supra note 78 (unions lose a ma-

jority of elections even when authorization cards have been

signed by 50-70% of the affected employees).

* The Board’s majority observed that a substantial card

showing, such as the “approximately 46 percent” shown in

this case, shored up an NLRB-imposed bargaining order.

261 NLRB at 1194. However, the Board did not deem critical

to its issuance of a bargaining order “any... affirmative

showing of a reasonable basis for projecting a union’s ma-

jority support.” Jd. But cf. Bok, supra note 76, at 188

(nonmajority bargaining order remedy should be confined to

“cases in which there is a reasonable possibility that the union

would have ultimately prevailed in the absence of the em-

ployer’s unlawful acts”). Instead, “[t]he critical predicate to

issuance of a nonmajority bargaining order,” the Board rea-

soned, is its finding that the employer’s exceptional conduct

has “foreclosed the possibility of a fair representation elec-

tion.” 261 NLRB at 1194.

46a

an employer’s unlawful conduct designed to nip a union’s

organizing campaign in the bud.** Nonetheless, we be-

lieve that the statutory gap we face is too deep for an

agency or court to fill. A fundamental policy choice is

at stake: Is it ever appropriate to substitute an agency’s

“big (even if good) brother” judgment for a majority of

employees’ express choice of a bargaining representative?

That basic decision, we believe, should be left to Con-

gress, as the organ of government accountable to the

people for establishing the main lines of our national

labor relations policy.

1. The Gissel dictum

The Supreme Court has not yet confronted a case re-

quiring it to decide whether the NLRB has the power

to issue a bargaining order where the union has not

shown majority status. In NLRB v. Gissel Packing Co.,

395 U.S. 575, 613-14 (1969), however, the High Court,

citing dictum from NLRB v. S.S. Logan Packing Co.,

386 F.2d 562, 570 (4th Cir. 1967), appeared to con-

template the possibility of such an order.

Gissel itself reversed a Fourth Circuit decision which

had refused to sanction a bargaining order despite seri-

ous employer misconduct and in face of proof that the

union had once obtained authorization cards from a ma-

jority of employees.” The Court observed, nonetheless,

that its views and those of the Fourth Circuit were not

far apart:

[T]he actual area of disagreement between our posi-

tion here and that of the Fourth Circuit is not large

as a practical matter. While refusing to validate

% But cf. Weiler, supra note 79, at 1795 (bargaining order

imposed by the NLRB years after a union’s organizing drive

is “highly unlikely” to “produce a viable and enduring col-

lective bargaining relationship’).

@ Four cases were consolidated for decision in Gissel; all

four involved card majorities.

47a

the general use of a bargaining order in reliance on

cards, the Fourth Circuit nevertheless left open the

possibility of imposing a bargaining order, without

need of inquiry into majority status on the basis of

cards or otherwise, in “exceptional” cases marked by

“outrageous” and “pervasive” unfair labor prac-

tices. Such an order would be an appropriate rem-

edy for those practices, the court noted, if they are

of “such a nature that their coercive effects cannot

be eliminated by the application of traditional reme-

dies, with the result that a fair and reliable election

cannot be had.”

Gissel, 395 U.S. at 6138-14 (quoting Logan Packing, 386

F.2d at 570) (emphasis added).

As the Supreme Court recognized, the Fourth Cir-

cuit’s decisions in both Gissel and Logan Packing gen-

erally disfavored remedial bargaining orders. Indeed,

the Logan Packing dictum indicated the Fourth Cir-

cuit’s uncertainty whether a nonmajority bargaining order

could be reconciled with the statute even in the most

egregious circumstances: “[I]n light of the guaranty

of [NLRA] §7 of employees’ rights not to be repre-

sented [the use of a nonmajority bargaining order], if

ever appropriate, must be reserved for extraordinary

cases.” 386 F.2d at 570-71 (footnote omitted) (empha-

sis added).

The Supreme Court’s Gissel dictum, reciting Fourth

Circuit dictum, has been read to encompass cases with

two characteristics: the employer’s conduct falls into

the most egregious category; the union’s campaign at

no point achieved a card majority.“ Cases with these

8 See, e.g., Teamsters Local 115, 640 F.2d at 396-97.

The Supreme Court’s reference in Gissel to the possibility

of Board-imposed bargaining orders “without need of inquiry

into majority status” perhaps has been read to indicate more

than the Court intended. Prior to its reference to the Fourth

Circuit’s Logan Packing dictum, the Supreme Court had set

out its reasons for disagreeing with the Fourth Circuit’s ap-

proach “on all major issues,” 395 U.S. at 613, including that

48a

characteristics are commonly described as Gissel “cate-

gory one”’ cases.

Circuit’s distrust of union authorization cards, its view that

the 1947 Taft-Hartley amendments had ruled out bargaining

orders on the basis of card majorities, and its refusal to accept

the Board’s Cumberland Shoe doctrine. Id. at 595-610. The

Court then softened its multiple rejections of Fourth Circuit

positions by pointing out that the Circuit had “left open the

possibility” of issuing bargaining orders without inquiry into

majority status in sufficiently egregious cases. Jd. at 613; see

Logan Packing, 386 F.2d at 570 (Board “may have the power”

to impose a bargaining order as a remedy for egregious un-

fair labor practices).

Because Logan Packing, in dictum, had raised the possi-

bility of Board-imposed bargaining orders in “exceptional

cases” marked by “outrageous” and “pervasive” unfair labor

practices, the Supreme Court in Gissel was able to say that

“the actual area of disagreement between our position here

and that of the Fourth Circuit is not large.” Gissel, 395 U.S.

at 613. Thus, the High Court’s concentration apparently was

on the quality of employer conduct Logan Packing indicated

might justify a bargaining order, not on the notion that such

an order could issue “without need of inquiry into majority

status.”

The probability that the High Court referred only casually

to dispensing with inquiry into majority status is heightened

by the statement the Court made immediately after it set out

the Logan Packing dictum:

The Board itself, we should add, has long had a similar

policy of issuing a bargaining order, in the absence of a

§ 8(a) (5) violation or even a bargaining demand, when

that was the only available, effective remedy for substan-

tial unfair labor practices.

Gissel, 395 U.S. at 614. The Court cited two cases as illustra-

tive of the Board’s policy: United Steelworkers of America v.

NLRB, 376 F.2d 770 (D.C. Cir. 1967), and J.C. Penney Co. v.

NLRB, 384 F.2d 479, 485-86 (10th Cir. 1967). Both involved

employer misconduct designed to destroy the union’s card

majority.

49a

The Supreme Court’s holding in Gissel, however, is

confined to a second category,“ cases in which the union

shows that at one point it had majority employee

support:

The only effect of our holding here is to approve

the Board’s use of the bargaining order in less ex-

traordinary cases marked by less pervasive prac-

tices which nonetheless still have the tendency to

undermine majority strength and impede the elec-

tion processes. The Board’s authority to issue such

an order on a lesser showing of employer misconduct

is appropriate, we should re-emphasize, where there

is also a showing that at one point the union had

a majority; in such a case, of course, effectuating

ascertainable employee free choice becomes as im-

portant a goal as deterring employer misbehavior.

In fashioning a remedy in the exercise of its dis-

cretion, then, the Board can properly take into con-

sideration the extensiveness of an employer’s unfair

practices in terms of their past effect on election

conditions and the likelihood of their recurrence in

the future. If the Board finds that the possibility of

erasing the effects of past practices and of ensur-

ing a fair election (or a fair rerun) by the use of

traditional remedies, though present, is slight and

that employee sentiment once expressed through

cards would, on balance, be better protected by a

bargaining order, then such an order should issue.

