Petition for Writ of Certiorari — General Wood Preserving Co. v. National Labor Relations Board

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IN THE hae...

Supreme Court of the Gnited States

OCTOBER TERM, 1990

GENERAL WooD PRESERVING COMPANY, INC.,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES A. EDWARDS

GRAHAM & JAMES

P.O. Box 1951

Raleigh, North Carolina 27602

(919) 821-8000

Attorney for Petitioner

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

-, JR,

QUESTIONS PRESENTED

1. Do the remedial powers of the National Labor Re-

lations Board encompass the right to order a bona fide

successor employer to bargain with a labor organization

in the absence of voluntary recognition or certification of

the labor organization where such an order is predicated

solely upon the commission of unfair labor practices by

the predecessor employer?

2. Absent evidence that a bona fide successor employer

possessed notice of its predecessor’s commission of serious

unfair labor practices, may the duty to remedy those unfair

labor practices be imposed upon the successor?

TABLE OF CONTENTS

Page

QURITNONNS PPRUIEUIND istinienscisridancinstbinabccicisescniniens i

RE GP GI iisiccbcsianinitibiin ii

SAME GH UII coicccrariescckasceicaseacic tetris iv

I: I eciicrasicsicinshineiccinisisabcessansaciiniciaailata te a 1

POI cicehapticesiieeibiiiciiin edie ia ri aici 1

STATUTORY PROVISIONS INVOLVED ........ccccsssseseseeeees 1

PRAGUE GUE TU I hi caiahieteintnenitircictinenens 2

REASONS FOR GRANTING THE WRIT .........ccccccsseeseees 6

I. THERE IS SUBSTANTIAL CONFLICT AMONG

THE CIRCUIT COURTS OF APPEALS RE-

SPECTING THE APPROPRIATE ANALYSIS

OF BOARD ACTION ORDERING AN EM-

PLOYER TO BARGAIN WITH AN UNCERTI-

FIED LABOR ORGANIZATION. .............cc0ee00s 6

A. This Case Poses A Significant Unsettled

Question Respecting The Circumstances

Where A Bargaining Order Is The Ap-

CS TI; Semiaiaictntiietetsesenne sense... 6

B. This Case Poses A Significant Unsettled

Question Respecting The Effect Of Inter-

vening Events On The Propriety Of A

Bargaining Order Remedy ..................000+. 12

C. This Case Poses A Significant Unsettled

Question i e Power of The

Board to Issue A ining Order Ab-

sent A Showing of Majority Support ..... 16

D. This a A Si —— a

estion Respecting The per Role o

e Appellate Court In the Review of An

Administrative Adjudication ................... 18

II. THIS CASE REPRESENTS THE FIRST IN-

STANCE IN WHICH ENFORCEMENT OF A

BARGAINING ORDER IS SOUGHT AGAINST

A BONA FIDE SUCCESSOR EMPLOYER. .... 22

eet. diabainsneeesbaneomneene 30

TABLE OF AUTHORITIES

CASES

Action Auto Stores, Inc., 298 NLRB No. 135

SC RUITED cisecstheciseinntcituiinsnchellpaieiaienith ents MaMa taint casine

Am-Del-Co, Inc., 234 N.L.R.B. 1040 enf’ment denied

sub nom. Merchants Home Delivery Service,

Inc. v. NLRB, 580 F.2d 966 (9th Cir. 1978) .

Allied Chemical & Alkali Workers v. Pittsburgh

Plate Glass Co., 404 U.S. 157, 92 S. Ct. 383,

OD Si, i Se Oe NED citettinsninntacintidadinninccees

a v. NLRB, 583 F.2d 765 (5th Cir.

PIU scisaiceiiicaceaieaiisiiehiabhntbilssbihilletueialeimanesiinnstene

Bates v. Pacific Maritime Association, 744 F.2d 705

I Sa PI oii ccniist cicinnatttnscannhisiedanidiaabiicensoves

Bowman Transportation, Inc. v. Arkansas-Best

Freight Systems, Inc., 419 U.S. 281 (1974) ....

Chandler Motors, Inc., 2836 NLRB 1565 (1978) .....

Conair Corp. v. NLRB, 721 F.2d 1355 (D.C. Cir.

1983), cert. denied, 467 U.S. 1241 (1984) .......

Delco-Remy Division, General Motors Corp. v.

NLRB, 596 F.2d 1295 (5th Cir. 1979) ...........

EEOC v. MacMillan Bloedel Containers, Inc., 503

FA Te GU Gs TU acctcsiticiksccctccssecseccrese

Evans Services, Inc. v. NLRB, 81© F.2d 1089 (11th

Ry I iach chatscctd acid hndatdcwedibditithamtsenisscbanane

er ay v. NLRB, 732 F.2d 60 (6th Cir.

RITE scl pinnabdistiindebneamntabeneenennininebasipenntsanteesiees

Federal Power Commission v. Texaco, Inc., 417 U.S.

Se I salient naatcieinatiaaiaiai a nattaiitibanicions

First Lakewood Associates, Inc. v. NLRB, 582 F.2d

Be I Wein ctnctiniitiechatbacontbecisiinconiien

Fort Stewart Schools v. FLRA, 495 U.S. , 110

S. Ct. 2048, 109 L. Ed. 2d 659 (1990) ..........

19,30

Table of Authorities Continued

Page

General Wood Preserving Co. v. NLRB, 905 F.2d

RE COIR CID, BIFIIOD siccteccncsccniecassicconcsasiastatonsens 1

Golden State Bottling Co. v. NLRB, 414 U.S. 168

ITU neckoniadaninstcciniecencerngenstemagummindennensesstansbans passim

Gourmet Foods, 270 NLRB 578 (1984) .................. 18

Hedstrom Co. v. NLRB, 629 F.2d 305 (8d Cir. 1980),

cert. denied, 450 U.S. 996 (1981) ................... 13

Highland Plastics, 256 NLRB 146 (1981) .............. 15

House of Cycle, Inc., 264 NLRB 1040 (1982) ........ —

Howard Johnson Co. v. Detroit Local Joint Exec-

utive Board, 417 U.S. 249 (1974) ...........0000 23

Impact Industries, Inc. v. NLRB, 847 F.2d 379 (7th

CR TD sntbiicannvisscissncinbndipeiaiaialninipalctaiiitiiiiass sone 12,14

Indiana Cal-Pro, Inc. v. NLRB, 863 F.2d 1292 (6th

CO STI cesses dnntinsnnsdnecictinietes Sick) Weak siisciabeiancaine 8

International Union, UAW v. NLRB, 802 F.2d 969

CF SA SOD in crovcccsisnsintnninsntiitnsnntiitiasisctmmmnstas 7

J.J. Newberry Co. v. NLRB; 645 F.2d 148 (2d Cir.

TOURED icctaqivinssavicticissisippsinteiaaasninidlanaabelonsediness 9

J.P. Stevens & Co., 268 N.L.R.B. 63 (1983) .......... 16

J.P. Stevens & Co. v. NLRB, 441 F.2d 514 (5th

Cir.), cert. denied, 404 U.S. 830 (1971) .......... 13

John Cuneo, Inc. v. NLRB, 459 U.S. 1178

CRIED: scisiincccsininnsineietsiiaiacimiiitaneadianiilbasaaabininibsinnen 7

Limpert Brothers, Inc., 276 N.L.R.B. 364 (1985),

enfd mem., 800 F.2d 1135 reh’g denied, 800

F.2d 333 (3d Cir. 1986), cert. denied, 479 U.S.

ROT SEED wiketicncasecsnnctnincnininttiinseassttatentpinenascass 14

Local Union No. 5741, United Mine Workers of

America v. NLRB, 865 F.2d 733 (6th Cir.

TOD sincistn scttesicinentnshieeinatasahcnrnmtianiitanianigiianiigesess 24

Marlene Industries Corp. v. NLRB, 712 F.2d 1011

RD CI. FD nniinccnnersosnecnnsinntanscncenimnsncsanbinsnen 27

Table of Authorities Continued

Mid-South Bottling Co. v. NLRB, 876 F.2d 458 (5th

Ci BITTY scianscnsssacscceniecntistsiabasiaitedintntbatistilniintincs

M Ward & Co. v. NLRB, 904 F.2d 1156

eG, BROT) cccrccescccvesrcnnscsnsnnsousasenssautenccvenion

LIPEED cocsnpnoneeeceesnnenenstonssqnecensssnuensneenstonegsnsenqzceces

NLRB v. American Cable Systems, Inc., 427 F.2d

ra an Cir.), cert. denied, 400 U.S. 957

TEPUGET cuiiindintnserttipieneneiiabietialtanddienddinaiddantnatbeee

NLRB v. American Spring Bed Mfg. Co., 670 F.2d

SED GO SE SD Nircitenibcastestiiniinicianionidintinens

NLRB v. Apple Tree Chevrolet, Inc., 671 F.2d 838

CO Ga Wabits rsceisentabicesnitnnnstiintcnisedininaianaeee

NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988

CR Soc. Fa viarsiienincsecentnssensneicnsntnnsigniidanmnnniitertaes

NLRB v. Atlas Microfilming, Inc., 753 F.2d 313 (3d

CP... FUIUE neice eninenitteecneheinstianaeibnitnatnniiiteanesnsen

NLRB v. Buckley Broadcasting Co., 891 F.2d 230

(9th Cir. 1989), cert. denied, 495 U.S. __., 110

S.Ct. 2619, 110 L.Ed.2d 640 (1990) ...............

NLRB v. Burns International Security Services,

NLRB v. Cott Corp., 578 F.2d 892 (1st Cir.

SIGUE cchciiscstenieiescisidctiieddaatintinaniiiaheelillbaabainntenticessene

NLRB v. Creative Food Design, Inc., 852 F.2d 1295

GR SUPE entainesninnsininniinstasnuicdiinemnamiaiinsicon

NLRB v. Dadco Fashions, Inc., 632 F.2d 493 (5th

CARE. IU siserrsncsetsvenseeanscennninebeneubelinenniibieasecseres

RIDGES saniedecseechacseessencentevestnenneenonstenpesentaunaneescesses

NLRB v. Fabsteel Co. of Louisiana, 587 F.2d 689

CE Slr TU peieetvinsenunnbehindiiiidaceninonbbibndiaens

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

rte A Cir. 1979), cert. denied, 445 U.S. 915

| ETE R eee we nnn Sy Se: Keen ON

Page

10,23

8,13

24,25

13,21

Table of Authorities Continued

Page

NLRB v. Gissel Packing Co., 395 U.S. 575

CEI ccidisvisisescescecovscsscccssssececunecntocecesseccsorsscenes passim

NLRB v. Horizon Air Services, Inc., 761 F.2d 22

EE Te SITE cticditdcnhsinendoccsnctescssttioceeseneensnecsnace &

NLRB v. Hot Bagels and Donuts, Inc., 622 F.2d

CE IE sinctdccccnietnniadsencccbenseestumnene 26

NLRB v. J. Coty Messenger Service, 763 F.2d 92

Sr SE EET i cnleiinclicnnaninceunnnstonsnsgenensnbenenenenee 7,12

NLRB v. Jamaica Towing, Inc., 602 F.2d 1100 (2d

a IE Heniareiisetiiaitalicitinanasccteesenesssetinnanetiinseremens 7

NLRB v. Keystone Pretzel Bakery, Inc., 696 F.2d

IE SETI ccccanchniineiadtanenepemnenentsanveenenee )

NLRB v. Knogo Corp., 727 F.2d 55 (2d Cir.

BIUPED <cscscccnccscoccnescccssveenncenszeesenconscqneesanseasscecococe 12

NLRB v. L.B. Foster Co., 418 F.2d 1 (9th Cir.

1969), cert. denied, 397 U.S. 990 (1970) ........ 13

NLRB v. Link-Belt Co., 311 U.S. 584 (1941) ........ 29

NLRB v. Local Union No. 46, Metallic Lathers, 727

Pe Be Ce I TIED eetncenntibectiitccreccesensenccens 24,27

NLRB v. Loy Food Stores, 697 F.2d 798 (7th Cir.

ee ee 8

NLRB v. Maidsville Coal Co., 693 F.2d 1119 (4th

Cir. 1982), enfd on reh’g en banc , 718 F.2d

658 (1983), cert. denied, 465 U.S. 1079

GEN Gaspettensenceniiednecctinasceastasenteestecmsinabieseusecenteees a

NLRB v. Marion Rohr Corp., 714 F.2d 228 (2d Cir.

eacatciedleaecietilnincichetaiebnichanccseicnsncbbeatnaeenennencetes 6

NLRB v. National Car Rental Systems, Inc., 672

- BB: § go 3 jee 11

NLRB v. Pace Oldsmobile, Inc., 739 F.2d 108 (2d

ORR TI cctineriestorninnenegicntenionrenntgumbarectigineness &

NLRB v. Permanent Label Corp., 657 F.2d 512 (8rd

Cir. 1981), cert. denied, 455 U.S. 940 (1982) . 8

NLRB v. Pilgrim Foods, Inc., 591 F.2d 110 (ist

NE RN CTS ER ERR 14

Table of Authorities Continued

NLRB v. Quality Aluminum Products, Inc., 813

ane (6th Cir.), cert. denied, 484 U.S. 825

BETTE) accccessccccscncccccncesseoscoscesnnensenoussanssssvsconeceacce

FETED cccsescoccecsocescrescesencceseennsecooossnensessnssonsnecccoos

NLRB v. Walton Mfg. Co., 369 U.S. 404 (1962) ...

NLRB v. Western Temporary Services, Inc., 821

oe fF fos ee

a co Corp., 666 F.2d 1294 (10th Cir.

CA TIDE ccegesiescccsccesscocnssccnnensbesbtcaneteoshennsnusneces

Peoples Gas System, Inc. v. NLRB, 629 F.2d 35

Caines

ravy gle Degen, Dette, Opertee

oint Terminal Corp. v. NLRB, 705 F.2d 1537

EE Ui titintiesccecincscseeitilicsioncantinbtiiamesanen

Pioneer Natural Gas Co. v. NLRB, 662 F.2d 408

TIE ii hid nsceitnennpidenisitnesigiidliinintinimmansnes

Red Oaks Nursing Home, Inc. v. NLRB, 633 F.2d

ee iy I hnceditanescnticstnnsnsiitniesanetpeccenee

Regal Knitwear Co. v. NLRB, 324 U.S. 9 (1945) .

SEC v. Chenery Corp., 3832 U.S. 194 (1947) ..........

St. A Medical Center v. NLRB, 871 F.2d 137

RT IIIT ax cscncinennicapadinhinedpsiabsitahentiabeennees

CA SIO aneavesrenecinubenndpasascenetaasetagnasennnenenceccee

Trend Construction Corp., 263 NLRB 295 (1982) .

United Dairy Farmers Co-Op Association v. NLRB,

633 F.2d 1054 (3d Cir. 1980) ...............c0eeee0

Table of Authorities Continued

Universal Camera Corp. v. NLRB, 340 U.S. 474

ERIFIRED anencncccesccccccctenssotecnnencnscssnenesconosenssesenencoeees

1979) ......... BET XR cid Ciansinhes

STATUTES

IIE nis csensenadeebncanaionbenieaniinciesbtions

II TEED cis ensineateencnntannenheomintanonenunisene

inning cdetanhnenntinnananaenchennaneauenne

I ica s snchipinntntiniemenenconentaniionntons

MISCELLANEOUS

Bethel & Melfi, Judicial Enforcement of NLRB Bar-

gaining Orders: What Influences The Courts?,

22 U. C. Davis L. Rev. 1389, 173 (1988) ........

Holmes, The Path of the Law, 10 Harv. L. Rev.

~ TINIE sib icuciteahtiihinapsiiacancentbensecinenesseeneeseresces

—_, AE ma Tomorrow Is Another Day”:

Bvents Affect the Validity. of

Fane ?, 31 Stan. L. Rev. 505

GEUEE Gacistbcihcctinidisinanedncinsinnsieantetesnesnenanennsceccees

Note, The Gissel Bargaining Order: Is Time A Cure-

All?, 26 Duquesne L. Rev. 447 (1987) ...........

Restatement (Second) of Agency § 9(3) (1958) ......

Page

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FO" THE FOURTH CIRCUIT

The petitioner General Wood Preserving Company, Inc.'

respectfully prays that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Fourth Circuit entered in this proceeding

on June 18, 1990, as corrected July 2, 1990.

OPINION BELOW

The opinion of the Court of Appeals is reported as Gen-

eral Wood Preserving Co. v. NLRB, 905 F.2d 803 (4th Cir.

1990), and appears in the Appendix hereto. Also included

in the Appendix are the Orders of the National Labor

Relations Board and the Recommended Decision and Order

of the Board’s Administrative Law Judge, all of which will

be reported as 288 NLRB No. 102.

JURISDICTION

The judgment of the Court of Appeals for the Fourth

Circuit was entered on June 18, 1990. No petition for

rehearing was filed, and this petition for certiorari was

filed within 90 days of the entry of judgment. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

United States Code, Title 29:

Sec. 160(c). Reduction of testimony to writing; find-

ings and orders of Board.

...If upon the preponderance of the testimony taken

the Board shall be of the opinion that any person named

‘General Wood Preserving Company is not publicly traded, nor is

its parent, Investor’s Management Corporation.

in the complaint has engaged in or is engaging in any

unfair labor practice, then the Board shall state its findings

of fact and shall cause to be served on such person an

order requiring such person to cease and desist from such

unfair labor practice, and to take such affirmative ac-

tion... as will effectuate the policies of this subchap-

ter. .

Sec. 160(e). Petition to court for enforcement of order;

proceedings; review of judgment.

... The findings of the Board with respect to questions

of fact if supported by substantial evidence on the record

considered as a whole shall be conclusive. .. .

STATEMENT OF THE CASE

On June 29, 1984, General Wood Preserving Company,

Inc. (General Wood) purchased the assets of the Leland,

North Carolina, wood treatment plant of Burke-Parsons-

Bowlby, Inc. (Bowlby). This purchase represented the cul-

mination of a negotiating process which began in late Jan-

uary, 1984 with Bowlby’s offer to sell the Leland plant to

Stanley Winborne Jr. A former Bowlby employee, Win-

borne had overseen the construction of the Leland facility

in 1979 and had managed the plant for Bowlby for its

initial year of operations before leaving the company in

1980.

