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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1241

## Text

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

ae a
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 fa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1296%3A2. Public record. Not legal advice.