895 U.S. at 614-15 (emphasis added) (citation omitted).

The Court thus anchored its holding in Gissel to the

NLRA’s core principle that a majority of employees

should be free to accept or reject union representation.

A bargaining order in a “category two” case, the Court

reasoned, not only “deter[s] employer misbehavior,” it

“effectuat[es] ascertainable employee free choice.”

“ A third category Gissel mentioned includes violations not

serious or extensive enough to warrant a bargaining order

because remedies concededly within the Board’s authority

would adequately ensure a fair election. See 895 U.S. at 615.

50a

In “category one” cases, by contrast, the employees’

free choice is not ascertainable. There is tension be-

tween the objective of deterring unfair labor practices

and effectuating expressed majority sentiment. Dictum

reciting dictum, we believe, is not a reliable indicator of

the Court’s probable view on a tense issue. “[AJll that

can fairly be said [of the Gissel dictum] is that the

Court left open the issue of whether the Board has the

statutory authority to issue a bargaining order in the

absence of a showing that the union ever enjoyed ma-

jority support.” * In deciding that issue, the statute it-

self should be our dominant guide.

% United Dairy I, 242 NLRB at 1040 (Member Penello,

concurring in part and dissenting in part), quoted in Conair,

261 NLRB at 1196 (Chairman Van de Water, concurring in

part and dissenting in part).

Judge Wald suggests that in Sinclair, one of the four cases

the Gissel opinion resolved, the Supreme Court in fact ap-

proved issuance of a bargaining order without inquiry into

the union’s majority status. See Wald dissent at 10-11. She

apparently reads the Supreme Court’s words, “even in the

absence of a § 8(a) (5) violation,” to mean “without need of

inquiry into majority status.” We do not comprehend why

these statements should be regarded as synonymous. At the

time the Court decided Gissel, Board doctrine had it that an

employer could in good faith refuse to bargain in face of a

union’s proffer of a card majority without committing an

8(a) (5) violation. See, e.g., Aaron Bros. Co., 158 NLRB 1077

(1966). Thus, an 8(a) (5) violation required a card majority

plus something more—employer bad faith in rejecting a

bargaining request. When the Gissel Court, in discussing Sin-

clair, said a bargaining order could issue “even in the ab-

sence of a § 8(a) (5) violation” it likely meant the employer’s

bad faith in refusing to bargain, not the union’s card ma-

jority, could be dispensed with. Supporting this interpreta-

tion is the sentence immediately following the ones quoted in

Judge Wald’s dissent, in which the Court explicitly referred

to “the union’s majority.” 395 U.S. at 615. In short, the point

that the union in Sinclair had once achieved majority support

was not an item merely raised in stating the facts of the case,

id. at 589, only to be thereafter set aside as irrelevant.

[Continued]

5la

2. The Act’s twin pillars: freedom of choice and ma-

jority rule in employee selection of representatives

The Board is charged by section 10(c) of the Act, 29

U.S.C. § 160(c) (1976), “with the task of devising rem-

edies to effectuate the policies of the Act.” NLRB v.

Seven-Up Bottling Co., 344 U.S. 344, 346 (1953).” In

performing this task, the Board has wide discretion,

subject to limited judicial review. Fibreboard Paper

Products Corp. v. NLRB, 379 U.S. 208, 216 (1964). A

prime function of that limited judicial review, however,

is to ensure that the Board’s decisions are consistent

with the Act’s basic premises. See, e.g., H.K. Porter Co.

v. NLRB, 397 U.S. 99 (1970) (Board’s remedial author-

ity does not include directing an employer to accede to

a particular contract clause) ; cf. Republic Steel Corp. v.

NLRB, 311 U.S. 7 (1940) (Board exceeded its remedial

authority in ordering employer to repay government for

wages paid to illegally discharged workers because Board

is not empowered to vindicate public rights) .

Senator Wagner, architect of the original NLRA, said

of majority rule:

[D]emocracy in industry must be based upon the

same principle as democracy in government. Ma-

* [Continued]

While the Supreme Court’s discussion of Sinclair is less

than crisp, we doubt that more is fairly extractable from the

High Court’s words than this: if the employer engaged in

sufficiently egregious coercive practices and the union once

had majority support, then even if the employer’s grave of-

fenses do not include a § 8(a) (5) violation, a bargaining order

may issue forthwith, i.e., without further Board exploration

rs prospects for an untainted rerun election in the foreseeable

uture.

* Section 10(c) provides, in relevant part, that “the Board

shall . . . take such affirmative action . . . as will effectuate the

policies of the Act.” National Labor Relations Act § 10(c),

29 U.S.C. § 160(c) (1976).

52a

jority rule, with all its imperfections, is the best

protection of workers’ rights, just as it is the surest

guaranty of political liberty that mankind has yet

discovered.

79 Cong. Rec. 7571 (1935). For a near half century, the

Act has centrally stated:

Representatives designated or selected for the pur-

poses of collective bargaining by the majority of the

employees in a unit appropriate for such purposes,

shall be the exclusive representatives of all the em-

ployees in such unit....

National Labor Relations Act, ch. 372, §9(a), 49 Stat.

449, 453 (1935) (codified as amended at 29 U.S.C.

§ 159(a) (1976)) (emphasis added). The allied freedom

of choice principle also received explicit statement from

the start:

Employees shall have the right to self-organization,

to form, join, or assist labor organizations, to bar-

gain collectively through representatives of their own

choosing ....

National Labor Relations Act, ch. 372, § 7, 49 Stat. 449,

452 (1935) (codified as amended at 29 U.S.C. § 157

(1976)) (emphasis added).

In 1947, Congress responded to concerns that employees

were being pressured into joining unions; it amended

section 7 of the Wagner Act to provide, expressly, that

employees “shall also have the right to refrain from any

or all of such [concerted] activities.” Labor Manage-

ment Relations Act, ch. 120, § 101, 61 Stat. 186, 140

(1947). The House Report made it plain that the legis-

lators sought to preclude the Board from imposing the

agency’s choice on the employees; instead, the NLRB was

to respect and enforce choices—whether for or against a

union—made by employees:

A committee amendment assures that when the law

states that employees are to have the rights guaran-

53a

teed in section 7, the Board will be prevented from

compelling employees to exercise such rights against

their will . . . . In other words, when Congress

grants to employees the right to engage in specified

activities, it also means to grant them the right to

refrain from engaging therein if they do not wish to

do 80.

H.R. Rep. No. 245, 80th Cong., Ist Sess. 27 (1947). See

also 98 Cong. Rec. 3425 (1947) (statement of Congress-

man Hartley) (‘This bill guarantees [workers] .. .

[t]he right to join with the[ir) fellow workers to select

a collective bargaining agent of their own choosing, that

is to say, one that is not forced upon them... .”).

Congress has authorized one exception to the general

rule that a union’s selection as exclusive bargaining

agent requires the advance approval of a majority of

the workers. In recognition of the construction industry’s

unique needs, Congress amended the NLRA in 1959

to validate “prehire”’ agreements in that industry. See

Labor-Management Reporting and Disclosure Act of

1959, Pub. L. 86-257, § 705(a), 73 Stat. 519, 545 (codi-

fied at 29 U.S.C. §158(f) (1976))." Section 8(f) of

the Act now provides that a construction industry em-

* As explained in the legislative history:

One reason for [allowing construction industry employers

to enter into prehire agreements with unions not then rep-

resenting a majority of employees] is that it is necessary

for the employer to know his labor costs before making

the estimate upon which his bid will be based. A second

reason is that the employer must be able to have avail-

able a supply of skilled craftsmen ready for quick

referral.