After informally agreeing to purchase the plant in early

March, 1984, Mr. Winborne entrusted all further negoti-

ations to his son, Stanley Winborne III. There is no evi-

dence to indicate that Stanley Winborne III ever visited

the Leland facility; his participation in the purchase was

confined to a review of of the financial records of the

plant at Bowlby’s corporate offices in West Virginia.

Immediately prior to the purchase of the Leland plant

assets by General Wood, the AFL-CIO had been pursuing

an organizing campaign at that facility. A representation

petition was filed with the NLRB on February 13, 1984.

An election was scheduled for March 16, 1984, then re-

scheduled to April 6. Prior to the rescheduled election,

Bowlby brought in employees from other facilities who

were argued to be eligible to vote in the election. On April

4, the International Woodworkers of America filed an un-

fair labor practice charge against Bowlby, thereby blocking

the scheduled election.”

A complaint and notice of hearing issued on May 11,

1984, alleging that Bowlby supervisors and managers had

interrogated and threatened employees, promised im-

proved benefits, and engaged in “unit packing’’ by trans-

ferring employees to the Leland plant. The charge of ‘“‘unit

packing’”’ was deleted by amendment of the complaint on

June 8. There is no evidence in the record that either of

the Winbornes were aware of the charge or the complaint.

On June 20, 1984, Stanley Winborne Jr. made a brief

speech to Bowlby employees, informing them that General

Wood had purchased the Leland plant. He announced a

plant shutdown of approximately two weeks’ duration and

further stated that he was “not in favor of the union, but

that the decision was up to them.’’® Eight days later, the

Union sent a telegram, addressed to “Mr. Winburne’”’ of

“General Wood Preserves” at the closed Leland plant,

claiming that it represented a majority of the bargaining

unit employees and asserting that Bowlby had committed

“numerous serious unfair labor practices.’’* The sale of the

plant to General Wood was closed the following day.

Additional unfair labor practice charges were later filed

and the complaint was amended three more times, includ-

* The charge alleged, “On or about March 4, 1984, and thereafter,

the Employer interfered, restrained and coerced those employees who

were forming a labor organization.”

* By this time, the election had been rescheduled for July 3.

‘A mailgram purporting to incorporate a verbatim copy of the Win-

borne telegram was sent to the regional office of the NLRB at 7:30 P.M.

on June 28, 1984, the eve of the date set for closing the asset purchase.

A copy of this mailgram was received into evidence at the adminis-

trative hearing and constituted the only evidence of Winborne’s notice

of Bowlby’s commission of unfair labor practices. (App. 20-21).

ing an amendment re-alleging the charge of unit packing.

After a hearing before Administrative Law Judge Law-

rence W. Cullen, a recommended decision issued on June

30, 1986. The ALJ’s decision found that Bowlby indeed

had committed a number of unfair labor practices, includ-

ing the unit packing claim. The order also concluded that

General Wood was a successor to Bowlby and, as such,

was obligated to remedy Bowlby’s unfair labor practices.

The ALJ found ‘“‘that a bargaining order should issue

against... Bowlby ...in view of Bowlby’s unlawful in-

terrogation, threats, disciplinary warnings, and a suspen-

sion of its employees [sic]’, and most significantly in its

packing of the unit... which dissipated the Union’s ma-

jority, and also in view of the threats of plant closure,

subcontracting out of work, and job loss....”’ (App. 75).

He went on to find that “The combination of these hall-

mark violations [‘threats of plant closure, job loss, and

subcontracting, as well as the unit packing’) and the im-

possibility of remedying these violations by Bowlby as a

result of its sale of the plant clearly demonstrate that it

is no longer possible to conduct a free and fair election.”

(App. 76).

The ALJ concluded that General Wood, as a successor

employer obligated to remedy Bowlby’s unfair labor prac-

tices, would also be required to abide by the bargaining

order. The ALJ also found that General Wood’s conduct

was ‘‘a continuation of the predecessor’s campaign to erode

the Union’s majority status.’”’ Jd. The sole independent

unfair labor practice found to have been committed by

General Wood was its failure to hire seven former Bowlby

employees,* which the ALJ deemed “clearly calculated to

subvert the election process in order to assure a lack of

union support.”’ Jd. The ALJ did not view “the passage

‘One Bowlby employee was suspended for three days.

* After the sale had taken place, the Union charged that General

Wood’s failures to hire were discriminatory as to thirty-five Bowlby

employees. A later charge narrowed the group of alleged discriminatees

to twelve.

of time and the turnover of supervisory personnel at Gen-

eral Wood’” as altering General Wood’s ‘bargaining ob-

ligation as a successor.” Id.

On review by the NLRB, a three-member panel adopted

the recommended order with slight modifications not per-

tinent to this discussion. In so doing, however, the Board

ascribed somewhat different reasons for imposing a bar-

gaining order on General Wood, reasoning that General

Wood’s retention of the Bowlby supervisory force somehow

implicated General Wood as a participant in a continuing

anti-union campaign. (App. 50).

The NLRB then filed a petition for enforcement in the

United States Court of Appeals for the Fourth Circuit.

That Court enforced the Board’s order in all respects, in

a 51-page decision entered June 18, 1990. The Fourth Cir-

cuit’s decision, which does not indicate that it represents

the first instance of successor bargaining order liability,

treats the bargaining order as a natural and foreseeable

result of Bowlby’s unfair labor practices. The Court of

Appeals viewed General Wood’s status as a successor to

Bowlby, General Wood’s ‘‘notice’’ of the commission of

unfair labor practices, and the company’s discriminatory

hiring as creating a circumstance in which it would not

be inequitable to enforce the remedial order against the

successor. This ruling presents yet a third set of reasons

for enforcing the bargaining order against General Wood.

7 By the date of the administrative hearing, most of the Bowlby

supervisors initially hired by General Wood were no longer employed

at the plant, while Greene had been transferred into the nonsupervisory

position of Sales Manager. The two prime offenders in Bowlby’s man-

agement, Richard Bowlby and Carl Williams, never became employees

of General Wood. The composition of the hourly workforce was also

quite different than it had been in June, 1984.

REASONS FOR GRANTING THE WRIT

I. THERE IS SUBSTANTIAL CONFLICT AMONG THE CIR-

CUIT COURTS OF APPEALS RESPECTING THE AP-

PROPRIATE ANALYSIS OF BOARD ACTION

ORDERING AN EMPLOYER TO BARGAIN WITH AN

UNCERTIFIED LABOR ORGANIZATION.

A. This Case Poses A Significant Unsettled Question

Respecting The Circumstances Where A Bargain-

ing Order Is The Appropriate Remedy.

The decision of the National Labor Relations Board in

this case, as enforced by the Fourth Circuit, represents

the outer reaches of a doctrine first recognized by this

Court twenty years ago and not revisited since.

In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),

this Court held that if a labor union with demonstrated

majority support had been subjected to an employer’s per-

vasive unfair labor practices calculated to undermine that

majority, the Board could consider issuing a “bargaining

order,’”’ compelling the employer to recognize and negotiate

with the union without first requiring the normal election

procedures. 395 U.S. at 614. The most egregious employer

misconduct, “marked by ‘outrageous’ and ‘pervasive’ un-

fair labor practices,’’ might lead to a bargaining order even

in the absence of demonstrated majority support for the

union. 395 U.S. at 613. This characterization has come to

be known as “‘Gissel Category I.” In instances treating

employer misconduct of a lesser degree, a bargaining order

could issue only “where there is a showing that at one

point the union had a majority.” 395 U.S. at 614. As the

opinion makes clear, the Court’s holding was limited to

these “‘Gissel Category II’’ cases. Id.

Notwithstanding this Court’s clear caution in Gissel that

the remedy of a bargaining order should be infrequently

invoked, 395 U.S. at 615, the Board resorts to the issuance

of bargaining orders with regularity. See NLRB v. Marion

Rohr Corp., 714 F.2d 228, 230 (2d Cir. 1983) (noting the

Board’s “‘well-established preference for issuing a bargain-

ing order”); NLRB v. Village IX, Inc., 723 F.2d 1360, 1371

(7th Cir. 1983) (commenting that the Board “‘overuses the

bargaining order’’). Rather than reserving this extraordi-

nary remedy only for instances in which ‘‘the possibility

of erasing the effects of past practices and ensuring a fair

election (or a fair rerun) by the use of traditional remedies,

though present, is slight’’, 395 U.S. at 614, it has become

routine for the Board to impose bargaining orders me-

chanically, with no consideration given to whether tradi-

tional remedies would suffice. NLRB v. J. Coty Messenger

Service, 763 F.2d 92, 99-101 (2d Cir. 1985); NLRB v. Ap-

pletree Chevrolet, Inc., 608 F.2d 988, 998 (4th Cir. 1979);

Red Oaks Nursing Home, Inc. v. NLRB, 633F.2d 503, 510

(7th Cir. 1980). Indeed, many have questioned whether the

standards developed by the Board and adopted by the

courts of appeals have strayed from the precepts first

articulated in Gissel. John Cuneo, Inc. v. NLRB, 459 U.S.

1178 (1983) (Rehnquist, J., joined by Powell, J., dissenting

from the denial of a petition for writ of certiorari).

Complicating any reasoned review in this area is the

Board’s practice of abbreviated analysis, whereby the

Board typically adopts without elaboration the evaluations

of the Administrative Law Judge. International Union,

UAW v. NLRB, 802 F.2d 969, 972 (7th Cir. 1986); NLRB

v. Atlas Microfilming, Inc., 753 F.2d 3138, 320-21 (3d Cir.

1985) (Adams,J., concurring). This confusion is com-

pounded by the Board’s use of boilerplate language and

its adoption of the term “hallmark violation” to designate

those types of misconduct which it considers sufficiently

deplorable to support the imposition of a bargaining order.®

As employed by the Board, Gissel analysis has evolved

into the statement of a series of legal conclusions, unac-

*The expression “hallmark violation’ has its genesis in the first

decision in NLRB v. Jamaica Towing, Inc., 602 F.2d 1100, 1104 (2d

Cir. 1979), where the court employed the phrase to denominate highly

coercive unfair labor practices. Since that decision, that court has strug-

gled with the significance which should be attributed to the finding of

a hallmark violation. See e.g. NLRB v. Windsor Indus., Inc., 730 F.2d

860, 866 (2d Cir. 1984) (presence of hallmark violation “‘does not au-

tomatically cal! for a bargaining order’’).

companied by any discussion of the dispositive factual fea-

tures of the particular case. Such an ipse dizxit approach

deprives the reviewing court of the opportunity for mean-

ingful review of the legal basis for imposition of the bar-

gaining order. Montgomery Ward & Co. v. NLRB, 904 F.2d

1156, 1159 (7th Cir. 1990). A rising level of frustration

with this Board practice has led some reviewing courts to

decline to remand cases to the Board for further consid-

eration of the propriety of the bargaining order remedy.

NLEB v. Pace Oldsmobile, Inc., 739 F.2d 108, 111-12 (2d

Cir. 1984); NLRB v. Village IX, Inc., 723 F.2d 1360, 1373

(7th Cir. 1983).

Generally speaking, the Courts of Appeals for the Sec-

ond and Seventh Circuits subject Board petitions for en-

forcement of bargaining orders to the most rigorous

scrutiny. NLRB v. Pace Oldsmobile, 739 F.2d 108, 111-12

(2d Cir. 1984); NLRB v. Loy Food Stores, 697 F.2d 798,

801 (7th Cir. 1983). The District of Columbia Circuit also

requires the Board to state substantial reasons justifying

the issuance of a bargaining order. St. Agnes Medical Cen-

ter v. NLRB, 871 F.2d 187, 147-49 (D.C.Cir. 1989).

In contrast, the full Third Circuit has announced, in two

strongly divided decisions, that it will confine its review

of the Board’s action to an abuse-of-discretion standard.

NLRB v. Permanent Label Corp., 657 F.2d 512, 521 (8rd

Cir. 1981\en banc), cert. denied, 455 U.S. 940 (1982); NLRB

v. Keystone Pretzel Bakery, Inc., 696 F.2d 257 (3d Cir.

1982\en banc). The Sixth Circuit, while at times suggesting

that its review is heightened in cases involving bargaining

orders, NLEB v. Valley Plaza Inc., 715 F.2d 237, 244 (6th

Cir. 1983), also professes extreme deference to the Board’s

remedial discretion. Indiana Cal-Pro, Inc. v. NLRB, 863

F.2d 1292, 1302 (6th Cir. 1988). Other circuits are in ap-

parent dissarray with respect to the review of Gissel or-

ders. See e.g. NLRB v. Horizon Air Services, Inc., 761

F.2d 22 (1st Cir. 1985); NLRB v. Dadco Fashions, Inc.,

632 F.2d 493 (5th Cir. 1980); NLRB v. Ely’s Foods, Inc.,

656 F.2d 290 (8th Cir. 1981); Sahara Datsun, Inc. v. NLRB,

811 F.2d 1317 (9th Cir. 1987); NLRB v. Wilhow Corp.,

i |

666 F.2d 1294 (10th Cir. 1981); Piggly Wiggly, Tuscaloosa

Div. Commodores Point Terminal Corp. v. NLRB, 705 F.2d

1537 (11th Cir. 1983).

The Fourth Circuit, in NLRB v. Apple Tree Chevrolet,

Inc., 671 F.2d 838 (4th Cir. 1982), severely chastised the

Board for failing to justify adequately the need for a bar-

gaining order, stating that the reasons advanced by the

Board were “‘‘only conclusory statements clothed with little

more than transparent factual generalities.” 671 F.2d at

841. Since the adoption of an especially deferential stand-

ard of review in the en banc decision in NLRB v. Maids-

ville Coal Co., 693 F.2d 1119 (4th Cir. 1982), enf'd on reh’g

en banc , 718 F.2d 658 (1983), cert. denied, 465 U.S. 1079

(1984), the court had not published another bargaining or-

der decision prior to the one here under review.

The touchstone of Gissel is the recognition that certain

unfair labor practices may so pervasively intimidate the

workforce and so compromise the normal election proce-

dures that traditional remedies are deemed insufficiently

curative. 395 U.S. at 614. Clearly, any factual foundation

for the issuance of a bargaining order must incorporate

specific findings respecting the breadth and depth of the

coercive sentiment felt in the workforce as well as some

assessment of the futility of traditional remedies. Any rem-

edy fashioned by the Board should, at < minimum, be

shown to “be tailored to the unfair labor practice it is

intended to redress.’”’ Sure-Tan, Inc. v. NLRB, 467 U.S.

883, 900 (1984). Some appellate courts have attempted to

address this issue squarely by describing the nature of

factual findings adequate to support the issuance of a bar-

gaining order. Peoples Gas System, Inc. v. NLRB, 629 F.2d

35, 46 (D.C.Cir. 1980); NLRB v. American Spring Bed

Mfg. Co., 670 F.2d 1236, 1247 (1st Cir. 1982); J.J. New-

berry Co. v. NLRB, 645 F.2d 148, 153-54 (2d Cir. 1981).

The Board generally disregards these standards, dis-

playing a ‘“‘stubborn refusal ... to make adequate findings

to support the issuance of a bargaining order”. NLRB v.

Village IX, Inc., 723 F.2d 13860, 1371 (7th Cir. 1983).

In the instant case, the findings of the ALJ respecting

the propriety of a bargaining order are particularly brief:

I find that a bargaining order should issue against

Respondent Bowlby in view of Bowlby’s unlawful in-

terrogation, threats, disciplinary warnings and a sus-

pension of its employees, and most significantly in its

packing of the unit by importing employees to subvert

the election process which dissipated the Union’s ma-

jority, and also in view of the threats of plant closure,

subcontracting out of work, and job loss engaged in

by Bowlby including its threats of subcontracting and

that of unspecified reprisals issued by its president.

The threats of plant closure, job loss, and subcon-

tracting, as well as the unit packing, clearly constitute

hallmark violations. The combination ©: these hall-

mark violations and the impossibility of remedying

these violations by Bowlby as a result of its sale of

the plant clearly demonstrate that it is no longer pos-

sible to conduct a free and fair election.

(App. 75-76).

This reasoning is faulty in two critical respects: First,

in focusing upon the types of unfair practices charged—

particularly the failed attempt to pack the unit*—rather

than their frequency or extent, the ALJ neglected to make

any reference to the perceived corrupting effect of these

practices or why this taint would linger and thus preclude

an election. Second, the ALJ’s reliance upon the sale of

the company as a basis for his finding that traditional

remedies would be unavailing is not only deductively un-

tenable, it is hopelessly at odds with the finding that Gen-

eral Wood is obligated to remedy these same unfair

practices. Compare, Mid-South Bottling Co. v. NLRB, 876

* Unit packing, successful or not, has rarely been held to constitute

so serious an unfair labor practice as to require a bargaining order,

perhaps owing to the ease with which the Board's election procedures

allow for the challenge of the “‘packed” voters. House of Cycie, Inc.,

264 NLRB 1030, 1031 (1982); Trend Construction Corp., 263 NLRB

295 (1982); Yaloz Mold & Die Co., 256 NLRB 30 (1981).

F.2d 458, 463-64 (5th Cir. 1989) (directing employer to re-

open plant and bargain with newly-certified union); NLRB

v. National Car Rental Systems, Inc., 672 F.2d 1182 (3d

Cir. 1982) (reinstatement order directed to successor does

not also require the successor to bargain).

The Fourth Circuit, avoiding any critical review of the

Board-adopted conclusions of the ALJ, perfunctorily noted

that an election “‘is the traditional and preferred method

for determining the bargaining agent for employees,” but

nonetheless concluded that the imposition of a bargaining

order against General Wood was an appropriate exercise

of the Board’s discretion. (App. 46). In doing so the court

advanced a novel and entirely independent rationale for

the justification of the bargaining order: that Bowlby’s

attempt to pack the unit as well as General Wood’s dis-

criminatory hiring practices both constituted “hallmark vi-

olations” which, when considered cumulatively, rose to a

Gissel Category I degree of severity. (App. 43-44). Such

an approach carries the Gissel doctrine to an unprece-

dented and unsupported extreme.