H.R. Rep. No. 741, 86th Cong., Ist Sess. 19 (1959), quoted in

NLRB v. Local 108, International Ass’n of Bridge, Structural

& Ornamental Iron Workers, 434 U.S. 335, 348 (1978). See

also Jim McNeff, Inc. v. Todd, 51 U.S.L.W. 4497, 4498-99

(U.S. Apr. 27, 19838) (discussing the general purpose of

§ 8(f) and Congress’ rationale for enacting it).

54a

ployer does not commit an unfair labor practice by sign-

ing a collective bargaining agreement with a union be-

fore the union has established majority employee sup-

port.” With the main rule in plain view, however, Con-

gress expressly limited the “prehire” agreement excep-

tion: section 8(f) denies unions entering such agreements

the one-year protection from election petitions accorded

certified unions by section 9(c) (3). See National Labor

Relations Act § 8(f), 29 U.S.C. 158(f) (1976).

In harmony with the intention of Congress to permit

only a narrow exception to the freedom of choice - ma-

jority rule premise, Board precedent underscores the vol-

untary, voidable character of section 8(f) agreements:

an employer who refuses to abide by an 8(f) agreement

does not thereby violate the duty to bargain imposed by

section 8(a) (5), unless the union can demonstrate its

majority status. See, e.g., R.J. Smith Construction Co.,

191 NLRB 693 (1971). See also NLRB v. Local 108, In-

ternational Association of Bridge, Structural & Orna-

*8 [I]t shall not be an unfair labor practice . . . for an em-

ployer engaged primarily in the building and construc-

tion industry to make an agreement covering employees

engaged . . . in the building and construction industry

with a labor organization of which building and construc-

tion employees are members .. . because . . . the majority

status of such labor organization has not been established

under the provisions of section 9 of this Act prior to the

making of such an agreement... .

National Labor Relations Act §8(f), 29 U.S.C. § 158(f)

(1976).

Outside the construction industry, an employer who recog-

nizes a union before majority support is demonstrated com-

mits an unfair labor practice even if the employer acted in

good faith and the union in fact represented a majority of

employees by the time a formal collective bargaining agree-

ment was signed. See ILGWU v. NLRB, 366 U.S. 731 (1961)

(upholding Board determination that employer violated

iad) §§ 8(a)(1), (2) and that union violated § 8(b) (1)

55a

mental Iron Workers, 434 U.S. 335, 341 (1978) (pre-

hire agreement is voidable “until and unless [the union]

attains majority support in the relevant unit”), quoted in

Jim McNeff, Inc. v. Todd, 51 U.S.L.W. 4497, 4499 (U.S.

Apr. 27, 1983). In the same vein, the Supreme Court

has ruled that section 8(f) agreements do not shield

unions from the Act’s restrictions on picketing aimed at

coercing an employer into recognizing a union or at

pressuring employees into selecting a particular labor

organization as its bargaining representative.” See

Local 103, International Association of Bridge, Struc-

tural & Ornamental Iron Workers, supra; cf. Jim McNeff,

Inc. v. Todd, 51 U.S.L.W. at 4499-4500 (emphasizing

that section 8(f) must be construed in light of Act’s

dominant free choice and majerity rule principles).

8. Nonmajority bargaining orders are not within

the NLRB’s current remedial discretion

Our national labor relations policy is designed to “ef-

fectuat[e] ascertainable employee free choice” and “ex-

pressed” majority sentiment. Gissel, 395 U.S. at 614. A

non-imajority bargaining order departs from this design.

Absent a union election victory or some other concrete

* Section 8(b) (7) of the Act provides, in part:

It shall be an unfair labor practice for a labor organiza-

tion or its agents . . . to picket or cause to be picketed,

or threaten to picket or cause to be picketed, any em-

ployer where an object thereof is forcing or requiring an

employer to recognize or bargain with a labor organiza-

tion as the representative of his employees, or forcing or

requiring the employees of an employer to accept or select

such labor organization as their collective bargaining

representative, unless such labor organization is cur-

rently certified as the representative of such employees

National Labor Relations Act § 8(b) (7), 29 U.S.C. § 158(b)

(7) (1976).

56a

manifestation of majority assent to union representation,

it is impossible to project the employees’ choice reliably;

imposition of a bargaining order in these circumstances

runs a high risk of opposing the majority’s will.”

Judge Wald points out effectively in dissent that the ma-

jority’s will may also be frustrated when an employer’s

unlawful acts have eliminated the prospect of a reliable

election. She would substitute for the coercion Conair

imposed an opposing coercive force imposed by the gov-

ernment. Without a clear direction from Congress, we

are not prepared to recognize administrative authority,

or arrogate power to ourselves, to remedy one possible

injustice by taking the substantial chance of imposing

another.

Administrative “expertise,” we note, does not appear

to command great weight on the question of the Board’s

statutory authority to issue a nonmajority bargaining

order. The NLRB has seen egregious employer conduct

on the order of Conair’s before. Through decades of ad-

ministering the Act, however, it issued, on its own in-

itiative, no nonmajority bargaining order in response to

an employer’s “outrageous” and “pervasive” conduct. It

did so, for the very first time, in this case; and it took

that action by a bare, one-vote margin.

Today, as in the past, the NLRB is torn over the non-

majority bargaining order issue. The current three-

member majority maintains that, in an atmosphere

chilled by an employer’s egregious anti-union behavior,

a nonmajority bargaining order ultimately will enhance

employee freedom of choice.** Two members maintain, as

insistently, that “resolution of the conflict between ma-

jority rights and remedial needs by the issuance of non-

majority bargaining orders is “fraught with danger for

* See supra notes 78 & 79.

* See Conair, 261 NLRB at 1193, 1194.

57a

employee freedom of choice.” * The only Supreme Court

expression in point is inconclusive. Congress, the one

time it authorized employer recognition of a union with-

out a showing of majority employee support, did so with-

in narrow confines.

If Congress wishes to add to the construction industry

exception and permit the Board to impose nonmajority

bargaining orders as a sanction for an employer’s fla-

grantly unlawful anti-union campaign, it may do so with

whatever qualifications it deems appropriate to prevent

the Board from veering too far from the freedom of

choice - majority rule premise. Given the current shape

of the statute, however, we believe Congress has not

placed nonmajority bargaining orders within the NLRB’s

remedial discretion.” Strong arguments can be made for

and against granting the Board the authority in question.

Administrators and judges, in our view, should not en-

deavor to anticipate or preempt debate on and decision of

this issue in the political arena.”

* Teamsters Local 115, 640 F.2d at 397 (referring to Mem-

ber Penello’s decision in United Dairy I). See Conair, 261

NLRB at 1197 (Chairman Van de Water, concurring in part

and dissenting in part) ; id. at 1199 (Member Hunter, concur-

ring in part and dissenting in part); United Dairy I, 242

NLRB at 1048 (Member Penello, concurring in part and dis-

senting in part).

* Cf. H.K. Porter Co. v. NLRB, 897 U.S. 99 (1970) (while

not overturning Board’s ruling that employer violated § 8(a)

(5) of the Act by refusing to bargain in good faith over a

union-proposed dues checkoff provision, Court rejected as out-

side Board’s remedial authority its order that employer ac-

cede to the contract clause in question).

™ For well-presented argument that the debate over bar-

gaining orders “is really beside the point,” and that the cur-

rent regulatory framework needs basic reshaping, see Weiler,

supra note 79.

58a

B. Extraordinary Notice and Access Remedies Generally

We set out earlier,” and restate here, a set of extraor-

dinary notice and access provisions included in the Board’s

remedial order. Notice of Conair’s violations and of the

Board’s cease and desist order, written in both Spanish

and English and personally signed by the Company’s

president, is to be mailed to each employee at his or her

home; copies are to be posted on Company premises; the

notice is to be included in appropriate Conair publica-

tions; and it is to be published twice weekly for four

weeks in local newspapers. For two years, Conair is to

afford the Union access to Company bulletin boards, and

to employees on Company premises in nonwork areas

during nonwork time. A current list of employees’ names

and addresses is to be furnished to the Union. Also for

two years, the Union is to be given notice of, and equal

time and facilities to respond to, Company speeches to

employees concerning union representation. Further,

prior to any Board election held within two years in

which the Union participates, the Union is to be per-

mitted to deliver a 30-minute speech to employees on

Company time. See 261 NLRB at 1195; id. at 1285 (ALJ

Opinion).

The Board has ordered similar measures in several

other cases involving pervasive patterns of illegal em-

ployer conduct. This court recently reviewed and upheld

an almost identical set of provisions in Teamsters Local

115 v. NLRB, 640 F.2d 392 (D.C. Cir.), cert. denied, 454

U.S. 837 (1981). With respect to the appropriateness of

these measures, this case is indistinguishable from 7eam-

sters Local 115. We have upheld the Board’s determina-

tion here that Conair’s extreme conduct ruled out a fair,

reliable election in the foreseeable future. T'eamsters

Local 115 concerned an employer whose “numerous and

egregious” unfair labor practices “may have so poisoned

* See supra note 44.

59a

the well” that a fair election was “no longer viable.”

See id. at 396, 399-401.% Judge Mikva, writing for the

court in Teamsters Local 115, cogently explained why

extraordinary notice and access remedies are within the

range of the Board’s corrective action when employers

conduct anti-union campaigns in a patently unlawful

manner. We adopt his reasoning and uphold the Board’s

above-stated notice and access requirements.

WALD, Circuit Judge:

C. The Notice-Reading Order

The Board, following the recommendation of the ALJ,

ordered the president and owner of the company per-

sonally to read aloud to the assembled employees the

Board’s notice of employee rights and employer obliga-

tions. Conair Corp., 261 NLRB 1189, 1289 (1982).

The Employer argues that this requirement is punitive,

oppressive and unwarranted. We are aware that there

is support in the language of a recent decision of this

court for the view that such a requirement is particu-

larly unpleasant for the chief executive officer of a com-

pany, and should be reserved for extraordinary cases

where no lesser remedy will achieve the remedial purpose.

However, we uphold the Board’s exercise of discretion in

ordering this unusual remedy here because we find

uniquely appropriate circumstances to warrant it.

The requirement that a particular management official

read the Board’s notice of their rights to employees, al-

though rarely used,” has been subject to judicial scrutiny

* The Board, then uncertain as to its authority to issue non-

majority bargaining orders, did not issue one in Teamsters

Local 115.

markets, Inc., 261 NLRB 1291 (1982) ; The Loray Corp., 184

NLRB 557, 558 (1970).

60a

in this court before. In Teamsters Local 115 v. NLRB

(Haddon House), 640 F.2d 892 (D.C. Cir. 1981), this

court refused to enforce the Board’s requirement that

the president of a company personally read the notice.

The court reached that conclusion only after a painstak-

ing review of the facts of the case, resting its reversal

of the Board on “the lack of a particularized need” for

such an ad hominem remedy. Id. at 403. Most important

for our purposes, the court found that the record in

Haddon House revealed little personal involvement by the

president in the employer’s numerous unfair labor prac-

tices. The ALJ in that case had not recommended such

a remedy, and the Board itself had articulated no special

reason for singling out the president as the indispensable

purveyor of the Board’s findings and orders. The Board’s

only rationale—that the president’s personal reassurance

to the employees would have greater impact—would pre-

sumably have justified the same remedy in every unfair

labor practice case. The court concluded in these cir-

cumstances that the personal dignity interests of the

president outweighed the marginal benefits of requiring

his personal participation in the public reading. The

court in Haddon House was careful to note the presence

of different circumstances in United Dairy Farmers Co-

operative Association, 242 NLRB 1026 (1979), remanded

on other grounds, 683 F.2d 1054 (3d Cir. 1980), where

the Board had also ordered the president personally to

read the notice.** In that case the Board had emphasized

the president’s extensive personal participation in the

violations sought to be remedied.

Thus, Haddon House in no way foreclosed the possi-

bility that in another case egregious circumstances might

justify the acknowledged personal indignity occasioned by

* The Third Circuit enforced the order without discussing

Ro preety 6 Se ee Se ee yoy ee

employer had not challenged the remedy before the Board,

the court did not permit an initial attack on review. 688 F.2d

at 1064.

6la

the Board’s extraordinary order of a presidential read-

ing. 640 F.2d at 403. Regrettably, the Board in this

follow-up case again failed to address itself specifically

to the special circumstances in the record that justified

this remedy. But here, as distinguished from Haddon

House, the ALJ who recommended the remedy, and whose

findings and conclusions in this matter were adopted by

the Board, made ample findings of fact to support the

recommendation that the nresident personally be required

to read the Board’s notice to the employees.

The ALJ found that President Rizzuto personally and

repeatedly communicated to employees the ominous threat

to transfer operations to Hong Kong if the plant were

unionized. 261 NLRB at 1267-68, 1271. The threat of a

plant shutdown, itself held to be an unfair labor practice

beyond the protection of the first amendment, id. at 1271,

became the centerpiece of Conair’s intense anti-union

campaign. Subordinate officers, in repeating the threat to

employees, stressed President Rizzuto’s personal animus

against unions as the basis for the threatened relocation.

Id. at 1267, 1269. Rizzuto also personally threatened em-

ployees with the withdrawal of benefits such as Christmas

parties and bonuses and the employees’ profit-sharing

plan if the Union won. Furthermore, Rizzuto personally

promised his employees, in violation of section 8(a) (1),

many improvements in working conditions and wages, in-

cluding the “open door policy” by which grievances were

solicited. Id. at 1264-65. Rizzuto, as well as other high

company officials, issued this barrage of threats and

promises at a series of unprecedented “captive audience”

meetings, themselves held to violate section 8(a) (1). Id.

at 1191 n.15.

Thus it is apparent from the ALJ’s findings, adopted

by the Board, that throughout the relentless anti-union

crusade at Conair Rizzuto committed himself personally

to defeating the union drive by unlawful means, under-

62a

mining any possibility of reasoned discussion by sys-

tematically promoting fear and promising improvements.

Nevertheless, the Employer now asserts Rizzuto’s per-

sonal dignity as a basis for challenging the requirement

that he read aloud to employees the Board notice that

Conair will not engage in such practices in the future.”

The president of a company may indeed ordinarily be

entitled to protest as oppressive a requirement that he

read to the employees, even on a single occasion,’ a

statement of their rights and his company’s obligations

under the Act. The dignity interests implicated by such

a requirement must always be carefully weighed and may

be decisive when unfair labor practices, however egre-

gious, are carried out entirely or primarily by subordin-

ate management personnel. But it is the pervasive per-

sonal involvement of President Rizzuto in the unfair

labor practices in this case that creates the need and

justification for his personal involvement in their remedy.