The opinions below characterize various flippant remarks

made by Bowlby’s supervisors and heard by no more than

ten employees as “repeated threats of plant closure,” thus

falling at least within the purview of Gissel Category II.

The disciplinary warnings given to union adherents by

Bowlby were treated in a similar manner. No significance

was attributed to the narrow scope of the disciplinary ac-

tion—only four employees received these private written

warnings—or the fact that Bowlby’s personnel files were

not transferred or otherwise made available to General

Wood. These unfair campaign activities, touching a rela-

tively small percentage of the proposed unit of sixty-four

members, simply do not rise to the level contemplated by

Gissel, incapable of redress by lesser remedies. The lower

court clearly erred in so holding.

B. This Case Poses A Significant Unsettled Question

Respecting The Effect Of Intervening Events On

The Propriety Of A Bargaining Order Remedy.

This case squarely presents the issue of whether the

Administrative Law Judge and the Board are required to

weigh the ameliorative effects of events occurring after

the commission of the charged unfair labor practices and

prior to the decision-maker’s consideration of the case and

determination of an appropriate remedy.

Courts of appeals have often remanded cases to the

Board and directed consideration of the mitigating effects

of the passage of time and events transpiring since the

commission of the charged unfair labor practice. Impact

Industries, Inc. v. NLRB, 847 F.2d 379, 383 (7th Cir.

1989); NLRB v. Knogo Corp., 727 F.2d 55, 60 (2d Cir.

1984). The Court of Appeals for the Second Circuit is

particularly demanding on this point. NLRB v. J. Coty

Messenger Service, Inc., 763 F.2d 92, 101 (2d Cir. 1985).

Those courts which adhere to this perspective often point

out that if it can be demonstrated that the passage of

time or employee turnover has dissipated the coercive ef-

fects of the employer’s unfair labor practices, the necessity

for the imposition of the extraordinary remedy has been

vitiated. First Lakewood Associates, Inc. v. NLRB, 582

F.2d 416, 424 (7th Cir. 1978). Even in the case of an

employer whose “intransigent recidivism” is “patent and

overt,”’ consideration must be given to a rerun election,

the preferred method for determining the wishes of the

employees.

[S}ince a Board-conducted election is the preferred

mode of determining employee sentiment, the Board

should approach the bargaining order with some cau-

tion. The touchstone is the protection of employee free

choice. If, at the time of the Board proceedings, the

conditions at the plant are such that a fair election

is probable, the Board should not issue a bargaining

order.

J.P. Stevens & Co. v. NLRB, 441 F.2d 514, 524-25 (5th

Cir.) (emphasis added), cert. denied, 404 U.S. 830 (1971).

Several appellate courts, however, support the Board’s

position by rejecting any consideration of post-violation

events. Exchange Bank v. NLRB, 732 F.2d 60, 64 (6th

Cir. 1984); NLRB v. Fort Vancouver Plywood Co., 604 F.2d

596 (9th Cir. 1979), cert. denied, 445 U.S. 915 (1980);

NLRB v. Wilhow Corp., 666 F.2d 1294, 1304-05 (10th Cir.

1981). The reasoning offered in most of these decisions is

. that consideration of subsequent events would serve to

reward employer intransigence and promote administrative

delay. Hedstrom Co. v. NLRB, 629 F.2d 305, 312 (8d Cir.

. 1980Xen banc), cert. denied, 450 U.S. 996 (1981); NLRB

v. L.B. Foster Co., 418 F.2d 1, 4 (9th Cir. 1969), cert.

denied, 397 U.S. 990 (1970); but compare, NLRB v. Buckley

Broadcasting Co., 891 F.2d 230, 234-35 (9th Cir. 1989),

cert. denied, 495 U.S. __., 110 S.Ct. 2619, 110 L.Ed.2d

640 (1990), and NLRB v. Western Temporary Services,

Inc., 821 F.2d 1258, 1270 (7th Cir. 1987) (changed circum-

stances are relevant only in the absence of a recognized

or certified union). Whatever the position of a particular

court of appeals, the issue has been a persistent subject

of debate. NLRB v. Creative Food Design, Inc., 852 F.2d

1295, 1805 (D.C.Cir. 1988) (Starr,J., dissenting); Bandag,

Inc. v. NLRB, 583 F.2d 765, 774 (5th Cir. 1978) (Clark,J.,

dissenting); NLRB v. Quality Aluminum Products, Inc.,

813 F.2d 795, 798 (6th Cir.) (Krupansky,J., dissenting),

cert. denied, 484 U.S. 825 (1987); Montgomery Ward &

Co. v. NLRB, 904 F.2d 1156, 1162 (7th Cir. 1990) (Eas-

terbrook,J., concurring); see also Note, “After All, Tomor-

row Is Another Day”: Should Subsequent Events Affect the

Validity of Bargaining Orders?, 31 Stan. L. Rev. 505

(1979); Note, The Gissel Bargaining Order: Is Time A

Cure-All?, 26 Duquesne L. Rev. 447 (1987).

The intervening occurrences most often cited as signif-

icant to an analysis of the appropriate remedy are an

unusually high degree of turnover in the workforce, Mont-

gomery Ward & Co. v. NLRB, 904 F.2d 1156, 1160 (7th

Cir. 1990), and the discharge of supervisors responsible

Ne er kee OE Ei re sh eee es date

for the most opprobrious conduct. NLRB v. Pilgrim Foods,

Inc., 591 F.2d 110, 119 (1st Cir. 1987); First Lakewood

Associates v. NLRB, 582 F.2d 416, 424 (7th Cir. 1978).

Also, a change in ownership has been held to be a relevant

factor in determining whether a recurrence of the unfair

labor practices is probable, particularly in those cases

where the anti-union animus emanated from uppermost

management. NLRB v. American Cable Systems, Inc., 427

F.2d 446, 448 (5th Cir.), cert. denied, 400 U.S. 957 (1970);

Impact Industries, Inc. v. NLRB, 847 F.2d 379, 383 (7th

Cir. 1988).

In one of the few cases in which the Board has sought

to enforce a bargaining order against a successor em-

ployer, the court in NLRB v. Cott Corp., 578 F.2d 892

(1st Cir. 1978), concluded that where “‘both the employer

who committed the unfair practices believed to have poi-

soned the electoral climate and the employees who were

subjected to these influences have left the scene... an

election again becomes the best way of discovering the

employees’ intent.” 578 F.2d at 895.

Amidst the debate, and disavowing the supervisory au-

thority of the appellate courts’, the Board steadfastly

clings to the notion that events occurring after the com-

mission of unfair labor practices are irrelevant to the con-

sideration of an appropriate remedy. One recent opinion

which denied the post-hearing introduction of evidence of

broad employee turnover epitomizes the Board’s stance

regarding the significance of intervening events.

In determining whether a bargaining order is appro-

priate, the Board has specifically held that ‘the valid-

” The Board recognizes only its own prior precedents and the rulings

of the United States Supreme Court as controlling. See Limpert Bros.,

Inc., 276 NLRB 364, 380 (1985), enfd mem., 800 F.2d 1135, reh’g

denied, 800 F.2d 333 (8d Cir. 1986), cert. denied, 479 U.S. 1087 (1987).

With respect to post-violation events, the Board has stated that ‘‘the

administration of the Act, for which we are responsible, requires that

we await a final disposition by the Supreme Court of the issue in order

to resolve the conflict with other circuits on this important issue.”’

Chandler Motors, Inc, 2836 NLRB 1565, 1566 n.8 (1978).

ity of a bargaining order depends on an evaluation

of the situation as of the time the unfair labor prac-

tices were committed.’ Highland Plastics, 256 NLRB

146, 147 (1981). Thus, the evidence concerning em-

ployee turnover that the Respondent offers is an ir-

relevant consideration when assessing the propriety

of issuing a Gissel bargaining order. Salvation Army

Residence, 293 NLRB No. 118, slip op. at 4 (May 9,

1989).

Action Auto Stores, Inc., 298 NLRB No. 135, Slip op. at

3 (1990).

In this case, the ALJ based the imposition of the bar-

gaining order exclusively upon events occurring prior to

the sale of the plant, apparently disregarding evidence

relating to the significant changes transpiring at the fa-

cility in the interim. For example, the opinion of the ALJ

makes no reference to evidence that the two Bowlby of-

ficials who were most outspoken in espousing anti-union

sentiment (owner Richard Bowlby and plant manager Carl

Williams) never became associated with General Wood.

Neither did the ALJ concede the significance of the fol-

lowing salient fact: of the seven Bowlby supervisory em-

ployees found to have engaged in any conduct constituting

an unfair labor practice, only two were still employed at

the facility at the time of the hearing. Although the issue

was plainly presented on appeal, the opinion of the court

of appeals makes no mention of it.

Intervening remedial events occurring at the plant were

accorded no significance in the choice of an appropriate

remedy in this case. Fidelity to Gissel mandates that the

Board meaningfully evaluate the likelihood of conducting

a fair rerun election. It is manifest that this evaluation be

made in light of circumstances prevailing at the time the

appropriate remedy is determined. The Board and the re-

viewing court of appeals clearly erred in their curt rejec-

tion of these relevant considerations.

C. This Case Poses A Significant Unsettled Question

Respecting The Power of The Board to Issue A

Bargaining Order Absent A Showing of Majority

Support.

The result reached by the court of appeals in this case

represents the first instance in which a bargaining order

has been imposed absent a showing of majority union sup-

port in the workforce subject to the order. While Petitioner

concedes, as it must, that a majority of the employees of

the facility favored an election at a time when the plant

was owned by Bowlby, no accepted method of appraising

employee sentiment yields a like result respecting the

workforce as it actually existed at General Wood. Because

the ALJ treated the issue strictly as an inchoate bargain-

ing obligation devolving upon the successor, he made no

findings with respect to union majority status at the Gen-

eral Wood facility.

Of the forty-three employees in the proposed bargaining

unit, eighteen had not previously worked at the Leland

facility and therefore had not been present during the

organization drive. Seven Bowlby employees who had not

signed the representation petitions also were employed by

the new company. Conversely, eighteen members of the

proposed unit were former Bowlby employees who had

purportedly signed petitions, although only fourteen sig-

natures were authenticated." As recognized by the Court

of Appeals, “a total of 25, or a majority, of those 43

employees had not opted in favor of the Union.” (App.

37).

The court then proceeded to credit the signatures of the

seven alleged discriminatees and discount a corresponding

“ The Court of Appeals accepted as authentic all eighteen signatures,

reasoning that had the Genera] Counsel been aware of the significance

of the authentication issue respecting the remaining four signatures ‘‘in

all likelihood he would have been able to have done [so]. (App. 39

n.83Xemphasis supplied). The Genera] Counsel bears the burden of prov-

ing the authenticity of each signature. J.P. Stevens & Co., 268 NLRB

63 (1983).

number of unit members who were not signatories to the

petitions. This operation resulted in a finding that twenty-

five of the forty-three unit members had elected union

representation, the court concluding that “it can be said

with far greater likelihood than not that a majority of the

employees in General Wood’s unit would have been found

to have signed the petitions opting for union representa-

tion but for General Wood’s discriminatorily having re-

fused to hire the seven former Bowlby unit employees who

had signed the petitions.”’ (App. 39) (emphasis supplied).

The Fourth Circuit thus crafted a ‘“‘constructive major-

ity”’ by (a) counting four unauthenticated petition signa-

tures; (b) including the votes of the seven alleged

discriminatees; and (c) disregarding the wishes of seven

individuals actually employed by General Wood. Such a

conjectural method of computation contradicts the evident

composition of the General Wood workforce and is con-

trary to prior decisions of the Board. Thus, despite at-

tempts to portray the bargaining order imposed against

General Wood as one based upon a showing of prior ma-

jority status, it is in all respects a minority bargaining

order.

The Court of Appeals for the District of Columbia Cir-

cuit is the only reviewing court which has fully examined

the remedial authority of the Board to issue a minority

ining order. Conair Corp. v. NLRB, 721 F.2d 1355

(D.C. Cir. 1983), cert. denied, 467 U.S. 1241 (1984); see

also United Dairy Farmers Co-Op Association v. NLFB,

633 F.2d 1054, 1066-69 (3d Cir. 1980) (concluding that, in

theory, a minority bargaining order was within the Board’s

remedial authority). Scrutinizing the holding in Gissel, the

District of Columbia Circuit Court rebuffed the Board’s

attempt to enforce a bargaining order in a situation where

it could not be shown that a majority of the members of

the proposed bargaining unit favored union representation.

“Absent a union election victory or some other concrete

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.”” 721 F.2d

at 1383. Soon thereafter, the Board acquiesced, agreeing

that it was beyond the remedial authority conferred in

Section 10(c) of the Act to issue a bargaining order in a

non-majority setting. Gourmet Foods, 270 NLRB 578

(1984).

In sum, the unprecedented and speculative method by

which majority union support was found to have existed

within the proposed bargaining unit was erroneous, and

results in a form of redress which finds no support in the

Board’s own remedial analysis. Without the essentia. pred-

icate of proof of majority union support, the imposition of

a bargaining order against General Wood must fail.

D. This Case Poses A Significant Unsettled Question

Respecting The Proper Role of the Appellate Court

In the Review of An Administrative Adjudication.

In its review of this case, the court below engaged in

considerable independent fact-finding, including drawing a

number of significant inferences from the administrative

record which were neither presented by the parties nor

relied upon in any prior proceedings. In doing so, the court

exceeded the proper scope of appellate review.

The scope of review for the factual findings of an ad-

ministrative agency is a familiar one: The reviewing court

is bound by the agency’s findings of fact if they are sup-

ported by substantial evidence in the record considered as

a whole. 29 U.S.C. § 160 (e); Universal Camera Corp. v.

NLRB, 340 U.S. 474 (1951). At the same time, however,

in considering the legal basis of the agency action the court

may not attempt to make up for deficient agency analysis

by independently supplying a basis for the action upon

which the agency itself did not rely. SEC v. Chenery Corp.,

332 U.S. 194, 196 (1947); Federal Power Commission v.

Texaco, Inc., 417 U.S. 380, 397 (1974). In the context of

the review of NLRB action, one court of appeals has sum-

marized its review as follows:

If the Board applies an erroneous legal rule in con-

cluding that the facts establish a violation of the Act

... Wwe are not bound by the Board’s conclusion that

the Act has been violated. See Allied Chemical & Al-

kali Workers v. Pittsburgh Plate Glass Co., 404 U.S.

157, 182, 92 S.Ct. 383, 399, 30 L.Ed.2d 341 (1971)

(“the legal standard to be applied is ultimately for

the courts to decide and enforce’’). Instead, we apply

the Board’s factual findings to the correct legal stand-

ard. If the Board has not made a necessary finding,

we may nevertheless sustain its conclusion if the re-

cord clearly supports the omitted finding. If the re-

cord is unclear, we may remand to the agency for

further proceedings. If the record clearly provides no

support for the necessary finding, however, we may

deny enforcement without resort to remand. See Delco-

Remy Div., Gen. Motors Corp. v. NLRB, 596 F.2d

1295, 1309-10 (5th Cir. 1979).

Pioneer Natural Gas Co. v. NLRB, 662 F.2d 408, 411 (5th

Cir. 1981). Such a standard is consistent with past deci-

sions of this Court which state that a reviewing court

should “uphold a decision of less than ideal clarity if the

agency’s path may reasonably be discerned.” Bowman

Transportation, Inc. v. Arkansas-Best Freight Systems,

Inc., 419 U.S. 281, 286 (1974). In its most recent term,

this Court stated that ‘‘it is elementary that if an agency’s

decision is to be sustained in the courts on any rationale

under which the agency’s factual or legal determinations

are entitled to deference, it must be upheld on the ra-

tionale set forth by the agency itself.”’ Fort Stewart Schools

v. FLRA, 495 U.S. __ , 110 S.Ct. 2043, 2049, 109 L.Ed.2d

659, 672 (1990).

By contrast, in its review of this case the Fourth Circuit

devised its own justifications for the Board’s conclusions,

employing an independent examination of the administra-

tive record, supplemented by inferences which the court

deemed reasonable. Notable among these conclusions are

the court’s examination of the majority status issue, dis-

cussed in Sec. I(C), and its estimation of the intimidating

effects of the attempted unit packing and discriminatory

hiring, an evaluation which led the court to its erroneous

classification of this case as falling within Gissel Category

I. (App. 43-44).

At this juncture, it is important to bear in mind that

neither the ALJ nor the Board made any findings relating

to the workforce sentiment engendered by Bowlby’s at-

tempt to pack the unit. Additionally, the only findings

relating to the effects of General Wood’s alleged discrim-

inatory hiring practices are to be found in a passing ob-

servation made by the Board. (App. 50). Against this rather

stark backdrop, the reviewing court presumed the follow-

ing effects of the attempted unit packing:

Rigging or attempting to rig an election in which

candidates are standing for election to public office

is criminal in most if not all jurisdictions of the United

States. It has pervasive, enduring and adverse effects

in the electoral process in that it thwarts the law and

the public weal and creates doubt in the minds of

some voters as to whether the casting of their votes

in future elections is not an idle exercise and thus

undermines the integrity of the system. Unit packing

by Bowlby here, the counterpart of such rigging in a

public election, almost certainly had equally pervasive,

enduring and adverse effects upon the minds of Bowl-

by’s employees in the unit.

(App. 48).

Similar treatment was accorded the effects of General

Wood’s alleged discriminatory hiring practices; the court

opined that since, as a general proposition, the discharge

of union activists creates a formidable intimidating effect,

a similar presumption should attach to General Wood’s

alleged refusal to hire the seven signatories to the rep-

resentation petitions. (App. 43).

However plausible, the “‘common sense”’ reaction of the

Fourth Circuit cannot be considered to be a substitute for

substantial evidence in the record. Under Gissel, it is the

responsibility of the administrative agency to make a

meaningful inquiry into the effects of unfair labor practices

with due regard to the unique circumstances of each work-

force and workplace. The abstruse generalizations of the

appellate court, divorced from the facts of the case before

it, serve to undermine the integrity of Gissel. Such an

approach reduces the mandated fact-intensive and interest-

sensitive analysis to a mere recitation of the types of un-

fair labor practices found followed by hit-and-run citations

to prior decisions holding like practices to constitute ‘‘hall-

mark’’ violations.