In order to dispel the atmosphere of intimidation created

in large part by the president’s own statements and

actions, it is justifiable to require at least one formal

declaration by him personally that the employees’ statu-

* The dissent reaches back to our decision in Int’] Union

of Elec., Radio & Machine Workers v. NLRB, 383 F.2d 230,

234 (D.C. Cir. 1967), for language characterizing the require-

ment of a public reading as “incompatible with the demo-

cratic principles of the dignity of man.” See Ginsburg dissent

at 2. Our decision in the IUE case has clearly been super-

seded, if not actually overruled, by our more recent decision

in Haddon House, which approved a public reading require-

ment though not its designation of the president as reader.

tory rights will be respected in the future. The Board’s

order can thus reasonably be said to effectuate the pur-

poses of the Act, and is not punitive, as argued by the

Employer. While we emphasize that a remedy such as

that ordered here should be reserved for extraordinary

circumstances giving rise to a particular remedial need,

it is important to recall that the notice to be read by the

president is nothing more nor less than an official state-

ment of the statutory rights and obligations found to have

been violated by the Employer. Under the special circum-

stances of this case, we will enforce this aspect of the

Board’s order.'”

101 We confess to being rather mystified as to the legal basis

for the position taken by Judge Ginsburg in her dissent. The

opinion does not rely, as Haddon House ultimately did, on the

particular facts; it appears even to concede that if the remedy

that Judge Ginsburg rests her argument heavily on the sug-

is ever authorized it is appropriate here. Nor do we believe

gestion, contrary to the Board’s judgment, that a reading by

the president might be less effective; such an intrusion into

the expert judgment of the Board would certainly be unwar-

ranted. Finally, the appeal to the principle barring a specific

performance remedy for breach of personal service contracts

is inapt. That principle operates in a factual and legal con-

text too remote to serve as the basis for overturning the Board

in an exercise of remedial discretion. Yet no other legal

foundation for this position is evident. The opinion cites no

statutory provision barring such a remedy. Although alluding

to the supposedly “punitive quality” of the order, Ginsburg

dissent at 2, the dissent does not actually appear to argue that

the order is “a patent attempt to achieve ends other than those

which can fairly be said to effectuate the policies of the Act.”

See Fibreboard Paper Products Corp. v. NLRB, 879 U.S. 203,

64a

CONCLUSION

For the reasons stated (1) we decline to enforce the

portion of the Board’s “make whole” directives premised

on Conair’s alleged discharge of strikers on April 22,

1977; (2) we decline to enforce the Board’s bargaining

order; (3) in all other respects we deny Conair’s petition

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

forcement of its order.

It is so ordered.

65a

WALD, Circuit Judge, dissenting:

I dissent. I believe that the Board had authority under

the National Labor Relations Act to order bargaining

with the Union based upon its findings, accepted by the

majority of this panel, that no other remedy could “dissi-

pate the lingering effects of [Conair’s] massive and un-

relenting coercive conduct” which “has foreclosed any

possibility of holding a fair representation election,” and

that “a remedial bargaining order is the only way to

restore to employees their statutory right to make a free

and uncoerced determination whether they wish to be

represented in collective bargaining by a labor organiza-

tion.” Conair Corp., 261 NLRB 1189, 1198 (1982). In

the face of such findings, my colleagues weakly profess

frustration and vexation that “employers who offend the

law most egregiously will escape the most stringent rem-

edy in the NLRB’s arsenal.” Maj. Op. at 43. Yet they

are forced to comb through the words of the statute and

thousands of pages of its extensive legislative history for

the few thin strands they weave into a statutorily-based

rejection of the Board’s authority to do anything about

one of the worst cases of unfair labor practices it has

encountered in its fifty year history. I find it paradoxical,

yea incomprehensible, that they can accept the Board’s

findings of massive violations of the Act by the Employer,

undermining embryonic labor support, and then infer

from the “purpose” of the Act an intent of Congress to

deprive the Board of the only remedy it believes can at

some point in the near future restore the employees’ right

to make a free choice to have or not have a union. Either

the Board is totally offbase in its findings, or my col-

leagues have usurped for themselves a mighty respon-

sibility in emasculating the Board’s remedial authority in

extreme cases to fulfill its congressional mandate to “ef-

fectuate the policies of the Act.”

66a

I. THE BOARD’s FINDINGS

The Board found not only that Conair had violated the

Act, but that the violations had been so outrageous and

pervasive that, in the Board’s words,

neither our traditional remedies nor even our ex-

traordinary access and notice remedies can effectively

dissipate the lingering effects of Respondent’s mas-

sive and unrelenting coercive conduct. By this con-

duct, Respondent has foreclosed any possibility of

holding a fair representation election. Under these

exceptional circumstances, we find that a remedial

bargaining order is the only way to restore to em-

ployees their statutory right to make a free and

uncoerced determination whether they wish to be

represented in collective bargaining by a labor

organization.

261 NLRB at 1193. It was on the basis of these findings

that the Board ordered the Employer to bargain with the

Union, in spite of the Union’s inability to demonstrate,

through authorization cards or otherwise, that it had at

any time obtained the support of a majority of the em-

ployees eligible to vote. The Board also found, however,

that there was a reasonable basis to conclude that the

Union would have enjoyed majority support but for the

Employer’s unfair labor practices, relying primarily upon

the fact that the Union at one point had the support of

forty-six percent of the employees. Jd. at 1194.

Certainly conclusions as to the predicted effect of the

Employer’s illegal practices on the election process, the

ineffectiveness of alternative remedies, and the probable

effect of that illegal conduct on the Union's original

67a

desist order and:the posting of notices ordinarily would

effectively remedy unfair labor practices, the Court stated,

“fijt is for the Board and not the courts . . . to make

that determination, based on its expert estimate as to the

effects on the election process of unfair labor practices of

varying intensity.” NLRB v. Gissel Packing Co., 395

U.S. 575, 612 n.82 (1969). Of course, the Board must

always support its conclusions with a reasoned explana-

tion and substantial evidence in the record. It did so

here."

'The Employer objects that the Board failed to consider

changed circumstances making the issuance of a bargaining

order inappropriate after the passage of six years since the

unfair labor practices took place. Although it did not offer

evidence of any particular changed circumstances, it argues

that the Board has a duty to inquire as to whether, for ex-

ample, there have been changes in the composition of the work-

force or other outside forces that would tend to dissipate the

lingering taint of the earlier events. Brief for Appellant

{hereinafter Employer’s Brief] at 48-44. The majority im-

plicitly rejects this objection, thus reaching the issue of statu-

tory authority; I agree that the objection fails, and I sum-

marize my own reasoning for whatever guidance it may offer.

Neither the mere passage of time, NLRB v. Katz, 369 U.S.

736, 748 n.16 (1962), nor normal employee turnover, Franks

Bros. Co. v. NLRB, 321 U.S. 702, 708-06 (1944); NLRB v.

Ship Shape Maintenance Co., Inc., 474 F.2d 484, 448 (D.C.

Cir. 1972), is grounds for overturning a bargaining order.

However, the significance of subsequent events for the validity

of a Board order is a subject of sharp dispute among the cir-

cuits and the Board. Compare NLRB v. Drives, Inc., 440 F.2d

354, 866-67 (7th Cir.), cert. denied sub nom. General Drivers

& Dairy Employees v. NLRB, 404 U.S. 912 (1971) ; G.P.D., Inc.

v. NLRB, 430 F.2d 963, 964-65 (6th Cir. 1970), cert. denied,

401 U.S. 974 (1971); NLRB v. Staub Cleaners, Inc., 418 F.2d

1086, 1089-90 (2d Cir. 1969), cert. denied, 397

68a

In evaluating the impact of the unfair labor practices

in Conair, the Board followed its analysis in United Dairy

only when particularly noteworthy events such as an un-

usually high rate of turnover, NLRB v. Ship Shape Mainte-

nance Co., Inc., 474 F.2d at 448, or the union’s decisive loss in

a valid election wholly free of employer coercion, Peoples Gas

System, Inc. v. NLRB, 629 F.2d at 47-48, have been brought to

the attention of the Board or the court. I am aware of no such

event in this case. Furthermore, in neither of these two previ-

ous cases had the employer been found guilty of substantial,

much less “outrageous and pervasive,” unfair labor practices.

See 474 F.2d at 442 (“[n]o overt anti-union animus... was

demonstrated to any of its employees.”’) ; 629 F.2d at 39 (court

emphasized “borderline nature of the violation” of duty to

bargain). See also NLRB v. Wilhow Corp., 666 F.2d 1294,

1304 (10th Cir. 1981); NLRB v. Western Drug, 600 F.2d at

1326 (turnover need be considered only in close cases, not

egregious cases). As the Fifth Circuit stated about practices

similar to the Employer’s here:

Practices may live on in the lore of thé shop and continue

to repress employee sentiment long after most, or even

all, original participants have departed. The Board is not

compelled to infer that past practices have attenuated,

especially practices striking directly at the heart of the

security of the employees, such as threats to close the

plant, blacklisting, and the like.

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

Additional considerations militate against imposing a blan-

we would reward the Employer’s efforts to postpone the en-

forcement of an effective remedy by attaching to every normal

delay in the process a “bonus” in the form of a requirement of

further proceedings entailing additional delay. The Ninth

Circuit, confronted with a similar issue, went to the jugular:

69a

Farmers Cooperative Association, 257 NLRB 772, 774

(1981) (United Dairy II), which identified the “gravity,

extent, timing, and constant repetition” of violations as

the key factors bearing upon whether the employer’s il-

legal conduct was so outrageous and pervasive as to fore-

close the possibility of a fair election. 261 NLRB at

1192. Summarizing its findings as follows, the Board laid

heavy stress on the repetition and insidious timing of the

violations committed by this Employer:

The chilling effect on employee rights of a single

discharge or threat of plant closure is difficult

enough to erase. Several repetitions of these and

other violations of the Act multiply the strength and

duration of the impression left on employees. The

same multiplier effect results from the manner in

which Respondent timed its unlawful conduct—i.e.,

swift and severe initial retaliation against the

Union’s organizational efforts, a lengthy campaign

of unfair labor practices, an increase in violations

as the election neared, and two unlawful discharges

even after the election. In moment and duration, the

timing of Respondent’s unfair labor practices under-

the Board’s decision, is to put a premium upon continued

litigation by the employer; it can hope that the resulting

delay will produce a new set of facts, as to which the

Board must then readjudicate. Suppose that the Board

does so, and again finds against the employer. There can

then be a petition to this court, a decision by it, and a

petition for certiorari to the Supreme Court. By that

time there will almost surely be another new set of facts.

When is the process to stop?

NLRB v. L.B. Foster Co., 418 F.2d 1, 4 (9th Cir. 1969), cert.

denied, 397 U.S. 990 (1970).

70a

scored its enduring resolve to oppose unionization by

any means and deeply imprinted on employee mem-

ories the drastic consequences of seeking union

representation.

Id. at 1198. I agree wholeheartedly with the majority

that “we have no cause in this case to second guess the

NLRB’s expert appraisal of the quality and effects of

Conair’s unlawful activities.”* We have today unani-

mously upheld the Board’s judgment that the Employer’s

coercive conduct has left such an indelible mark on the

workforce that not ven the Board’s extraordinary notice

and access remedies would restore to employees their

right to make an uncoerced decision about union repre-

sentation.

The Board also found that it was reasonable to con-

clude that the Union would have enjoyed majority support

but for the Employer’s egregious conduct. The Board’s

finding on this issue, which I consider critical,’ rests on

precisely the same kind of expertise and the same body of

precedent, and is thus entitled to the same degree of

deference as its other conclusions concerning the serious-

ness and probable impact of particular unfair labor prac-

tices. Yet the majority swiftly passes over the Board’s

2 Maj. Op. at 36. The majority continues:

First, this case in several respects is similar to the one

other case in which the Board concluded a nonmajority

bargaining order was necessary because an employer's

‘outrageous’ and ‘pervasive’ unfair labor practices pre-

cluded a fair rerun election, and it is distinguishable from

cases in which the Board did not reach that conclusion.

Id. at 36-37 (citations omitted).

* See infra at 26. The Board disclaims reliance on this

conclusion as a necessary prerequisite to a bargaining order.

Conair Corp., 261 NLRB at 1194. Because this conclusion

is a significant aspect of the factual context for the

claim of statutory authority, however, I discuss its

cuit wo

Tla

conclusion as to the probable effect of the coercive prac-

tices on the Union’s initial ability to gain majority sup-

port, asserting that “[a]bsent a card majority, the Board

cannot forecast with any degree of reliability how the

employees would have responded in a free election.”

Maj. Op. at 43-44. This cavalier rejection of the Board’s

expert judgment is inconsistent with the posture of def-

erence properly assumed with respect to the Board’s

closely related conclusions unanimously upheld here. Fur-

thermore, the main study cited in support of the ma-

jority’s statement actually confirms the Board’s premise

that serious unfair labor practices by employers have a

significant effect on the level of support for the union.‘

Finally, in this case the majority agrees with the Board

that the campaign of coercion was exceptionally intense

and pervasive. It is in light of that assessment that

I briefly review the factual basis for the Board’s con-

clusion. The Union began its organizing campaign in

March and by April 11 had the support of about

forty-six percent of the employees. 261 NLRB at 1205.

Yet only days after the onset of the Employer’s cam-

paign on April 4, a group of twenty-five to thirty em-

ployees approached the Union, stating that the Employ-

er’s threats had made them fear losing their jobs;

*The majority cites Weiler, Promises to Keep: Securing

Worxers’ Rights to Self-Organization Under the NLRA, 96

Harv. L. Rev. 1796, 1786 (1983) (discussing W. Dickens,

Union Representation Elections: Campaign and Vote (Oct.

1980) (unpublished Ph.D. dissertation, Department of Eco-

nomics, Massachusetts Institute of Technology) ) for the con-

clusion that unions would have won just under half of all elec-

tions if employers had campaigned entirely cleanly. See

Maj. Op. at n.79. The same study concluded, however, that

the number of pro-union voles was reduced by 15% where

employer unfair labor practices included threats or actions

against union supporters. Weiler, supra, at 1781-86. In par-

ticular, the study results indicate that employer intimidation

is most effective wn the union does not enjoy overwhelming

support. Jd. at 1785.

—

72a

several requested the return of their cards. 7d. at 1191.

The Union secured only fourteen authorization cards

after April 11, the day the strike began. Jd. at 1205

n.15. If the Employer’s conduct had such an immediate

impact on employees who had already expressed their

support for the Union, it was certainly reasonable for

the Board to conclude that it may have had an equally

inhibiting impact on the relatively small number of un-

decided employees—about fifteen—that would have sent

the union over the fifty percent mark and into majority

status for recognition purposes. There is little question

but that the Union would have continued to gain ad-

herents but for the Employer’s relentless anti-union

campaign. The Board’s conclusion in tliis respect is thus

supported by adequate reasoning, established Board prec-

edent concerning the impact of various unfair labor prac-

tices, and substantial evidence in the record.