The Fourth Circuit ultimately furnished an entirely orig-

inal legal basis for justifying the bargaining order against

General Wood. While the Board had viewed the pivotal

legal issue as one respecting the derivative liability of a

successor, the court of appeals rested its decision upon

the primary liability of General Wood stemming from its

own alleged discriminatory hiring practices. (App. 43). In

effect, therefore, the Fourth Circuit created two bargain-

ing orders, one directed against Bowlby and another

against General Wood, each resting upon distinct miscon-

duct. The court ignored the sufficiency of the Board’s tra-

ditional reinstatement and back-pay remedy for General

Wood’s refusal to hire. Confronted with a similarly flawed

majority opinion, one judge recently observed:

In an impressive piece of advocacy, my colleagues

summon up arguments that the Board, blinded by its

doctrinaire approach ... has not made (and for aught

that appears, has not even thought of). I repeat: nei-

ther the ALJ nor the Board even mentioned the Com-

pany’s employee-turnover argument. The reasons the

court supplies for the Board’s not doing so amount

to classic ad hoc rationalizing, which is but a different

species of a no-no which should by now have been

quite settled in the precincts of this courthouse. Ad

hoc rationalizing by agencies (or by courts on their

behalf) simply will not do.

NLRB v. Creative Food Design Ltd., 852 F.2d 1295, 1306-

07 (D.C.Cir. 1988\Starr, J., dissenting).

In this case, the court of appeals deviated from accepted

norms of judicial review by supplying its own justification

for the imposition of a bargaining order against General

Wood. Acceptance of the court’s reasoning reduces the

interest-balancing analysis of Gissel to the following syl-

logism: ‘All Section 8(aX3) infractions constitute hallmark

violations falling within the ambit of Gissel Category |;

the presence of hallmark violations will always support the

issuance of a bargaining order; therefore, so long as the

Board provides the factual predicate for a finding of any

Section 8(aX3) violation, the discretion of the Board in

issuing a bargaining order will not be questioned by the

reviewing court.’”’ Meaningful appellate review of agency

determinations should not be so blithely discarded.

In conclusion, the varying analytical models adopted by

the reviewing courts have produced a plethora of incon-

sistent decisions, rendering impossible any reasoned anal-

ysis in this area.1? Justice Holmes contended that the legal

profession exists to predict “the incidence of the public

force through the instrumentality of the courts’, and that

reported decisions provide “the scattered prophecies of the

past upon the cases in which the axe will fall.”” Holmes,

The Path of the Law, 10 Harv. L. Rev. 457 (1897). A

review of the progeny of Gissel, however, yields more

uncertainty than prophecy.

II. THIS CASE REPRESENTS THE FIRST INSTANCE IN

WHICH ENFORCEMENT OF A BARGAINING ORDER

IS SOUGHT AGAINST A BONA FIDE SUCCESSOR EM-

PLOYER.

This case also raises issues concerning the farthest ex-

tent to which liability might be imposed upon a successor

employer under the doctrine first announced by this Court

12 One empirical study of the appellate courts’ review of petitions for

enforcement of bargaining orders concluded that “the most significant

predictors of the probability for enforcement are whether the Second

or Seventh Circuits decided the case.” Bethel & Melfi, Judicial En-

forcement of NLRB Bargaining Orders: What Influences The Courts?,

22 U. C. Davis L. Rev. 139, 173 (1988).

RS Se LE a Ee IER ETE BNL Se EE LI EM LN TRY Se eS NEE nS oe nn

in Golden State Bottling Co. v. NLRB, 414 U.S. 168

(1973).'* In Golden State this Court held that a successor

corporation could be held liable to provide redress (in the

form of back pay and job reinstatement) for its predeces-

sor’s discriminatory discharge of union adherents, relying

upon NLRB v. Burns International Security Services, Inc.,

406 U.S. 272 (1972).

This Court clarified its holding in Golden State the fol-

lowing term. Howard Johnson Co. v. Detroit Local Joint

Executive Board, 417 U.S. 249 (1974), held that a successor

corporation was not obligated by its predecessor’s collec-

tive bargaining agreement to arbitrate employee griev-

ances. Recapitulating the prior successorship cases, the

opinion emphasizes both the fact-intensive nature of the

inquiry as well as the delicate balancing of the relevant

interests:

[T]he real question in each of these “‘successorship”’

cases is, on the particular facts, what are the legal

obligations of the new employer to the employees of

the former owner or their representative. The answer

to this inquiry requires analysis of the interests of

the new employer and the employees and of the pol-

icies of the labor laws in light of the facts of each

' case and the particular legal obligation which is at

issue, whether it be the duty to recognize and bargain

with union, the duty to remedy unfair labor practices,

the duty to arbitrate, etc.... A new employer, in

other words, may be a successor for some purposes

and not for others.

Howard Johnson, 417 U.S. at 262 n. 9.

* There has been no suggestion that General Wood is the alter ego

of Bowlby or that the facility was sold for the purpose of evading any

bargaining obligation. Regal Knitwear Co. v. NLRB, 324 U.S. 9, 13-

14 (1945). Moreover, neither the ALJ nor the Board found the sale of

the plant to constitute an unfair labor practice. Compare, Mid-South

Bottling Co. v. NLRB, 876 F.2d 458 (5th Cir. 1989) (employer required

to re-open plant and bargain with union).

The notions of employer successorship first developed

under the authority of Burns and Golden State have since

been employed by the Board in cases seeking to hold local

labor organizations liable for remedying the unfair labor

practices of their predecessors. NLRB v. Local Union No.

46, Metallic Lathers, 727 F.2d 234, 287 (2d Cir. 1984);

Local Union No. 5741, United Mine Workers of America

v. NLRB, 865 F.2d 733, 736 (6th Cir. 1989).

The general analytical method has also been applied to

successorship issues arising in the context of employment

discrimination litigation. The analysis first announced in

Golden State has been applied to similar issues arising

under Title VII, Bates v. Pacific Maritime Association, 744

F.2d 705, 708 (9th Cir. 1984); EEOC v. MacMillan Bloedel

Containers, Inc., 503 F.2d 1086, 1091 (6th Cir. 1974), as

well as claims founded upon 42 U.S.C. § 1981. Musiki-

wamba v. ESSI, Inc., 760 F.2d 740, 744-47 (7th Cir. 1985).

Central to any Golden State successorship analysis is the

element of notice. The sine qua non of successor liability

is the perceived ability of the purchasing entity to identify

(and quantify) the cost of assuming the seller’s liabilities,

thereby enabling the purchaser to secure indemnity from

the seller’ or negotiate adjustments in the purchase price.

Golden State, 414 U.S. at 185. It is essential, therefore,

for the Board to establish that the successor possessed

knowledge of the liability sought to be imposed."

“Contrary to the “findings” of the court of appeals, see App. 25 n.

23, the asset purchase agreement entered into between Bowlby and

General Wood did in fact contain a term calling for Bowlby to indemnify

the purchaser for any undisclosed or unknown liabilities. However, this

provision also required General Wood to seek indemnity within one

year of the purchase. Since the determination of the ALJ imposing the

bargaining obligation was not entered until two years after the sale,

the indemnification clause of the agreement was rendered ineffectual.

* Although in past administrative decisions the Board has stated that

notice to the successor is presumed and it is therefore incumbent upon

the successor to prove lack of notice, Am-Del-Co, Inc., 234 NLRB 1040,

enf'ment denied sub nom. Merchants Home Delivery Service, Inc. v.

NLRB, 580 F.2d 966 (9th Cir. 1978), no court of appeals has yet

Oooo ooo

All of the opinions below have erroneously placed great

emphasis upon the telegram allegedly sent to Winborne

on the day prior to the closing of the sale of the plant

assets. (App. 21, 77). The document introduced into evi-

dence was a photocopy of a mailgram directed to the re-

gional office of the NLRB purporting to contain the text

of a telegram to Winborne. The mailgram reflects that it

was transmitted at 7:30 p.m. on June 28, 1984, the eve

of the closing. The mailgram also indicates that the si-

multaneous transmission to Winborne was addressed to

him at the post office box of Bowlby’s Leland plant, which

had been closed for more than a week. Also significant is

the absence of any reference to the deleted unit packing

claim, which the ALJ, the Board and the court of appeals

later considered to tip the scales in favor of a bargaining

order remedy.

In addition to the effectiveness of the notice as it relates

to the scope of the charged unfair labor practices, the

timeliness of its transmission is disputable, at least within

the context of successorship analysis. In Musikiwamba v.

ESSI, Inc., 760 F.2d 740, 752 (7th Cir. 1985), the court

rejected as untimely the notice given to a successor con-

sisting of a ‘““Motion to Add Additional Defendants” in a

pending discrimination action which was filed on the day

scheduled for closing the sale of the defendant employer.

The basis of the notice requirement is that the suc-

cessor has some time to negotiate a change in the

purchase agreement to reflect the potential liability

of a lawsuit; a pleading filed at the Eleventh Hour

naming the successor as defendant clearly gives a

successor little if no time to reconsider a sale that

for all intents and purposes has been completed... .

[A] successor who has exercised due diligence and

failed to uncover evidence of the plaintiff's lawsuit

endorsed this approach. NLRB v. Local Union No. 46, Metallic Lathers,

727 F.2d 234 (2d Cir. 1984). Moreover, this basis for attributing notice

to General Wood was not urged by the General Counsel in any of the

proceedings below.

will not be found to have notice when a pleading

listing it as a defendant is filed the very day the

transaction is to take place.

Clearly, the communication dated June 28, 1984, even

if it had been received on that date, would not be effective

to apprise General Wood of the scope or seriousness of

the charged unfair labor practices in time for General Wood

to extract additional concessions from Bowlby. Thus, the

mere fact that this document may have been transmitted

hours before the consummation of the asset purchase

agreement should not be the determinative factor in af-

fixing successor liability.

In addition to the mailgram, two separate agency the-

ories were advanced to impute notice of Bowlby’s unfair

labor practices to General Wood in advance of the sale.

The ALJ inferred notice from General Wood’s hiring of

supervisor Thomas Greene after its purchase of the Bowlby

facility, theorizing that Greene’s Leiden of the various

unfair labor practices, acquired while a Bowlby employee,

was imputed to General Wood upon commencement of his

néw employment. The court of appeals, perhaps recogniz-

ing the weakness of this premise, sought to establish this

indispensable element by examining the actions of “Stanley

Winborne”’ as reflected in the administrative record. From

its independent examination of the record, the court of

appeals concluded that inferences drawn from the circum-

stances surrounding the purchase of the Bowlby facility

pointed (at least circumstantially) to Winborne’s awareness

of Bowlby’s commission of unfair labor practices. Neither

one of these notions of agency withstand conscientious

scrutiny.

This is not a case of notice predicated upon the same

person’s control of both corporations, NLRB v. Hot Bagels

and Donuts, Inc., 622 F.2d 1118, 1116 (2d Cir. 1980), or

where the principal in the predecessor corporation is em-

ployed in a similar capacity with the successor, as was the

case in Golden State. 414 U.S. at 172-74; see also Evans

Services, Inc. v. NLRB, 810 F.2d 1089, 1094 (11th Cir.

1987). Rather, the ALJ specifically “imputed to General

Wood”’ notice of the unfair labor practices based upon the

knowledge of Bowlby’s Production Manager Thomas

Greene, who was later hired by General Wood. (App. 77).

This holding is contrary to both established agency law,

see Restatement (Second) of Agency § 9(3) (1958), and ap-

pellate precedent. Confronting a like theory of imputed

notice, the court in NLRB v. Local Union No. 46, Metallic

Lathers, 727 F.2d 234 (2d Cir. 1984), stated the following:

Before the Board could impose responsibility on

Carpenters to remedy International’s unfair labor

practice, it had to find that Carpenters had knowledge

of the charges pending against International at the

time the two unions affiliated. Golden State Bottling

Co. v. NLRB, 414 U.S. 168, 185, 94 S.Ct. 414, 425,

88 L.Ed.2d 388 (1978). Carpenters denied that it had

actual knowledge, and no witness testified to the con-

trary. Our role in determining whether the Board mis-

applied the common law agency principles of imputed

knowledge is not limited.... We do not exceed our

authority, therefore, in holding, as we do, that the

ALJ erred in imputing the knowledge of Internation-

al’s President... ‘‘at all times material herein’ to

Carpenters, by whom he became employed following

affiliation. This holding simply does not square with

long-established common law principles of agency.

727 F.2d at 237; see also Marlene Industries Corp. v.

NLRB, 712 F.2d 1011, 1021 (6th Cir. 1988).

Notice of the commission of the unfair labor practices

cannot therefore be imputed to General Wood in the man-

ner adopted by the ALJ.

The independent examination of the administrative re-

cord conducted by the court of appeals produced a similarly

faulty result. In examining the actions of “Stanley Win-

borne”, a review which betrays no appreciation of the

participation of two “Stanley Winbornes” in the purchase

of the Bowlby facility, (App. 20), the reviewing court built

inference upon inference to conclude that ‘‘Winborne” had

(or should have had) the requisite knowledge of Bowlby’s

commission of specific unfair labor practices.

It is clear... that he knew of the Union’s ongoing

campaign for recognition at the plant and that a new

representative election was to be held on July 3. He

almost certainly must have then known that Bowlby’s

unit packing had caused the April 4 election to have

been rescheduled. He further must have known then

that Bowlby had issued the warnings and suspensions

to its employees that were later held by the Board

to have been violations of the Act....

(App. 22) (emphasis supplied).

Extrapolating further from the actions of ‘““Winborne’”’, the

court of appeals essentially made a credibility determina-

tion respecting an individual who did not testify at the

administrative hearing.

Circumstantially, it overtaxes the most naive cre-

dulity to believe that Winbourne [sic], with the ex-

perience gained by him from his employment with and

acting as a consultant for Bowlby, and having the

business sophistication that he manifested by his suc-

cessfully negotiating for General Wood to purchase

the plant from Bowlby for over three million dollars

and arranging for General Wood to hire almost all of

Bowlby’s supervisory force, and in doing so neces-

sarily speaking at length with Bowlby’s owners and

its supervisors, did not learn of Bowlby’s having com-

mitted the unfair labor practices it had committed

during the Union’s campaign at the plant, and if he

did not learn of them in so doing, that being the

prudent businessman that he was, he did not inves-

tigate and learn of them before causing General Wood

to purchase the plant on June 29, nine days after he

spoke to Bowlby’s employees. It is thus understand-

able that Stanley Winbourne [sic] did not testify at

the hearing held by the ALJ.

(App. 22).

Obviously, an appellate court is not the appropriate body

to make credibility determinations. NLRB v. Walton Mfg.

Co., 369 U.S. 404, 408 (1962). Neither is it appropriate

for a court of appeals to invoke the adverse inference rule

where the trier of fact has not done so. NLRB v. Link-

Belt Co., 311 U.S. 584 (1941).

Moreover, Winborne’s awareness of the ongoing organ-

izing campaign does not support the sweeping inferences

made by the court of appeals. Knowledge of union activity

does not constitute ‘‘notice” for purposes of successorship

analysis. Compare, W & W Steel Co. v. NLRB, 599 F.2d

934, 940 (10th Cir. 1979Xevidence that alleged successor,

prior to purchase, “‘did ‘hear’ about a union being involved

at the plant” was insufficient to constitute notice); with

NLRB v. Fabsteel Co. of Louisiana, 587 F.2d 689, 691 (5th

Cir. 1979) (knowledge of outstanding order against seller

supported successorship finding).

Before the Fourth Circuit, General Wood presented a

number of arguments against the imposition of derivative

successor liability, which arguments were disregarded by

the court. As the court noted in a protracted single-sen-

tence paragraph, (App. 35-36), General Wood challenged

the Board’s successorship conclusions by raising several

salient points: (1) ‘even if a majority of Bowlby’s employ-

ees signed petitions... the Board failed specifically to

identify which of Bowlby’s former employees in the unit

were hired by General Wood or what percentage of union

support existed among the [General Wood] employees’;

(2) ‘all reported successorship decisions rest upon either

the certification of a union... or upon the predecessor’s

having voluntarily recognized the union’’; and (8) there is

no carryover of any presumption of majority status in the

absence of certification or voluntary recognition, so that

if a new employer does not hire a majority of those em-

ployees who have demonstrated a pro-union attitude, “then

it violated Board policy to issue a bargaining order in the

non-majority setting in the successor’s newly-constituted

unit.”’ (App. 35-36).

Having thus fairly paraphrased the thrust of General

Wood’s objections to the Board’s successorship findings,

the court endeavored to salvage the ultimate result reached

by the Board without reference to the numerous argu-

ments presented. After contorting the Board’s findings

regarding the majority status issue, (App. 36-39), see Sec-

tion I(C) above, the court inexplicably ignores the remain-

ing components of General Wood's argument,

reviewable discretion of the Board. Such a perspective

simply does not comport with established principles of ad-

ministrative law. Allied Chemical & Alkali Workers v.

Pittsburgh Plate Glass Co., 404 U.S. 157 (1971).

The unsubstantiated ex post facto rationalizations pro-

vided by the court of appeals do not suffice to provide

the essential element of notice. Absent more concrete evi-

dence that General Wood had knowledge of the pending

unfair labor practice charges, the enforcement of the bar-

gaining order must fail.

CONCLUSION

The result reached by the lower court in this case rep-

resents an unprecedented extension of the decisions

reached by this Court in both Gissel and Golden State. The

need to resolve longstanding variances among the circuits

respecting the review of Gissel bargaining orders, as well

as the necessity for definition of the parameters of suc-

cessor liability require the intercession of this Court. The

petition for writ of certiorari should be granted.

Respectfully submitted,

CHARLES A. EDWARDS

Post Office Box 1951

Raleigh, NC 27602

Attorney for Petitioner

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-1331

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus

GENERAL WOOD PRESERVING COMPANY;

BURKE-PARSONS BOWLBY,

Respondents.

On Application for Enforcement of an Order of

the National Labor Relations Board.

Argued: March 8, 1989 Decided: June 18, 1990

Before MURNAGHAN, Circuit Judge, BUTZNER, Senior

Circuit Judge, and STAKER, United States District Judge

for the Sout\,<1: District of West Virginia, sitting by des-

ignation.

Enforcement granted by published opinion. Judge Staker

wrote the opinion, in which Judge Murnaghan and Senior

Judge Butzner joined.

ARGUED: Robert Francis Mace, NATIONAL LABOR

RELATIONS BOARD, Washington, D.C., for Petitioner.

Charles A. Edwards, GRAHAM & JAMES, Raleigh, North

Carolina, for Respondents. ON BRIEF: Rosemary M. Col-

lyer, General Counsel, Robert E. Allen, Associate General

Counsel, Aileen A. Armstrong, Deputy Associate General

Counsel, Collis Suzanne Stocking, Supervisory Attorney,

NATIONAL LABOR RELATIONS BOARD, Washington,

D.C., for Petitioner.

STAKER, District Judge:

This case was instituted here pursuant to section 10(e)

of the National Labor Relations Act (Act), 29 U.S.C.A.

§ 160(e) (West 1973),1 by the National Labor Relations

Board (Board) seeking enforcement of a Gissel bargaining

order? entered by the Board against Burke-Parsons Bowlby

(Bowlby) and General Wood Preservative Company (Gen-

eral Wood), respondents herein. Enforcement of the

Board’s order against each of them is granted.?

Hearing was held by an Administrative Law Judge (ALJ)

upon unfair labor practices charges filed pursuant to the

Act against Bowlby and General Wood, respectively, in

consolidated cases 11-CA-11282, 11-CA-11376 and 11-CA-

11487. Both Bowlby and General Wood filed answers de-

nying the charges against them in those cases. General

1 Section 10(e) of the Act empowers the Board “‘to petition any court

of appeals of the United States ... wherein the unfair labor practice

in question occurred ... for the enforcement of’’ the Board’s orders

and provides that “[ujpon the filing of such petition, the court shall

. have oe of the proceeding and of the question determined

therein .

: So-called from NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct.

1918, 23 L.Ed.2d 547 (1969), wherein the Court approved the Board’s

issuance of such an order.

* The Board entered an order against General Wood on May 12, 1988,

but failed to include Bowlby therein. On September 30, 1988, the Board

entered another order against both Bowlby and General Wood which,

except in particulars not material here, contained the substance of its

May 12, 1988, order. Those two orders are herein referred to as the

“‘Board’s order.”

Wood did, but Bowlby did not, appear at the hearing held

before the ALJ therein, nor did anyone participate at that

hearing on behalf of Bowlby. The ALJ rendered his de-

cision therein on June 20, 1986, which included an order

recommended by him for adoption and entry by the Board.

The Board affirmed the ALJ’s findings and conclusions

ry in that decision and adopted the recommended

order.‘

The Board’s order required Bowlby and General Wood,

as Bowlby’s successor at a wood-treatment plant at Le-

land, North Carolina (plant), which Bowlby had owned and

operated for some time prior to Bowlby’s sale thereof to

General Wood on June 29, 1984,5 to recognize and bargain

collectively with the International Woodworkers of Amer-

ica, AFL-CIO (the Union), as the collective bargaining rep-

resentative of a unit consisting of all production and

maintenance employees at the plant, a majority of whom,

the ALJ found, had signed petitions selecting the Union

as such representative; to offer to hire seven employees

hereinafter named who had been employed by Bowlby at

the time of that sale, whom the ALJ found General Wood

had refused to hire, in violation of section 8(aX1) and (3)

of the Act, because of their union activities; and to make

those employees whole by paying them back pay with in-

terest and restoring to them the seniority and other em-

ployment rights and benefits to which they would have

been entitled but for General Wood’s discriminatorily hav-

ing refused to hire them for that reason.

‘In so doing, the Board effected minor modifications to that decision

and recommended order, none of which are material to the issues here.

‘The ALJ had found that General Wood had attained that succes-

sorship status at least by the end of July 1984, when General Wood

had hired employees in the pre-existing classifications and had employed

a complement of 44 employees in the unit that had been established

at Bowlby prior to General Wood’s purchase of the plant.

The ALJ’s findings and conclusions, as affirmed by the

Board, are respectively sometimes herein said to be those

of the ALJ and at others those of the Board.

Proceedings in This Court

On September 7, 1988, the Board filed its initial appli-

cation here seeking enforcement of its order against

respondent General Wood only, and on October 7, 1989,

filed an amendment to that application wherein both

Bowlby and General Wood were joined as respondents and

enforcement of the Board’s order was sought against both

of them. General Wood timely responded thereto.

Through oversight the Clerk of this Court did not serve

upon Bowlby notice of the filing of the amended application

nor disclose to the Court that it had been filed.

In the mistaken belief that General Wood was the only

party respondent herein, following the hearing of argu-

ments in March 1989 the Court prepared its decision, dated

February 16, 1990, enforcing the Board’s order as to Gen-

eral Wood only, whereupon the Board informed the Court

that Bowlby had also been joined as a respondent and

moved that the decision be corrected such that the Board’s

order also be enforced against Bowlby. General Wood did

not object to that motion.

Bowlby then appeared generally herein by filing its mo-

tion for permission to plead or to answer the Board’s

motion, in substance asserting as ground therefor that

Bowlby and its counsel, Mr. Holroyd, assumed that Bowl-

by’s interests in this action were being protected hy Mr.

Edwards, General Wood’s counsel, for which reason

Bowlby did not theretofore appear herein. In response to

Bowlby’s motion, General Wood asserted that Bowlby in-

correctly so assumed, and attached to that response was

a copy of a letter from Mr. Holroyd to Mr. Edwards, dated

October 12, 1988, stating ““You [Mr. Edwards] are correct

in your assumption that ... [Bowlby] does not want to

participate any further in this case.”

On March 20, 1990, this Court entered an order di-

recting the clerk thereof to serve upon Bowlby the

amended application filed against Bowlby herein by the

Board and granted Bowlby leave within thirty days to file

an answer to that amended application and to file an an-

swer to the Board’s motion to correct this Court’s Feb-

ruary 16, 1990, decision. Bowlby did not file an answer

to either that amended application or to the Board’s mo-

tion to correct that decision.

On April 12, 1990, this Court entered an order staying

the Court’s mandate then in effect herein until further

order of the Court.

By letter from the clerk of this Court to Mr. Holroyd,

Bowlby’s counsel, dated March 29, 1990, Bowlby was re-

quested to file a brief herein, in response to which Mr.

Holroyd informed the clerk by letter of April 5, 1990, that

“{U]pon review of the record in this matter and consul-

tation with ... [Bowlby] we do not desire to file a brief

as provide [sic] in your March 29, 1990 letter.”

Bowlby having declined to file herein an answer, or a

brief as required by Rule 15.1, Federal Rules of Appellate

Procedure, or otherwise to respond to either the Board’s

amended application or its motion to correct the February

16, 1990, decision, an order was entered by the Court on

April 30, 1990, enforcing the Board’s order against Bowlby

as well as General Wood.

Thus, it is only the contentions of the Board and General

Wood, respectively, which are dealt with in Part III hereof,

that raise the issues to be decided by the Court.

Bowlby’s Role

Since the bargaining order sought to be enforced by the

Board against General Wood is based upon the ALJ’s con-

clusion that General Wood was Bowlby’s successor, before

addressing the issues between the Board and General Wood

it is necessary to discuss the conclusions reached by the

ALJ as to Bowlby in order fully to understand and eval-

uate some of the evidence upon which the ALJ based his

findings and conclusions as to General Wood.

Except as indicated to the contrary, those reached as

to Bowlby were based upon undisputed fact and evidence

and documentary evidence, and in substance are as follows.

Majority Selection of the Union

On February 12, 1984, Bowlby employed sixty-four pro-

duction and maintenance workers at the plant.* Early in

February 1984 some of them engaged in a walkout and

communicated with the Industrial Union Department (IUD)

of the AFL-CIO concerning union representation of them

at the plant.

Michael Black of the IUD met with some of them and

informed them that he would need to determine which

affiliate union he would recommend most appropriately to

represent them. At that meeting 26, and thereafter others,

*The ALJ calculated that when the 21 employees who were not

production and maintenance workers at the plant were deducted from

the total of all of Bowlby’s employees there, numbering 86, there re-

mained 64, and not 65, production and maintenance employees in the

unit. The total number of such unit employees was more likely 62,

since 50 of them purportedly signed the petitions opting for Union

representation and 12 of them did not. Whether the unit numbered 62,

64, or 65 is not critical to the majority issue, because the signatures

of at least 41 of them on the petitions were authenticated, a clear

majority.

of the unit employees at Bowlby signed single-purpose

petitions authorizing the AFL-CIO or its appropriate af-

filiate to represent them in collective bargaining with

Bowlby. At a second meeting with Black, the employees

in attendance thereat by voice vote selected the Union as

the AFL-CIO affiliate to do so. The ALJ found 42 of the

signatures on those petitions to be authentic, that those

42 signatures constituted those of a majority of the 64

production and maintenance employees comprising the ap-

propriate unit at the plant in February, and that the lack

of designation on those petitions, at the time they were

signed, of the Union as the appropriate AFL-CIO affiliate

to represent them was not a legal impediment to the at-

tainment of that majority status.’

Bowlby’s Unfair Labor Practices

On February 9, the Union formally notified Bowlby by

mailgram that the Union represented a majority of Bowl-

by’s production and maintenance employees at the plant

and requested that Bowlby recognize the Union as their

collective bargaining representative. Bowlby refused to do

so, the Union petitioned the Board for a representative

election at which those employees could vote as to whether

the Union would do so, and in mid-March, the Board sched-

uled an election to be had on April 6 pursuant to a stip-

ulation of election executed by Bowlby and the Union. That

stipulation defined the appropriate unit to consist of the

production and maintenance employees at Bowlby, exclud-

ing employees performing all other work at the plant.

7 Such was not an impediment in the absence of a showing that the

employees who signed the petitions did not intend to authorize the

Union, as an AFL-CIO affiliate, to represent them. See NLRB v. Cam

Industries, Inc., 666 F.2d 411 (9th Cir. 1982). Here there was no

of the petitions did not intend to

act. As the ALJ pointed out, there was no

evidence that any of the signers of those petitions ever attempted to

revoke their signatures on any of them.

The ALJ found and concluded that during February,

March, and April, through its supervisors, production man-

ager, and president, Bowlby committed the following acts,

each of which constituted a violation of section &aX1) of

the Act:* Supervisor Gary Wood stated to employee Larry

Brown that, if the employees selected the Union, they

would lose their paid holidays and would have to start

from scratch (an unlawful threat of loss of benefits); Plant

Manager Carl Williams stated to employees Larry Brown,

Michael Robinson and others that in that event they and

he might as well look for another job (a threat of the

plant's closure and the loss of their jobs); Supervisor Jim-

mie Smith stated to employees Warren Bryant and Alex-

ander Hall that in that event everyone should plant a

garden because they were going to be on the soup line

and the plant would be closed (unlawful threats of plant

closure and the loss of their jobs); Supervisor Smith stated

to employee Warren Bryant that in that event they would

lose benefits including “boot money” (an unlawful threat

of loss of benefits); Supervisor Smith stated to employee

Oliver Munn that in that event the employees were going

to wind up in the soup line (an unlawful threat of the loss

of their jobs); Supervisor Percy Burns stated to employee

John Ganey that if the employees kept going the way they

were with the Union, the plant would shut down (an un-

lawful threat of plant closure); Supervisor Bill Caldwell

stated to employee Greg Burton that when you sit down

to bargain, you lose all benefits (an unlawful threat of loss

of benefits if the employees selected the Union); Bowlby’s

president, Richard Bowlby, stated at a meeting attended

* Section 8(aX1) makes it an unfair labor practice for an employer

“to interfere with, restrain, or coerce employees in the exercise of the

rights guaranteed in section 157 of this title.” 29 U.S.C.A. § 158(a\(1)

(West 1973). Section 157 provides in part that “employees shal] have

Oe ES ee Se eee

and to engage in other concerted activities for the

collective bargaining or other mutual aid or protection . . .." 29 ray

§ 157 (West 1973).

by Bowlby’s Plant Manager Car] Williams and employees

Michael Robinson and Paul Bowens that if the Union came

in, he would ship poles out and get them peeled cheaper

(an unlawful threat of subcontracting work); and Super-

visor Smith interrogated employee George Jenkins con-

cerning what he thought of the Union in an environment

that was not free of unfair labor practices and hence was

a part of an overall campaign of unlawful interrogation

and coercion.

On March 30, Bowlby’s president, Richard Bowlby, wrote

a letter to the employees in which he stated:

There are no problems that exist in this plant

that we cannot work out among ourselves with-

out the high risk the union brings. This much I

promise you—we. will work out our problems—we

will do this with or without the union. We can

do it easier and better without the union....

[Think carefully about this union and what it can

cost you. You know what you now have. Don’t

vote yourself into a sea of trouble.

The ALJ concluded that the promise in that letter to

“work out our problems” was an unlawful promise of ben-

efits to induce the employees to reject union representation

and a violation of section 8(aX1) of the Act, and that the

reference therein to the “high risk” the union would bring

and the statement therein that the employees should not

“vote themselves into a sea of trouble’ were unlawful,

ed threats of reprisal if the employees chose union

representation and constituted a violation of section 8(aX1)

of the Act.

Prior to the representation election scheduled on April

6, Bowlby brought to the plant 25 of its employees from

other states, placed their names on its list of employees

10a

to vote in that April 6 election, kept them segregated from

other employees there, housed them in a motel at Bowlby’s

expense, fed them from specially catered trucks, i

not require them to wear shirts or hard hats as

Union,

was blocked and all but four of those

ployees left on April 7, and Bowlby’

veased to show them as having worked any hours.

The ALJ found and concluded that in

engaged in “unit packing” in an attempt to capture the

election and thereby violated section 8(aX1) of the Act.

The ALJ found and concluded that, from late February

into late June, Bowlby unlawfully, and in violation of the

Act as stated below, issued warnings and suspension

Warren Bryant

Bryant engaged in the walkout, signed a union petition,

wore a “Vote Yes” pin for a time and urged his fellow

employees to support the Union.

lla

He was absent from work on May 21 because of car

trouble and telephoned his foreman, Jimmie Smith, to in-

form him of that fact. Smith told him to hurry to work.

He was unable to fix his car that day and reported to

work on the following day, when Production Manager

Greene called him to his office and issued him a written

warning for not reporting to work the day before.

The ALJ found that warnings had theretofore been is-

sued to employees for failing to report to work only when

they had failed to “‘call in,” and that Bowlby had violated

re ence of that

warning to Bryant.

Warren Jacobs

_ Jacobs engaged in the walkout, attended union meet-

On May 21, he received a written warning from Pro-

duction Manager Greene for being late for work notwith-

his presentation of a doctor’s excuse in

a tardy employee who had presented a doctor’s excuse.

The ALJ concluded that Bowlby had violated section

8(aX1) and (8) of the Act by issuing the warning to Jacobs.

George Jenkins

Jenkins attended a Union meeting, signed a petition,

discussed his support of the Union with other employees

in Be poets Bh to bo on enti labor practice

for an employer “to encourage or discourage membership in any labor

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

ployment or any term or condition of employment ....” 29 U.S.C.

§ 158(aX3) (West 1973).

12a

and told his supervisor that he hoped the employees got

the Union in so that it would help them to receive better

benefits.

On February 27, he stopped operating a pole machine

because of heavy rain and gave that as his reason for

having done so to his supervisor, Kenny Smith, who told

him he could wait a few minutes until the rain slackened

and then restart the machine. The next day Production

Manager Greene issued to him a written warning for being

“unwilling to work due to weather conditions.’’™

The ALJ concluded that Bowlby had violated section

8(aX1) of the Act by issuing a warning to Jenkins.”

Greg Burton

From the outset, Burton had been a leader in the move

to unionize the plant’s production and maintenance em-

ployees, actively participated as their designated spokes-

man for a time, engaged in the walkout, contacted the

AFL-CIO’s IUD on their behalf, met with IUD coordinator

Black, signed a union petition, wore T-shirts reading ‘100

percent Union,” spoke at meetings held by Production

Manager Greene and Plant Manager Carl Williams and

met with Bowlby’s president concerning employees’ com-

plaints.

On June 18, Greene gave Burton a written warning that

had been dated June 12, which noted thereon days on

which he had been late for, or absent from, work, in luding

an instance on June 11 when Burton had left early. Im-

4 Greene testified that other employees had not ceased work because

of the rain, but later testified that he was not certain as to what

happened because he was not personally present at the time.

* The ALJ concluded that Bowlby had thereby also violated section

8(aX3) of the Act; however, the Board’s order struck that conclusion

from the decision, because a violation of section &(aX3) as to Jenkins

in respect to this warning has not been alleged.

13a

mediately after giving him that warning on June 13,

Greene issued to him a three-day suspension from work

because of his failure to report for work on June 12 and

because of the written warning given him on June 13."

The ALJ concluded that after the advent of the Union’s

campaign, Bowlby suddenly commenced to enforce rules

concerning tardiness, absenteeism and work performance

that had not theretofore been enforced, that Bowlby was

discriminatorily motivated to do so as its response to the

Union’s campaign and that Bowlby thereby violated section

8(aX1) and (8) of the Act.

III

General Wood’s Role

The Board contends that the findings and conclusions

reached by the ALJ in his decision, as affirmed by the

Board, were supported by substantial evidence on the re-

cord as a whole and that the Board acted properly within

its broad remedial discretion in issuing its bargaining order

against General Wood.

In substance, General Wood contends that there was

not substantial evidence on the record to support, and that

the ALJ erred in finding: (a) that the signatures affixed

to petitions selecting the Union to be the collective bar-

gaining representative of the employees in the unit at

Bowlby were the authentic signatures of a majority of

those employees; (b) that General Wood had notice of

* Burton testified that his supervisor, Tom Sweeney, as well as

Greene, granted him permission to leave work early on June 11. Greene

testified that he did not remember discussing with Burton his leaving

early on June 7 and 11, and that Burton had telephoned on one occasion

when he was late for work.