Il. THE BOARD’s AUTHORITY TO ISSUE A NON-MAJORITY

BARGAINING ORDER

The Board rested its claim of statutory authority in

large part on the Supreme Court’s opinion in NLRB v.

Gissel Packing Co., 395 U.S. 575 (1969), and on subse-

quent judicial interpretations of that decision. I, too,

find support for the Board’s authority in the language

and reasoning of these cases, recognizing that, as always

with Supreme Court dictum and even with Supreme

Court holdings, what the Court giveth it can as easily

taketh away. In any event, because the issue of non-

majority bargaining orders has been smoldering on the

Board and in this court for decades, I believe a search-

ing inquiry into the language, legislative history, and

underlying policies of the Act, as well as the practical

effects on labor relations of upholding or overturning the

Board, is called for before pronouncing judgment on

either side of the issue. I find in none of these sources,

73a

singly or cumulatively, any contrary indicators to what

the Supreme Court appeared to be saying in Gissel.

On the contrary, I conclude from my inquiry that the

issuance of a ion-majority bargaining order under ex-

ceptional circumstances like these may well be the only

way to “effectuate the policies of the Act.”

A. The Gissel Decision and Category I Cases

In Gissel, the Court decided that a majority of uniun

authorization cards, unambiguous on their face, consti-

tuted “convincing evidence of majority support.” If an

employer refused to bargain with a union that had ob-

tained a majority of valid cards, and at the same time

committed independent unfair labor practices tending to

undermine the union’s majority strength and impede the

election process, the Board could issue a bargaining order

as a remedy even if the union subsequently lost the

election.

The Court went on to summarize in some detail the

factors that determine the appropriateness of a bargain-

ing order in three categories of cases:

Despite our reversal of the Fourth Circuit below in

Nos. 573 and 691 on all major issues, the actual

area of disagreement between our position here and

that of the Fourth Circuit is not large as a practical

matter. While refusing to validate the general use

of a bargaining order in reliance on cards, the

Fourth Circuit nevertheless left open the possibility

of imposing a bargaining order, without need of in-

quiry into majority status on the basis of cards or

otherwise, in “exceptional” cases marked by “out-

rageous” and “pervasive” unfair labor practices.

Such an order would be an appropriate remedy for

those practices, the court noted, if they are of “such

a nature that their coercive effects cannot be elim-

inated by the application of traditional remedies,

with the result that a fair and reliable election can-

not be had.” The Board itself, we should add, has

¥ -

(=x

74a

long had a similar policy of issuing a g

order, in the absence of a §8(a)(5) violation or

even a bargaining demand, when that was the only

available, effective remedy for substantial unfair

labor practices.

The only effect of our holding here is to approve

the Board’s use of the bargaining order in less

extraordinary cases marked by less pervasive prac-

tices which nonetheless still have the tendency to

undermine majority strength and impede the elec-

tion processes. The Board’s authority to issue such

an order on a lesser showing of employer misconduct

is appropriate, we should reemphasize, where there

is also a showing that at one point the union had

a majority; in such a case, of course, effectuating

ascertainable employee free choice becomes as im-

portant a goal as deterring employer misbehavior.

395 U.S. at 613-14 (citations omitted) (emphasis added).

The Court thus reinforced its approval of the “Category

I” non-majority bargaining order described by the Fourth

Circuit by indicating that a showing of majority support

is necessary only in “less extraordinary cases” falling into

Category II. The Court also described a third category

of even less serious offenses in which no bargaining order

was appropriate without an election. Jd. at 615.

The Court’s description of Category I cases of out-

rageous and pervasive violations where a bargaining or-

der is warranted “without need of inquiry into majority

status” is characterized by the majority as mere dictum,

a palliative to the rejected and presumably dejected

Fourth Circuit. I am not as certain as the majority

that the “dictum” can be so easily dismissed. In one of

the four cases decided by the Court in Gissel, the Court

5 See Maj. Op. at 46-47; see also Teamsters Local 115 v.

NLRB, 640 F.2d 392, 396 (D.C. Cir. 1981) (Haddon House) ;

Employer’s Brief at 36. Cf. United Dairy Farmers Coop.

Ass’n v. NLRB, 633 F.2d 1054, 1065-66 (3d Cir. 1980).

75a

e2ppears to have applied the analysis it described as ap-

propriate for Category I cases:

In Sinclair, No. 585, the Board made a finding, left

undisturbed by the First Circuit, that the employer’s

threats of reprisal were so coercive that, even in the

absence of a § 8(a) (5) violation, a bargaining order

would have been necessary to repair the unlawful ef-

fect of those threats. The Board therefore did not

have to make the determination called for in the in-

termediate situation above that the risks that a fair

rerun election might not be possible were too great

to disregard the desires of the employees already

expressed through the cards.

Id. (footnote omitted). As the majority suggests, the

court’s statement is cryptic, and is conceivably open to

an interpretation that its reference to the “absence of a

§ 8(a) (5) violation” alludes only to the employer’s pos-

sible Jack of bad faith in refusing to bargain. See Maj.

Op. at n.85. But the language is also open to a read-

ing that the Court did not feel it necessary to inquire

into the majority status of the union in disposing of

the Sinclair case. Because the extreme nature of the

employer’s coercive conduct made a fair election impos-

sible and therefore placed Sinclair into Category I, the

Board did not have to meet the Category II requirements

of showing that the union had obtained a card majority

and that a fair election was too unlikely to disregard this

showing of majority support. This court has previously

adopted the latter interpretation, declaring that the Su-

preme Court in Gissel “approved the bargaining order en-

tered against Sinclair without a showing of a prior union

majority because the facts indicated ‘exceptional’ or ‘out-

rageous’ unfair labor practices.” Amalgamated

Workers v. NLRB, 527 F.2d 808, 808. (D.C. Cir. 1975),

cert. denied sub nom. Jimmy Richard Co. v. NLRB, 426

-U.S. 907 (1976).

Virtually every other court I know of has

the Gissel decision similarly, assuming the existence of

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an extreme category of cases in which a bargaining order

may issue in the absence of a card majority.* Only re-

cently, however, did the case materialize.’ In United

Dairy Farmers Cooperative Association v. NLRB, 633

F.2d 1054 (8d Cir. 1980), the Third Circuit faced the

issue for the first time in a union appeal from the refusal

by a divided Board to issue a bargaining order in a

Gissel Category I situation.* After a careful analysis of

* See, e.g., NLRB v. Montgomery Ward Co., 554 F.2d 996,

1002 (10th Cir. 1977) ; NLRB v. Armcor Indus., Inc., 585 F.2d

239, 244 (3d Cir. 1976); J.P. Stevens Co., Gulistan Div. v.

NLRB, 441 F.2d 514, 519 (5th Cir.), cert. den., 404 U.S. 8380

(1971); NLRB v. S.S. Logan Packing Co., 386 F.2d 562, 570

(4th Cir. 1967). But cf. NLRB v. Roney Plaza Apartments,

597 F.2d 1046, 1051 n.8 (5th Cir. 1979).

7 Prior to 1979, the Board had uniformly declined to issue

bargaining orders, even in cases of “outrageous” and “per-

vasive” violations, in the absence of a showing of majority

status. E.g., Fuqua Homes Missouri, Inc., 201 NLRB 180

(1978) ; GTE Automatic Elec., Inc., 196 NLRB 902 (1972) ;

The Loray Corp., 184 NLRB 557 (1970). It is not clear from

these cases, however, that the Board believed itself to be with-

out authority ever to order this remedy. In none of the three

cases above had the precise extent of employee support for the

union been litigated at all; nor had the General Counsel sought

a bargaining order. Furthermore, the Board found, explicitly

in The Loray Corp., 184 NLRB at 558, and implicitly in the

other two cases, that other non-bargaining remedies would be

adequate to redress the employers’ violations. As I read these

cases, the Board’s determination that a bargaining order was

not appropriate was not so much based on its view of the limits

of its statutory authority as on its expert assessment of the

particular remedial requirements presented by a given set of

* 633 F.2d at 1064-65. Two members of the Board believed

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the Gissel decision and its rationale, the court held that

“the Board has the remedial authority to issue a bar-

gaining order in the absence of a card majority and

election victory if the employer has committed such ‘out-

rageous’ and ‘pervasive’ unfair labor practices that there

is no reasonabie possibility that a free and uncoerced elec-

tion could be held.” Jd. at 1069.