* General Wood asserts that some of those signatures were not au-

thenticated by the ALJ by competent evidence; otherwise, General Wood

does not question any of the findings and conclusions reached by the

ALJ as to Bowlby.

l4a

unfair labor practices committed by Bowlby prior to Gen-

eral Wood’s purchase of the plant: (c) that Generai Wood’s

refusal to hire the seven former employees of Bowlby was

in any way related to those employees’ union activities;

(d) that General Wood is Bowlby’s successor; and (e) that

the end of July 1984 was the appropriate “substantial and

representative complement” date in respect to General

Wood’s work force in the unit at the plant. And General

Wood asserts that even if substantial evidence on the re-

cord does support the issuance of a bargaining order

against Bowlby, the evidence does not support the issuance

of the bargaining order against General Wood, hence the

one against General Wood was improperly issued.

Section 10(e) of the Act provides in part that “[tjhe

findings of the Board with respect to questions of fact if

supported by substantial evidence on the record as a whole

shall be conclusive.” Accordingly, if the ALJ’s findings of

fact, as affirmed by the Board, with which General Wood

takes issue, “have substantial support in the record as a

whole, our inquiry ends ... even though we might have

reached a different result had we heard the evidence in

the first instance.’”” NLRB v. Daniel Constr. Co., 731 F.2d

191, 193 (4th Cir. 1984); citing Universal Camera Corp.

v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

Substantial evidence has been held to mean “such relevant

evidence as a reasonable mind might accept as adequate

to support a conclusion.” NLRB v. Aquabrom, Div. of Great

Lakes Chemical, 855 F.2d 1174, 1178 (6th Cir. 1988).

The Majority (Authentication) Issue

General Wood’s claim that there is not substantial com-

petent evidence on the record to support the Board’s find-

ing that the signatures of a majority of the employees in

the unit, subscribed to the petitions by which those em-

ployees selected the Union to be their bargaining repre-

sentative, were the authentic signatures of those employees

is demonstrably without merit.

15a

Seven separate, single-page petitions upon which appear

50 signatures® purporting to be those of employees in the

unit were admitted into evidence. The only evidence bear-

ing upon their authenticity was presented by General

Counsel, none of which was rebutted. The ALJ held 42

of them to be authentic.

The evidence establishes that 17 of those 50 signatures

were authenticated by the testimony of the 17 employees

who identified them to be their own and that 6 others of

them were authenticated by witnesses who testified that

they observed 6 named employees affix them thereto as

their own. The authenticity of still 5 others of them is

established by comparing them with what the undisputed

evidence established to be the authentic specimens, on

other documents of evidence, of the signatures of those 5

employees, from which it is clear that their signatures on

the petitions are in fact their authentic signatures. Thus,

there is substantial and competent evidence in the record

to establish the authenticity of 28 of those 42 signatures

the ALJ held to be authentic.

Section 10(b) of the Act provides that proceedings con-

ducted by the Board or its agent “shall, so far as prac-

ticable, be conducted in accordance with the rules of

evidence applicable in the district courts of the United

States ....”” Rule 101, Fed. R. Evid., provides “[tJhese

rules govern proceedings in the courts of the United States

.... Hence, proceedings conducted by the Board or its

agent, such as those that were conducted by the ALJ, are

to be conducted in accordance with the Federal Rules of |

Evidence. Rule 901(a) and (bX1) and (8), Fed. R. Evid.,

permits signatures to be authenticated by the methods by

which the 28 signatures were demonstrated to have been

6 Despite literary rules dictating the contrary, in the interest of read-

ability numbers of employees and signatures are expressed in figures

herein.

16a

authenticated.’* See Colson Corp. v. NLRB, 347 F.2d 128,

134 (8th Cir. 1965), cert. denied, 382 U.S. 904, 86 S.Ct.

240, 15 L.Ed.2d 157 (1965) (a signature may be authen-

ticated by the testimony of a witness to the execution

thereof by its subscriber as well as by a comparison of

the signature with a known specimen of the handwriting

of the person claimed to have subscribed it).

Two of the seven petitions contained a total of 26 sig-

natures. Of those 26 signatures, 11 are included among

the 17 signatures on all seven of the petitions that were ~

authenticated by the testimony of the employees who af-

fixed them thereto, as set forth above, which leaves the

remaining 15 of them to depend for their authentication

solely: upon the testimony of IUD coordinator Michael

Black.

Black testified that he met in a union hall on February

7, 1984, with 26 of Bowlby’s employees; that he sat at a

head table there with those employees facing him; that he

first passed among them an attendance sheet; that he then

displayed to them a blank form of the petitions and read

* Rule 901(a) and (bX1) and (3), Fed. R. Evid., provides:

(a) The requirement of authentication or identification as

a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question

is what its proponent claims.

(b) By way of illustration only, and not by way of lim-

itation, the following are examples of authentication or iden-

tification conforming with the requirements of this rule:

(1) Testimony that a matter is what it is claimed

to be.

(3) Comparison by the trier of fact or by expert

witnesses with specimens which have been authenti-

cated.

—_—

17a

to them the matter appearing at the top thereof!’ and

explained to them that a majority of the employees would

be required to sign such a petition authorizing the union

to represent them at Bowlby before the Union could do

so; and that if he could recall correctly, most if not all of

those 26 employees signed those two petitions at the table

at which he sat, but that there may have been one or two

of them who signed their names thereto away from that

table,* and that after the petitions were signed, they were

handed back to him and retained in his custody.

General Wood asserts, in substance,’ that the Board

has the burden of establishing the authenticity of the sig-

1” That matter at the top of the petitions reads:

THIS WILL AUTHORIZE THE AFL-CIO AND/OR ITS APPRO-

PRIATE AFFILIATE TO REPRESENT ME IN COLLECTIVE

BARGAINING WITH MY EMPLOYER.

This will also authorize said union to use my name for the

purpose of organizing Burke-Parsons-Bowlby in Wilmington,

N.C.

This may include sending my name to the company with a

copy of (sic) the National Labor Relations Board as well as

in the signing of union leaflets.

Appearing on the petitions immediately below the above-quoted mat-

ter are five columns respectively headed ‘‘Name,”’ “Address,” ‘‘Date,”

“Tel No.,” and “Job.”

* Devant Graham’s signature appears on the attendance sheet but

not on either of the two petitions. Stanford Graham’s signature appears

on one of the two petitions but not on the attendance sheet. Otherwise,

all 26 signatures appearing on each of the attendance sheets and on

the two petitions correspond.

The court gathers such to be the substance of General Wood's

assertion in respect to the authentication issue from a footnote in its

brief. There it asserts “[tJhe ALJ’s decision states that 42 of the 48

(sic) signatures on GC 101-107 (those being the exhibit numbers of the

seven petitions) were authenticated at the hearing. This is not true.

Some, but far from all, of the signatures on the original petitions [App.

229-235] (the original petitions being the two) were authenticated; there

18a

natures of a majority of the employees in the unit on the

petitions, with which the Court agrees, and further asserts

that Black’s testimony is not competent evidence to es-

tablish the authenticity of any of the 15 signatures which

depend for their authenticity solely upon his testimony,

wherefore the Union did not in fact attain majority status

and the ALJ and the Board erred in holding that it had

done so, citing Maximum Precision Products, Inc., 236

N.L.R.B. 1417, 1424 (1978), and Stop N’Go, Inc., 279

N.L.R.B. No. 52 (1986).

The facts here are distinguishable in critical particulars

from those in Maximum and Stop N’Go. In each of them

the employees signed the cards out of the presence of the

witnesses by whose testimony the employee’s signatures

were sought to be authenticated and then delivered those

cards to other persons who delivered them to those wit-

nesses at a later time, and those witnesses did not observe

the signers of the cards affix their signatures thereto nor

did those signers themselves deliver those cards to those

witnesses with their signatures affixed thereto. Here all

26 employees whose signatures appear on the two petitions

subscribed their names thereto in Black’s presence, except

that one or two of them may have done so away from

the table at which he sat and at a point elsewhere in the

same room.” Black’s testimony thus established that he

personally observed at least 24 of those 26 employees affix

their signatures to those two petitions. Such being true—

and there was no evidence to the contrary—Black person-

ally observed 13 of those 15 employees affix their signa-

is no explanation of the failure to authenticate the remainder.” General

Wood’s brief at 16, n.12 (parenthetical matter interpolated).

» Significantly, of the 26 signatures on those two petitions, 25 of

them hbeve the date “‘2-7-84” entered under the “Date” column on the

same lines on which those 25 signatures appear. No date is entered in

relation to one of those 26 signatures. The entry of that same date in

relation to those 25 signatures is a circumstance that tends to corro-

borate Bilack’s testimony.

19a

tures to the two petitions. See NLRB v. Howell Chevrolet

Co., 204 F.2d 79, 85-86, enforcing 95 N.L.R.B. 410, aff'd

on other grounds, 346 U.S. 482, 74 S.Ct. 214, 98 L.Ed.

215 (1953) (assertion of lack of authenticity of Malstom’s

signature on card held to be without basis for, no matter

who wrote his name thereon, evidence showed he clearly

adopted the signature as his own by accepting the card

from, and agreeing to return it to, Leonard and thereafter

returning it to Leonard with the signature appearing

thereon); Amalgamated Clothing Workers of America v.

NLEB, 419 F.2d 1207, 1209 (D.C. Cir. 1969), cert. denied

sub nom. McEwen Mfg. Co. v. NLRB, 397 U.S. 988, 90

S.Ct. 1120, 25 L.Ed.2d 396 (1970) (‘‘[t]he other three cards

were properly authenticated by testimony that the signer

had returned the card to the union agent, thus adopting

as his own the signature thereon.”). Indeed, it is con-

vincingly arguable that Black’s testimony was competent

to authenticate all 26 of the signatures on the two petitions,

since each of the 26 employees whose name appears

thereon accepted one of the two petitions and then in the

same room himself handed or caused it to be handed back

to Black with a signature thereon.

At the very least, those 13 of the total of the 15 sig-

natures in issue were properly held to have been authen-

ticated by the ALJ and the Board pursuant to the

provisions of Rule 901(bX1), Fed. R. Evid.

Thus, there was substantial evidence on the record to

support, and the ALJ and the Board committed no error

by finding and holding, that at least 41 of the signatures

on the seven petitions were the authentic ones of em-

ployees in the unit, that those 41 authenticated signatures

constituted a majority of the signatures of the 64 or 65

employees in the unit and that the Union had thereby

attained majority status.”

2 Although General Wood has not, either before the ALJ, the Board,

20a

Issue of General Wood’s Knowledge of .

Bowlby’s Unfair Labor Practices

General Wood’s denial that it had adequate notice, prior

to its purchase of the plant from Bowlby, of the unfair

labor practices that Bowlby had committed and its asser-

tion that there is not substantial evidence on the record

to support the Board’s finding and holding that it did have

such notice prior to that purchase, are both without merit.

The evidence in the record bearing upon this issue is

undisputed.

When General Wood was incorporated by Stanley Win-

bourne to act as the entity that purchased the plant from

Bowlby, Winbourne became General Wood’s president.

As an official of Bowlby, Winbourne had overseen the

construction of the plant for Bowlby in 1973, and there-

after remained in Bowlby’s employ until about 1979, fol-.

lowing which he performed services for Bowlby in the

capacity of a consultant.

Prior to General Wood’s purchase of the plant on June

29, 1984, Winbourne was the only person through whom

General Wood acted, except that Steve Hutchinson inven-

toried Bowlby’s assets at the plant on behalf of General

Wood.

Winbourne did not testify at the hearing held by the

ALJ. The only direct evidence bearing upon the issue of

or this Court, claimed that the Union had never “timely” procured the

petitions which bore 37 of the employees

in the unit whose were hereinabove held to be authentic,

and those 37 employees then constituted a majority of the 64 or 65

employees in the unit.

2la

whether General Wood had notice of Bowlby’s unfair labor

practices is the Union’s mailgram to Winbourne and Steve

Hutchinson’s deniai of his knowledge thereof, all as dis-

cussed below. However, quite apart from that mailgram,

the evidence includes statements made by Winbourne and

other circumstantial evidence to support the Board’s find-

ing that General Wood had such notice before its purchase

of the plant on June 29, 1984.

From early March 1984 through June 29, Winbourne

carried out extensive negotiations for General Wood’s pur-

chase of the plant from Bowlby.

Steve Hutchinson, who did testify, first worked for

Bowlby in 1978, together with Winbourne during the con-

struction of the plant, and thereafter worked for Bowlby

off and on until the late spring or early summer of 1983,

when he left Bowlby’s employ to become employed by

Carolina Creosote.

At least a month before the plant’s purchase, Winbourne

approached Steve Hutchinson and Thomas Greene, who

was then Bowlby’s production manager at the plant, con-

cerning their accepting employment by General Wood there

if Winbourne was successful in causing General Wood to

purchase it, and he also approached many of Bowlby’s

supervisory staff about their doing so. After General

Wood’s purchase of the plant, Hutchinson became its op-

erations manager and Greene its production manager, and

James Walker, Kenny Smith, Gary Wood, Jerry Brown,

Jimmie Smith, Bill Caldwell, Ted Sweeney and Percy

Burns, all Bowlby supervisors, became its supervisors.

Greene and some of those supervisors had been personally

involved in Bowlby’s unfair labor practices.

On June 20, 1984, Winbourne addressed Bowlby’s em-

ployees at the plant and told them that General Wood had

the plant; that it would cease operations for

about two weeks and would reopen in early July, when

they would be hired by General Wood; and that in early

22a

July they should file applications for employment with Gen-

eral Wood. He also told them then that he was not in

favor of the Union, but that the decision was up to them,

and that they would start their employment with General

wood with “clean slates” and their benefits would not be

reduced.

It is clear from those remarks of Winbourne’s that he

knew of the Union’s ongoing campaign for recognition at

the plant and that a new representative election was to

be held on July 3. He almost certainly must then have

known that Bowlby’s unit packing had caused the April 4

election to have been rescheduled . He further must have

to heme ‘batnsiieenana aidiecdie de statement as

to the employees’ starting with General Wood with “clean

slates’”’ was meaningless and superfluous.

Circumstantially, it overtaxes the most naive credulity

to believe that Winbourne, with the experience gained by

him from his employment with and acting as a consultant

for Bowlby, and having the business sophistication that he

manifested by his successfully negotiating for General

23a

Moreover, on June 28, the eve of General Wood's pur-

chase of the plant on June 29, the Union sent to Win-

bourne a Western Union mailgram stating in part:

[TJhe ... [Union] continues to represent a ma-

jority of the bargaining unit employees at your

newly-acquired company or at your company

which you will acquire. ... [YJou are officially on

worked out easier and better without the union

and numerous other unfair labor practices. We

are quite aware of what you have y told

the employees. The ... [Union] s] that

your company recognize the Union as the collec-

tive bargaining representative and immediately

beste Gialikis ths fats dnl tanenda ett tie Union

and remedy all unfair labor practices committed

by Burke, Parsons Bowlby and already commit-

ted by you.

and

thereto did not adopt them as correct. The mailgram and

STPLM Teh ier

UG ATH a

ial wl HL

inet HH

HT it Hadid

Hay a akaay i

aie HAL |?

That May 15, 1984, contract, which is really an option agreement,

Hae f

25a

General Wood further argues, or at least strongly im-

; a successor r may not be charged with

notice its s unfair labor practices unless

those unfair labor practices have been alleged in a formal

charge or complaint filed against the predecessor of which

the successor has notice.

same argument was made, and rejected by the

in the recent case of NLRB v. St. Mary’s Foundry

Co., 860 F.2d 679 (6th Cir. 1988), wherein the court rea-

successor employer knows that his

predecessor is alleged to have engaged in unfair

labor practices, he undertakes the business with

notice of the risk that those allegations may ripen

findings of unfair labor practices which will

into

appears in the evidence as “GC [General Counsel’s Exhibit) 48.” In its

was “at its option,” subject to the fulfillment of the condition that all

representations made therein by Bowlby shall be true on the closing

26a

have to be remedied, and that he may be held

liable for the remedy, just as surely as if he

purchased with knowledge that formal charges

had been filed. In either situation, a prudent

buyer would provide for the risk in the course

of his negotiations with the seller. It is no more

certain that the filing of formal charges of unfair

labor practices will ripen into a finding of a vi-

olation of the Act, and an imposed remedy, than

that the conduct complained of will lead to the

filing of charges culminating in the same result.

The predecessor’s conduct is the same in either

situation; notice of the facts and appreciation of

the significance of the predecessor’s conduct are

the determining factors.

Of course, in this context, knowledge of the

allegations or conduct contemplates an appreci-

ation by the successor that the conduct could

amount to an unfair labor practice in violation of

the Act, just as knowledge of a filed charge pro-

vides knowledge of such a risk. To adopt a bright-

line test by holding that a successor employer is

liable only in the event charges have been filed,

would not serve the remedial purposes of the Act.

If pre-charge notice provides the same quality of

information, there is no reason not to bind the

successor.

Id. at 682. We likewise so hold. See also NLRB v. South

Harlan Coal, Inc., 844 F.2d 380 (6th Cir. 1988).

Prior to and at the time of its purchase of the plant

on June 29, 1984, General Wood had knowledge of the

acts and conduct of Bowlby that the Board later held

constituted unfair labor practices and then fully appreci-

ated that those acts and conduct could amount to unfair

labor practices in violation of the Act on Bowlby’s part

and that General Wood, as Bowlby’s successor, stood an

27a

excellent chance of being held liable for remedying them

and could have protected itself therefrom.

There was substantial evidence on the record to support

the Board’s finding and holding that prior to the purchase

of the plant, General Wood had notice of Bowlby’s having

committed the unfair labor practices the Board held Bowlby

to have committed, and the Board did not err in holding

that General Wood then had such notice thereof.

General Wood’s Refusal to

Hire Bowlby’s Seven Employees

The evidence is in dispute pertaining to this issue of

whether General Wood refused to hire the seven former

Bowlby employees because of their pro-union activities and

sentiments in violation of the Act, on the one hand, or

refused to do so for other, legitimate reasons, on the other.

It is not disputed that, after General Wood purchased

the plant, Steve Hutchinson was hired as its operations

manager, with supervision over the plant and all of its

employees, and Thomas Greene, formerly Bowlby’s pro-

duction manager there, was hired as General Wood’s pro-

duction manager there.

Hutchinson testified that on July 2, General Wood com-

menced taking applications for employment from appli-

cants desiring jobs as production and maintenance

employees (applications); that at that time he had no

knowledge of any union activities in which any of Bowlby’s

former employees had engaged, except that he knew from

watching television that there had been a ‘“‘walkout” at

the plant in February 1984; and that he never discussed

the union activity of any former Bowlby employee with

Greene or any other of Bowlby’s supervisors and was to-

tally. unaware of any union activity of any of Bowlby’s

former employees when the decision was made as to

whether any of them would, or would not, be hired by

General Wood. He further testified that he was responsible

28a

for hiring everyone below him who worked at General

Wood and that while he made the final hiring decisions,

he did not review every appliation because the applications

“were screened through Tom Greene.”

Thomas Greene testified that he recommended who

would be hired by General Wood. On cross-examination he

testified that he did not recommend everyone who was

hired and that he interviewed none of the seven former

Bowlby employees that General Wood did not hire. He

further testified that he recommended that Hutchinson not

hire Charles Brown and George Jenkins, two of those seven

employees, but made no recommendation as to the hiring

of Oliver Munn, Warren Bryant, Fred (Freddie Levi)

Brown, John Ganey and Greg Burton, the other five of

the seven of them.

Fred (Freddie Levi) Brown testified that Hutchinson told

him, and Greg Burton testified that Winbourne told him,

that Greene was doing General Wood’s hiring.

By their undisputed testimony, all of those seven former

Bowlby employees filed applications for employment with

General Wood during the period July 2 through July 6;

all of them were experienced workers at the plant, five

of them having commenced work there in 1979, one in

1982, and one in 1983; all of them had signed one of the

petitions for union representation during February 1984,

while employed by Bowlby; all had attended union meet-

ings; all except George Jenkins had engaged in the Feb-

ruary 1984 “walkout” at Bowlby; and all of them had

otherwise openly and actively supported the Union. War- —

ren Bryant openly wore a “Vote Yes” button; George

Jenkins told Supervisor Kenny Smith and fellow workers

he ..vored the Union; Charles Brown told Supervisors Bill

Caldwell and James Walker that the employees needed the

Union; Oliver Munn passed out Union leaflets and talked

favorably for the Union to fellow employees and remarked

in Supervisor Smith’s presence that it was “Union time”;

29a

Fred (Freddie Levi) Brown passed out Union leaflets until

Supervisor Burns instructed him to cease doing so; John

Ganey passed out Union leaflets and talked favorably for

the Union to fellow employees until Supervisor Green in-

structed him to cease doing so; and Greg Burton contacted

the Union’s IUD and requested that its representative talk

with Bowlby’s employees, was the spokesman for those

employees, solicited their signatures on the petitions, and

openly wore a T-shirt reading “100 percent Union.”

Hutchinson testified that several e: ployees were hired

by General Wood who had no past experience in wood-

treating work; that well before the plant’s purchase he

knew he was to be its operations manager and would

superintend its entire operations; and that in late June he

inventoried for General Wood all of Bowlby’s assets at the

plant. It is incredible that, having that knowledge and his

prior training and experience in the industry,~ Hutchinson

was so imprudent that he did not learn, and as ignorant

as he testified himself to be, after July 2, of the circum-

stances that attended the Union’s campaign at the plant |

and Bowlby’s reactions to its employees and the Union in

respect thereto and also the identity of those of Bowlby’s

employees who were and were not active supporters of

the Union. -

Moreover, the reasons given by Hutchinson and Greene

for refusing to hire the seven employees were vague and

conclusory and more than strongly smacked of pretext:

Greene was “not satisfied’? with the results of Charles

Brown’s work at Bowlby; Hutchinson refused to hire Munn

because the 910 Caterpillar lift was in two pieces when

he had not enquired as to which other employees had

*“ Hutchinson testified that he had a Bachelor of Science degree in

Forest Management from West Virginia University, had worked for

Bowlby on and off from 1973 to 1983, and had been employed by four

other companies in the wood industry.

30a

contemporaneously operated it with Munn and their rec-

ords and performance in doing so; Greene recommended

against hiring Jenkins because of his stopping the machine

during a downpour and Greene’s issuing him the warning

therefor (after the Union’s campaign was well underway);

Hutchinson refused to hire Bryant because he had seen

him operate the ‘125 lift,” which was demolished when

General Wood bought the plant, and on cross-examination

testified that he had never observed Bryant operating it;

Hutchinson did not hire Fred (Freddie Levi) Brown be-

cause he was “not impressed” with the way he operated

a fork lift truck; Hutchinson did not hire Ganey because

he deemed him not to be a “suitable employee for what

I was getting ready to embark on’’; and Hutchinson did

not hire Burton because General Wood did not intend to

do any post pointing, when Burton had operated the post

pointing machine for Bowlby for only about the last two

months preceding the plant’s sale and had wider experi-

ence performing other jobs at Bowlby.

It was thus not without good reason that the ALJ and

the Board credited the testimony of the seven employees

whom General Wood refused to hire and did not credit

that of Hutchinson and Greene.”

Section 8(aX3) of the Act makes it an unfair labor prac-

tice for an employer to encourage or discourage member-

2 Neither Greene nor Hutchinson assigned Burton’s alleged tardiness

and absenteeism while he worked at Bowlby, in respect to which Greene

had issued to him the warning and the three-day suspension, as reason

for General Wood’s refusal to hire him.

* In NLRB v. Nueva Engineering, Inc., 761 F.2d 961, 965 (4th Cir.

1985), this Court referred to the rule enunciated in Universal Camera,

supra, that “‘{i}f the findings of the Board have substantial support in

the record as a whole, our inquiry ends . . . even though we might have

reached a different result had we heard the evidence in the first in-

stance,” and pointed out that such was “particularly true where...

the record is fraught with conflicting testimony and essential credibility

determinations have been made.’”’ (Citations omitted.)

3la

ship in a labor organization by ‘‘discrimination in regard

to hire.’ Hence, a successor employer is free either to

hire or to refuse to hire a former employee of its pred-

ecessor, except that if the successor refuses to hire such

an employee because of his pro-union activities or senti-

ments, and is thus motivated in refusing to do so by anti-

union animus, then the successor has “discriminated in

regard to hire” in respect to that employee and has thereby

committed an unfair labor practice in violation of section

8(aX3) of the Act. See NLRB v. Burns International Se-

curity Services, Inc., 406 U.S. 272, 280 n.5, 92 S.Ct. 1571,

32 L.Ed.2d 61 (1972); Fall River Dyeing & Finishing Corp.

v. NLRB, 482 U.S. 27, 40, 107 S.Ct. 2225, 96 L.Ed.2d 22

(1987).

In NLRB v. Nueva Engineering, Inc., 761 F.2d 961, 967

(4th Cir. 1985), this court explained:

Section 8 (aX3) of the Act, 29 U.S.C.

§ 158(aX3), makes it unlawful to discharge a

worker because of union activity. The Supreme

Court has affirmed, as a uniform standard, that

where an employer’s opposition to protected ac-

tivity is shown to be a substantial or a motivating

factor in the decision to take adverse action

against an employee, the employer will be found

to have violated the Act unless the employer is

able to demonstrate that the adverse action would

have occurred in the absence of the employee’s

protected conduct. NLRB v. Transportation Man-

agement Corp., 462 U.S. 393, 103 S.Ct. 2469,

2474-2475, 76 L.Ed.2d 667 (1983); see NLRB v.

Daniel Constr. Co., 731 F.2d 191, 197 (4th Cir.

1984). In determining whether a section 8(aX3)

violation occurred in this case, there are two cru-

cial inquiries. Was Nueva’s decision to terminate

employee Leach motivated by anti-union consid-

erations? If so, has Nueva met its burden to show

32a

that the termination would have occurred re-

gardless of the forbidden motivations?

Turning first to the question of motive, we

note that since motive is a question of fact, the

Board may infer discriminatory motivation from

either direct or circumstantial evidence. Ameri-

can Thread Co. v. NLRB, 631 F.2d 316, 321 (4th

Cir. 1980); Neptune Water Meter Co. v. NLRB,

551 F.2d 568, 569 (4th Cir. 1977).

The discharge of an employee in violation of section

8(aX3) of the Act was involved in Nueva Engineering, su-

pra. Involved here is discrimination in regard to hire in

violation thereof. The above-quoted language equally ap-

plies here. ,

The Board found and held that a preponderance of the

evidence established that General Wood violated section

8(aX1) and (8) of the Act by its refusal to hire the above

seven employees and that General Wood was motivated

to do so by their having engaged in concerted activities

in support of the Union. General Wood asserts that, in so

doing, the Board improperly imputed to General Wood

Green’s knowledge gained at Bowlby that they had done

so. The evidence clearly supported that imputation. Un-

questionably, Greene knew who the Union activists in

Bowlby’s unit were. He understandably never testified to

the contrary. Having formerly been Bowlby’s production

manager, he came to Ueneral Wood in the same capacity,

was second in command there under Hutchinson and ac-

tively participated in General Wood’s hiring procedures by

screening the applicants, interviewing many of the appli-

cants and recommending to Hutchinson which of most, if

not all, of them should or should not be hired. As such,

his knowledge was that of General Wood.”’

= The evidence leaves no question but that Greene acted as General

Wood’s agent commencing no later than July 2. See American Press,

Inc. v. NLRB, 833 F.2d 621, 625 (6th Cir. 1987).

33a

There is substantial evidence on the record to support

the Board’s finding and holding that General Wood vio-

lated section 8(aX1) and (3) of the Act by its refusal to

hire the seven Bowlby employees and that General Wood

was motivated to do so by its anti-union animus manifested

against them because of their having engaged in concerted

activities in support of the Union, and the Board com-

mitted no error by so finding and holding.

The Successorship Issue

General Wood contends that there is not substantial

evidence on the record to support the Board’s finding and

holding that General Wood’s status as Bowlby’s “‘succes-

sor” was such as to warrant, as a matter of law and fact,

the Board’s entry of its bargaining order against General

Wood and that the Board erred in so doing.

In Howard Johnson Co. v. Detroit Local Joint Executive

Bd., 417 U.S. 249, 262 n.9, 94 S.Ct. 2236, 41 L.Ed.2d 46

(1974), the Court remarked:

[TJhe real question in each of these ‘‘successor-

ship” cases is, on the particular facts, what are

the legal obligations of the new employer to the

employees of the former owner or their repre-

sentative. The answer to this inquiry requires

analysis of the new employer and of the policies

of the labor laws in light of the facts of each

case and the particular legal obligation which is

at issue, whether it be the duty to recognize and

bargain with the union, the duty to remedy unfair

labor practices, the duty to arbitrate, etc. There

is, and can be, no single definition of “‘successor”’

which is applicable in every context.

In Fall River Dyeing, supra, the Court summarized some

of its pronouncements dealing with the factors which the

courts must consider in making that enquiry and analysis

as follows:

34a

In Burns we approved the approach taken by

the Board and accepted by courts with respect

to determining whether a new company was in-

deed the successor to the oid. 406 U.S., at 280-

81, and n.4. This approach, which is primarily

factual in nature and is based upon the totality

of the circumstances of a given situation, requires

that the Board focus on whether the new com-

pany has “acquired substantial assets of its pred-

ecessor and continued, without interruption or

substantial change, the predecessor’s business op-

erations.” Golden State Bottling Co. v. NLRB,

414 U.S., at 184. Hence, the focus is on whether

there is “substantial continuity’ between the en-

terprises. Under this approach, the Board ex-

amines a number of factors: whether the business

of both employers is essentially the same; whether

the employees of the new company are doing the

same jobs in the same working conditions under

the same supervisors; and whether the new entity

has the same production process, produces the

same products, and basically has the same body

of customers. See Burns, 406 U.S., at 280, n.4;

Aircraft Magnesium, a Division of Grico Corp.,

265 N.L.R.B. 1344, 1345 (1982), enf'd, 730 F.2d

767 (CA9 1984); Premium Foods, Inc., 260

N.L.R.B. 708, 714 (1982) enf'd, 709 F.2d 623

(CA9 1983).

In conducting the analysis, the Board keeps in

mind the question whether “those employees who

have been retained will understandably view their

job situations as essentially unaltered.” See

Golden State Bottling Co., 414 U.S., at 184; NLRB

v. Jeffries Lithograph Co., 752 F.2d 459, 464 (CA9

1985). This emphasis on the employees’ perspec-

tive furthers the Act’s policy of industrial peace.

If the employees find themselves in essentially

35a

the same jobs after the employer transition and

if their legitimate expectations in continued rep-

resentation by their union are thwarted, their

dissatisfaction may lead to labor unrest. See

Golden State Bottling Co., 414 U.S., at 184.

Id., 482 U.S. at 43-44.

Substantial record evidence unquestionably supports the

Board’s finding, with which General Wood takes no issue,

that on June 29, 1984, General Wood purchased from

Bowlby the physical plant and facility, including its pro-

duction equipment, vehicles and inventory, hired almost all

of Bowlby’s supervisory staff, and on July 9 commenced

to engage in the same business in which Bowlby formerly

engaged, that of treating wood, including telephone poles,

fence posts, pilings and other items, in the same manner

in which Bowlby had treated them, and selling those items

to substantially the same customers to whom Bowlby had

sold them when Bowlby had owned and operated the plant.

General Wood rather raises other points of argument in

support of its contention that it was not Bowlby’s suc-

cessor, arguing that even if a majority of Bowlby’s em-

ployees signed petitions selecting the union as their

bargaining representative at the plant, the Board failed

specifically to identify which of Bowlby’s former employees

in the unit were hired by General Wood or what per-

centage of Union support existed among the employees in

the newly-constituted unit at General Wood; that all re-

ported successorship court decisions rest upon either the

certification of a union as the representative of the unit

in the predecessor’s work force or upon the predecessor’s

having voluntarily recognized the union as such, in each

of which circumstances the employees in the predecessor’s

unit are all presumptively represented by the union; and

that if a majority of the employees in the predecessor’s

unit is hired into the successor’s unit, that presumption

survives, but that if a majority of them is not hired therein,

36a

then it violated Board policy to issue a bargaining order

in the non-majority setting in the successor’s newly-con-

stituted unit.

It is true that the Board did not specifically identify

which of Bowlby’s former employees in the unit were hired

by General Wood or the precise percentage of Union sup-

port that existed in the newly-constituted unit at General

Wood, but the Board was not required specifically, nor

was it remiss in failing, to do so.

What the ALJ did find in this regard was the following:

[Bly the end of July [General Wood] had hired

employees in virtually all pre-existing production

and maintenance classifications of its predeces-

sor, Bowlby. Over 60 percent of General Wood's

ones and were later hired permanently.

An analysis of the employees in each of Bowlby’s and

87a

Twelve of the employees in Bowlby’s unit did not sign

any of the seven petitions.” As stated above, 50 of the

employees in Bowlby’s unit purportedly signed the seven

petitions. The evidence indicates that 45 of those 50 did

so by February 9, when the Union formally demanded

recognition by Bowlby and that the remaining five of the

50 respectively did so on February 16 and 29, March 17

and 21, and April 3.

On July 12, General Wood’s unit included approximately

43 employees, excluding the three then temporary ones

but including Kenneth A. Smith, a former Bowlby super-

visor who did not sign a petition but was hired into Gen-

eral Wood’s unit as a pole machine operator.

Eighteen of those 43 employees in General Wood's unit,

including Kenneth A. Smith, were employees who had not

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39a

If all 18 of those Bowlby unit employees who purport-

ediy signed the seven petitions were added to the 7 former

Bowlby employees whom General Wood had discrimina-

torily refused to hire, then there would have been 25 of

Bowlby’s unit employees who had signed the petitions in

ood’s unit, and those 25 would have clearly con-

can be said with far greater likelihood than not

that a majority of the loyees in General Wood’s unit

would have been found to have signed the petitions opting

for union representation but for General Wood’s discri-

minatorily having refused to hire the seven former Bowlby

unit employees who had signed the petitions.”

Genera! Wood further argues that the unfair labor prac-

i Bowlby were not “hallmark’”’ violations

and thus were not sufficiently serious to warrant the

Board’s issuance of a bargaining order against Bowlby,

wherefore the Board's issuance of the one against General

improper.

was

this connection, the ALJ found as to Bowlby and

General Wood respectively, that:

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40a

[A] bargaining order should issue against...

Bowlby in view of Bowlby’s unlawful interroga-

tion, threats, disciplinary warnings and suspen-

sion of its employees, and most significantly in

its packing of the unit by importing employees

to subvert the election process which dissipated

the Union’s majority, and also in view of the

threats of plant closure, subcontracting out of

work, and job loss engaged in by... Bowlby in-

cluding its threat of subcontracting and that of

unspecified reprisals issued by its president. The

threats of plant closure, job loss and subcontract-

ing, as well as the unit packing, clearly constitute

hallmark violations. The combination of these

hallmark violations and the impossibility of rem-

edying these violations by Bowlby as a result of

its sale of the plant clearly demonstrate[s] that

it is no longer posgible to conduct a free and fair

election.

[Tjhe acts of General Wood by unlawfully refus-

ing to hire known union adherents as found

herein were clearly calculated to subvert the elec-

tion process in order to assure a lack of union

support. The passage of time and the turnover

of supervisory personnel at General Wood do not

serve to obliterate its bargaining obligation as a

successor. Keystone Pretzel Bakery, 256 NLRB

234, 335 (981) (sic), enf’d. 696 F.2d 257 (2nd Cir.

1983).

We find no published opinion of this Court wherein it

dealt ‘with or mentioned “‘hallmark”’ violations. In NLRB

v. Jamaica Towing, Inc., 632 F.2d 208, 212-13 (2d Cir.