Nonetheless, despite the Gissel pronouncement and a

contemporary consensus of circuit court interpretations

of it to the effect that the Board may issue a non-

majority bargaining order to counter extraordinarily fla-

grant employer violations, our court decides today that

the Board has no statutory authority ever to issue such

an order. See also Teamsters Local 115 v. NLRB (Had-

don House), 640 F.2d 392 (D.C. Cir. 1981) (earlier mis-

givings about such authority).® With the understandable

queasiness experience brings from relying too heavily on

predictions of what the Supreme Court will do in the

future based on what it has said in the past, I turn

now to an examination of the language and legislative

history of the Act to see whether the Board’s interpreta-

tion of Gissel will hold.

B. The Language of the Act

The Board points to the broad remedial mandate of

section 10(c), empowering it to order a party “to take

such affirmative action .. . as will effectuate the policies

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of [the Act]” once it has found a violation. The Employer

asserts and the majority now decides that the Board’s

seemingly wide authority under section 10(c) is in fact

securely bound by a fundamental principle of majority

rule incorporated in section 9(a) which acts as an abso-

lute limitation on the Board’s authority to issue a non-

majority bargaining order, whatever the circumstances.

Section 9(a) states in relevant part: “Representatives

designated or selected for the purposes of collective bar-

gaining by the majority of the employees in a unit ap-

propriate for such purposes shall be the exclusive rep-

resentatives of all the employees in such unit for the pur-

poses of collective bargaining .. .” 29 U.S.C. § 159(a).

The Employer and the panel majority read the exclusive

majority representation rule of section 9(a) into section

7, which provides that “[{e]mployees shall have the right

to self-organization, . . . to bargain collectively through

representatives of their own choosing, . . . and shall also

have the right to refrain from any or all such activi-

ties.” 29 U.S.C. § 157. They say that together the two

sections mean that the employees’ right to bargain

through representatives chosen by majority rule is vio-

lated by any Board order that requires an employer

to bargain with a union that cannot demonstrate that

it has at any time enjoyed the support of a majority of

the employees, regardless of the egregiousness of the em-

ployer’s conduct. In addition, the Employer points to

section 8(a) (2), which makes it an unfair labor practice

for an employer “to dominate or interfere with the for-

mation . . . of any labor organization,” 29 U.S.C. § 158

(a) (2), anc which has been interpreted to prohibit an

employer from voluntarily recognizing a union that rep-

sents only a minority of its employees. International

Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731

(1961).

Sections 9(a) and 8(a) (2) define conduct constituting

unfair labor practices on the part of employers. They

appear to have no direct application to the scope of the

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Board’s remedial authority when employers have been

found guilty of unfair labor praciices. Congress most

assuredly knew how to limit the Board’s authority. For

example, section 9(b), following directly after section

9(a) and dealing with determination of bargaining units,

clearly limits the Board’s power. It provides “that the

Board shall not (1) decide that any unit is appropriate

for such purposes if such unit includes both professional

employees and employees who are not professional em-

ployees unless a majority of such professional employees

vote for inclusion in such unit.” 29 U.S.C. § 159(b).

It seems obvious to me that neither section 9(a) nor

any other section of the Act dealing with unfair labor

practices by an employer can be automatically read as

an explicit limitation on the authority of the Board to

take remedial action as to those same unfair labor

practices.’

The majority’s argument that section 9(a)’s majority

principle, in conjunction with section 7’s guarantee of

10 The Supreme Court has on occasion limited exercise of the

Board’s remedia! authority because of conflict with a basic

policy embedded in the Act. In H.K. Porter Co. v. NLRB, 397

U.S. 99 (1970), the Court held that the Board lacked authority

to order an employer to accept a particular union bargaining

proposal, citing section 8(d) of the Act: “[The obligation to

bargain collectively] does not compel either party to agree to

a proposal or require the making of a concession ... .” 29

U.S.C. § 158(d). The Court reached its conclusion that the

Board lacked authority in that case not from section 8(d)’s

language alone, however, but rather from overwhelming evi-

dence in the legislative history that Congress explicitly in-

tended to preclude the Board from intruding into the substan-

tive terms of collective bargaining agreements. See 397 U.S.

at 104-06. In my view, the “plain language” of sections 7 and

9(a) offers far less support for the Employer’s (and the

panel’s) view that the Board is barred from ever issuing a

non-majority bargaining order, even when the employer has

made a fair election impossible, than did the explicitly pre-

clusive language of section 8(d), cited in Porter, defining

exactly what the obligation to bargain did or did not mean.

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freedom of choice, limits the Board’s remedial authority

in all cases and for all time ignores the quintessential

paradox of this case. The Employer has been found to

have engaged in an intense campaign of egregious un-

fair labor practices in complete and deliberate disregard

of the section 7 right of employees freely to choose their

bargaining representatives. Now the Employer—and the

panel majority—emerge as the champions of that very

right of choice: they would invoke that right as an ab-

solute bar against the Board’s authority to remedy the

Employer’s violation by issuing a bargaining order. But

in fact, by my colleagues’ own admission they simply

leave the emp.oyees in an eternal limbo, for the Board

has determined that a bargaining order in the short run

is the only means of restoring to the employees their

statutory right freely to choose whether or not to be

represented in the long run by a union. Thus both the

Board and the panel/Employer assert the same statu-

tory sections as the basis for their diametrically opposite

positions on the permissibility of a non-majority bar-

gaining order. I am particularly reluctant to reject the

Board’s construction of its remedial authority on the

basis of a purported conflict with the very statutory

language it is claiming to implement. The bottom line

here is how the employees, having been subjected to re-

lentless employer pressures not to choose a union, can

be best restored to some kind of equilibrium in which they

can choose freely for or against the Union. The Board,

as the expert in the field, says this can happen only if a

short-term bargaining order is put into effect; the panel

says that such an order is against statutory policy and

that the employees therefore should be left in the status

quo. Certainly the language of the statute alone does not

compel Board paralysis of this sort.

C. Legislative History

There is nothing in the legislative history of the Wag-

ner Act or subsequent amendments to indicate that Con-

8la

gress meant to withhold this remedial power from the

Board. The majority’s citations prove only that Con-

gress provided a mechanism for employees in the usual

situation to pick or reject their union by majority rule

and required employers to abide by that decision. There

is not a single word, however, to suggest that, if a fair

election could not be held because of employer interfer-

ence, the Board’s remedial powers were absolutely re-

stricted by majority rule.

Of course, Congress in passing the Wagner Act em-

braced the principle of majority rule in the selection of

bargaining representatives by employees. S. Rep. No.

578, 74th Cong., 1st Sess. 13-14 (1935); H.R. Rep. No.

972, 74th Cong., lst

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