1980), the court pointed out that so-called “hallmark” vi-

clations had been held to include plant closure, a threat

of plant closure or loss of employment, a grant of benefits

to employees or the reassignment, demotion or discharge

| } ™

4la

of union adherents in violation of section &(aX3) of the

Act; that such violations will support the issuance of a

bargaining order absent “significant mitigating circum-

stances”; that such conduct “justifies a finding without

extensive explication that it is likely to have a lasting

inhibitive effect on a substantial percentage of the work

force”; and that ‘‘an array of less serious violations which

must either be numerous or be coupled with some other

factor intensifying their effect ... fall within Gissel’s sec-

ond category and support an order to bargain,’”’ thus ca-

tegorizing “hallmark” violations as those falling within

Gissel’s first category.

In NLRB v. Maidsville Coal Co., 718 F.2d 658 660 (4th

Cir. 1983) (en banc), cert. denied, 405 U.S. 1079, 104 S.Ct.

1441, 79 L.Ed.2d 761 (1984), this Court pointed out that:

The Supreme Court in Gissel discussed varying

factual circumstances with which the Board might

be faced when deciding to issue a bargaining or-

der vel non without requiring an election. The

first set of circumstances consists of ‘‘excep-

tional” cases marked by “outrageous” and “per-

vasive” unfair labor practices of “such a nature

that their coercive effects cannot be eliminated

by the application of traditional remedies, with

the result that a fair and reliable election cannot

be had.” Gissel Packing Co., 395 U.S. at 613-14,

89 S.Ct. at 1940. In this category of cases, a

bargaining order may issue even though the

Union may not be able to prove that it ever had

a majority status among employees. A second set

of circumstances consists of “less extraordinary

cases marked by less pervasive practices.” Jd. at

614, 89 S.Ct. at 1940. In this category of cases,

if the Union at one point during the campaign

held a card majority, a bargaining order should

issue when:

42a

[Tyhe Board finds that the possibility of eras-

ing the effects of past practices and of en-

suring 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 or-

der. .

Id. at 614-15, 89 S.Ct. at 1940; see also id. at

612 n.32. A third category of cases identified by

the Court consist{s] of “minor or less extensive

unfair labor practices, which, because of their

minimal impact in the election machinery, will not

sustain a bargaining order.” Jd. at 615, 89 S.Ct.

at 1940.

In Standard-Coosa-Thatcher Carpet Yarn v. NLRB, 691

F.2d 1183, 1144 (4th Cir. 1982), where the union had es-

tablished a card majority, petitioned for an election which

it lost and the employer had committed numerous viola-

tions of section 8(aX1) of the Act and some violations of

section &(aX3) thereof during the union’s campaign, in en-

forcing the bargaining order issued by the Board, the Court

stated:

The Company [employer] responded to the

Union’s most recent campaign with threats of

plant closure, threats of retaliation against Union

activists, and discriminatory discipli ead os

thwarting unionization [enforcement of a plant

rule in a manner calculated to discourage Union

activities among employees]. As is widely rec-

inhibitive effect’’ on employees’ formulation and

expression of free choice regarding unionization.

N.L.R.B. v. Jamaica Towing, Inc., 682 F.2d at

213. It therefore justifies a Gissel order unless

a very strong showing negates the inference of

43a

lasting effects. Because the record in this case

reasonably supports such inferences, we cannot

substitute our judgment for that of the Board.

When this Court’s language quoted from Standard-

Coosa-Thatcher next above is read in relation to that quoted

from Jamaica Towing above, it is clear that, without re-

ferring to the employer’s violations of section 8(aX3) in

Standard-Coosa-Thatcher as “hallmark” violations, this

Court held those violations to constitute conduct that the

court in Jamaica Towing held to be “hallmark” violations

falling within the first category of unfair labor practices

described in Gissel. It is further clear that since in Jamaica

Towing the court designated an unlawful discharge of an

employee in violation of section 8(aX3) of the Act to be a

“hallmark” violation, then General Wood’s refusal to hire

the seven former Bowlby employees in violation thereof

would likewise constitute such a violation.

Rigging or attempting to rig an election in which can-

didates are standing for election to public office is criminal

in most if not all jurisdictions of the United States. It has

pervasive, enduring and adverse effects on the electoral

process in that it thwarts the law and the public weal and

creates doubt in the minds of some voters as to whether

the casting of their votes in future elections is not an idle

exercise and thus undermines the integrity of the system.

Unit packing by Bowlby here, the counterpart of such

rigging in a public election, almost certainly had equally

pervasive, enduring and adverse effects upon the minds

of Bowlby’s employees in the unit. That Bowlby was

thwarted in accomplishing its aim of unit packing to swing

the election in its favor by the Board’s blocking and re-

scheduling the election does not remove those effects of

its conduct in so doing. We deem its unit packing to con-

stitute a hallmark violation.

Bowlby thus committed violations of the Act, including

repeated threats of plant closure and loss of employment

44a

and sudden enforcement of plant rules in a manner cal-

culated to discourage Union activities among its unit, to

say nothing of its unit packing—all of which violations fell

within the first category of unfair labor practices men-

tioned in Gissel—and also committed numerous unfair labor

practices that fell within the second category mentioned

therein. General Wood, as Bowlby’s successor, thereafter

refused to hire the seven former Bowlby employees and

thereby committed additional violations of section 8(aX3)

of the Act, conduct that fell within that first category,

and thereby added its own conduct that tended to have a

lasting inhibitive effect on the employees’ formulation and

expression of free choice regarding unionization.

There was substantial evidence on the record to support

the Board’s finding and holding that General Wood was

Bowlby’s successor, and the Board’s issuance of the bar-

gaining order against General Wood, and the Board com-

mitted no error in so doing. |

The “Substantial and Representative

Complement” Issue

‘General Wood’s claim that there was not substantial

evidence on the record to support the Board’s finding and

holding that the end of July 1984, instead of a September

1984 date, was the appropriate “substantial and repre-

sentative complement” date in respect to General Wood’s

work force, and that the Board erred in so holding, is

without merit.

In Fall River Dyeing, supra, the Court said:

In deciding when a “substantial and represent-

ative complement”’ exists in a particular employer

transition the Board examines a number of fac-

tors. It studies “whether the job classifications

designated for the operation were filled or sub-

stantially filled and whether the operation was in

normal or substantially normal production.” See

Premium Foods, Inc. v. NLRB, 709 F.2d 623,

45a

628 (CA9 1983). In addition, it takes into con-

sideration ‘‘the size of the complement on that

date and the time expected to elapse before a

substantially larger complement would be at

work ... as well as the relative certainty of the

employer’s expected expansion.” Ibid:

Id., 482 U.S. at 48-49.

Hutchinson testified that when General Wood purchased

the plant, it intended to operate two shifts, and that be-

tween September 1 and 15, 1984, two shifts commenced

operating there. He also testified that in July 1984, when

General Wood was preparing to commence operations, he

instructed Greene that he did not want two shifts but

rather wanted one shift that could manufacture a saleable

product.

Greene testified that it was “really sketchy’’ when Gen-

eral Wood first commenced to operate the plant as to

whether a second shift would be put on; that it was hard

to answer whether as of the end of July General Wood’s

employee complement was complete, because as of July 27

he was still interviewing for four positions on the pole

machine crew; that at that time the whole plant was fully

operating with one shift but was not operating to full

capacity, because the pole machine department was really

required to work two shifts to give the framing depart-

ment enough poles to keep dry kilns and the cylinders

closed.

As to this issue, the ALJ found that:

General Wood obtained successorship status at

least by thd end of July when it hired employees

in the pre-existing classifications and employed a

complement of 44 unit employees. I reject...

General Wood’s contention that the relevant date

for examining the employee complement should

be 18 September when it expanded the number

46a

of its shifts as this expansion was highly uncer-

tain in July according to the testimony of Greene.

Considering the factors that must be considered in de-

ciding when a “substantial and representative comple-

ment” exists as set forth in the above quoted language

from Fall River Dyeing, there was substantial evidence on

the record to support the ALJ’s finding that the end of

July was the appropriate “substantial and representative

complement”’ date as to General Wood. The evidence shows

that then its job classifications designated for operation of

the plant were filled or substantially filled, that the plant

was in normal or substantially normal production, that the

size of General Wood’s complement then was not appre-

ciably smaller than it was in September,™ and that it was

questionable at the end of July as to when if ever General

Wood’s complement would be expanded beyond that then

existing.

As stated earlier herein, if the ALJ’s findings of fact

have substantial support in the record as a whole then our

inquiry ends, and such is particularly true where the tes-

timony is conflicting, as it was between that of Hutchinson

and that of Greene here, and essential credibility deter-

minations have been made by the ALJ.

We are not unmindful that an election, and not a bar-

gaining order, is the traditional and preferred method for

determining the bargaining agent for employees. NLRB v.

Apple Tree Chevrolet, Inc., 671 F.2d 838 (4th Cir. 1982).

However where, as here,

the possibility of erasing the effects of past prac-

tices and of ensuring a fair election... by the

use of traditional remedies, though present, is

* General Wood’s payroli ending July 22 showed a total of 74 em-

ployees, including al] employees on its payroll then. Its payroll ending

September 16 showed a total of 90 employees, which included all of

its employees then on its payroll.

47a

slight and .. . employee sentiment once expressed

through cards would, on balance, be better pro-

tected by a bargaining order, ther such order

should issue.

Gissel, 395 U.S. at 614-15.

For the above reasons, the Board’s motion to correct

the Court’s February 16, 1990, decision is sustained; that

decision is vacated and is replaced by the within decision;*

and pursuant to this Court’s order entered herein on April

30, 1990, the Board’s petition for enforcement of its order

against both Bowlby and General Wood is granted.

PETITION GRANTED

* Shortly after the filing of the Board’s motion to correct the Court’s

February 16, 1990, decision, that decision was withdrawn from publi-

cation.

48a

APPENDIX B

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Cases 11—CA—11282

11—CA—11376

11—CA—11487

PURKE-PARSONS BOWLBY AND ITS SUCCESSOR,

GENERAL WOOD PRESERVATIVE COMPANY

and

INTERNATIONAL WOODWORKERS OF AMERICA,

AFL—CIO

DECISION AND ORDER

On June 30, 1986, Administrative Law Judge Lawrence

W. Cullen issued the attached decision. The Respondent,

49a

affirm the judge’s rulings, findings,? and conclusions and

to adopt the recommended Order as modified.’

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50a

Wood commenced its takeover of predecessor Bowlby by

discriminatorily refusing to hire known union activists and

by committing that violation through Production Manager

Thomas Greene, who had held the same position with the

predecessor. Thus, whatever might be the case had the

Respondent General Wood wiped the slate clean and hired

an entirely new managerial and supervisory complement,

the employees here had received the plain message that

supporting the Union was a dangerous proposition re-

gardless of who the employer was. Compare NLRB v. Cott

Corp., 578 F.2d 892 (1st Cir. 1978), denying enf. to 232

NLRB 312 (1977) (finding extension of Gissel obligation

to successor inappropriate where successor hired all the

predecessor’s employees, remedied all the predecessor’s

8(aX3) and (1) violations, and committed no violations of

its own aside from its alleged unlawful failure to bargain

with the union).

With respect to the question whether union majority was

validly established by a majority of signatures on a petition

that stated agreement to be represented by the AFL—

CIO and/or an appropriate affiliate, we rely on the follow-

ing: (1) the credited evidence that after signatures were

obtained on that petition, a subsequent meeting was held

at which employees voted to be represented by the Union;

(2) the execution in mid-March by the Union and

Respondent Burke-Parsons-Bowlby of an election agree-

ment pursuant to which the Union was to appear on the

Threats,” the judge inadvertently erred in referring to the testimony

of “Paul Barnes.’’ The correct reference is ‘Paul Bowens.”

*In this Order, the judge recommended the inclusion of a visitatorial

clause, authorizing the Board, for compliance purposes, to obtain dis-

covery from the Respondent under the Federal Rules of Civil Procedure

subject to the supervision of the United States court of appeals en-

forcing the Order. Under the circumstances of this case, we find it

unnecessary to include such a clause. See Cherokee Marine Terminal,

287 NLRB No. 53 (Jan. 28, 1988). Accordingly, we shall modify the

judge’s Order to delete this clause.

5la

ballot in the election scheduled for April 6, 1984: (3) the

circulation of a letter from President Richard Bowlby to

all plant employees commenting that ‘There has been much

said in the past few weeks about the Woodworkers Union’’

and urging the employees to vote against the Union; and

(4) the absence of evidence of attempts by any employee

who signed the initial union authorization petition to re-

voke his authorization. In sum, a majority of employees

initially agreed that they were willing to be represented

by an affiliate of the AFL—CIO, and it was clear who

that affiliate was before the Union made its bargaining

demand on Respondent General Wood.

ORDER

The National Labor Relations Board adopts the rec-

ommended Order of the administrative law judge as mod-

ified below and orders that the Respondent, General Wood

Preservation Company, Leland, North Carolina, its offi-

cers, agents, successors, and assigns, shall take the action

set forth in the Order as modified.

Substitute the following for paragraph 2(e).

“(e) Preserve and, on request, make available to the

Board or its agents for examination and copying, all pay-

roll records, social security payment records, timecards,

personnel records and reports, and all other records nec-

essary to analyze the amount of backpay due under the

terms of this Order.”

Dated, Washington, D.C. May 12, 1988

}

James M. Stephens, Chairman

Wilford W. Johansen, Member

Mary Miller Cracraft, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

etteiiiaaiiiaieiiiii ii

52a

APPENDIX C

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

ATLANTA BRANCH OFFICE

Cases 11-CA-11282

11-CA-11376

11-CA-11487

BURKE-PARSONS BOWLBY AND ITS SUCCESSOR,

GENERAL WOOD PRESERVATIVE COMPANY

and

INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO

George S. Carson, Esq., of Winston Salem, NC, for the

General Counsel.

Jeffrey P. Sweetland, Esg., of Riverdale, GA, for the

Charging Party.

Robert A. Valois, Esq., and Thomas A. Farr, Esq., (Mau-

pin, Taylor, Ellis and Adams) of Raleigh, NC, for the

Respondent.

DECISION

Statement of the Case

LAWRENCE W. CULLEN, Administrative Law Judge:

This case was heard before me in Wilmington, NC, on 28,

29 and 80 October 1985. The original charge in Case 11-

CA-11282 was filed by the International Woodworkers of

America, AFL-CIO (“the Charging Party” or “the Union’’)

on 4 April 1984 against Burke-Parsons Bowlby

(“Respondent Bowlby” or “‘Bowlby’’) and the original com-

plaint was issued by the Acting Regional Director for Re-

53a

gion 11 of the National Labor Relations Board (“the

Board”) in this case on 11 May 1984 and alleged that

Respondent Bowlby had violated Section 8(aX1) of the Na-

tional Labor Relations Act (‘‘the Act’) by interrogating

its employees concerning their union activities, sympathies,

and desires and by threatening them with plant closure,

loss of jobs, sale of the plant, and unspecified reprisals if

they selected the Union as their collective bargaining rep-

resentative and by promising its employees improved ben-

efits if they abandoned their support of the Union and by

engaging in unit packing by transferring employees for

the purpose of defeating the Union in the scheduled elec-

tion. Respondent Bowlby by its answer filed 23 May 1984

denied the alleged violations of the Act. On 8 June 1984

the Regional Director of Region 11 amended the complaint

in 11-CA-11282 by deleting the allegation of unit packing.

On 5 July 1984 the Charging Party filed an original charge

in Case 11-CA-11376 and subsequently filed an amended

charge in Case 11-CA-11376 on 7 August 1984. On 14

August 1984 the Regional Director for Region 11 filed an

Order Consolidating Cases 11-CA-11287 and 11-CA-11376

alleging that Respondent Bowlby had violated Section

8(aX1) of the Act by interrogating its employees concerning

their union activities, sympathies, and desires, and by

threatening its employees with loss of benefits, loss of jobs,

subcontracting of work, sale of the plant, and unspecified

reprisals if they selected the Union as their collective bar-

gaining representative and by threatening its employees

with plant closure because of their unidn activities and by

promising its employees improved benefits if they aban-

doned their support of the Union and by engaging in unit

packing by transferring employees for the purpose of de-

feating the Union in the scheduled election. On 22 August

1984 Respondent Bowlby filed its answer in Cases 11-CA-

11282 and 11-CA-11876 denying the alleged violations of

the Act. On 29 October 1984 the Charging Party filed an

original charge in Case 11-CA-11487 against Respondent

54a

Bowlby and its successor and Party-In-Interest, General

Wood Preservative Co. (“Respondent General Wood”’ or

“General Wood’’). On 14 December 1984 the Acting Re-

gional Director for Region 11 filed a second Order Con-

solidating Cases 11-CA-11282, 11-CA-11376 with Case 11-

CA-11487 and a consolidated complaint in these cases and

added General Wood as a Respondent in these cases as

an alleged successor of Bowlby. The consolidated complaint

in Cases 11-CA-11282, 11-CA-11376, and 11-CA-11487 al-

leges that Bowlby interrogated employees concerning their

union activities, sympathies, and desires, threatened its

employees with loss of benefits, loss of jobs, subcontracting

of work, sale of the plant, and unspecified reprisals if they

selected the Union as their collective bargaining repre-

sentative, threatened the employees with plant closure and

blacklisting because of their union activities, engaged in

unit packing by transferring employees to its Leland, North

Carolina facility for the purpose of defeating the Union in

the scheduled election, and since on or about February

1984 more stringently enforced work rules and policies

because of employees’ union activities, all in violation of

Section 8(aX1) of the Act. The complaint further alleges

that Respondent Bowlby issued written warnings to cer-

tain of its employees because of their union activities in

violation of Section 8(aX1) and (8) of the Act. The com-

plaint further alleges that Respondent General Wood re-

fused to hire certain former employees of Respondent

Bowlby because of their union activities in violation of

Section 8(aX1) and (8) of the Act. Respondent Bowlby by

its amended answer filed 24 December 1984 denied the

commission of the alleged violations of the Act. Respondent

General Wood by its answer filed 3 January 1985 denied

that it was a successor to Burke-Parsons and denied the

commission of any of the alleged violations of the Act. On

30 August 1985 the Regional Director for Region 11 issued

an amended consolidated complaint in Cases 11-CA-11282,

11-CA-11376, and 11-CA-11487 setting out the aforesaid

55a

allegations listed above in the original consolidated com-

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