126 F.3d 268 (4th Cir. 1997), 96-1575, Be-Lo Stores v. N.L.R.B.

Docket Nº:96-1575, 96-1657.
Citation:126 F.3d 268
Party Name:BE-LO STORES, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Food and Commercial Workers International Union, Local 400, AFL-CIO, CLC, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, United Food and Commercial Workers International Union, Local 400, AFL-CIO, CLC, Intervenor, v. BE-LO STORES, Respondent.
Case Date:September 16, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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126 F.3d 268 (4th Cir. 1997)

BE-LO STORES, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent,

United Food and Commercial Workers International Union,

Local 400, AFL-CIO, CLC, Intervenor.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

United Food and Commercial Workers International Union,

Local 400, AFL-CIO, CLC, Intervenor,

v.

BE-LO STORES, Respondent.

Nos. 96-1575, 96-1657.

United States Court of Appeals, Fourth Circuit

September 16, 1997

Argued Jan. 27, 1997.

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ARGUED: Stanley Graves Barr, Jr., Charles Vincent McPhillips, Kaufman & Canoles, P.C., Norfolk, VA, for Be-Lo Stores. John Emad Arbab, National Labor Relations Board, Washington, DC, for NLRB. Carey Robert Butsavage, Butsavage & Associates, P.C., Washington, DC, for Intervenor. ON BRIEF: Arlene F. Klinedinst, Ashley L. Taylor, Jr., Kaufman & Canoles, P.C., Norfolk, VA, for Be-Lo Stores. Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Peter Winkler, Supervisory Attorney, William A. Baudler, National Labor Relations Board, Washington, DC, for NLRB. George Wiszynski, Butsavage & Associates, P.C., Washington, DC, for Intervenor.

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Before ERVIN and LUTTIG, Circuit Judges, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Reversed in part, affirmed in part, and remanded by published opinion. Judge LUTTIG wrote the majority opinion, in which Judge HILTON joined. Judge ERVIN wrote a dissenting opinion.

OPINION

LUTTIG, Circuit Judge:

"[O]ur nation's labor policies have never included a preference for imposing a collective bargaining representative upon those who have not affirmatively chosen that representative by election." N.L.R.B. v. Apple Tree Chevrolet, Inc., 671 F.2d 838, 840 (4th Cir.1982) (Apple Tree Chevrolet II ). Since "an election, not a bargaining order, remains the traditional, as well as the preferred, method for determining the bargaining agent for employees," N.L.R.B. v. Appletree Chevrolet, Inc., 608 F.2d 988, 996 (4th Cir.1979) (Appletree Chevrolet I ), the "extraordinary and drastic remedy" of forced bargaining pursuant to N.L.R.B. v. Gissel, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), is reserved for only the most "unusual cases," N.L.R.B. v. J. Coty Messenger Serv., Inc., 763 F.2d 92, 99 (2nd Cir.1985). Because such an order is disfavored, we have admonished the National Labor Relations Board that it must undertake a comprehensive analysis for each of Gissel 's necessary predicate findings, and support its order with detailed record evidence. It is, in other words, "manifestly insufficient" for the Board to satisfy the Gissel predicates by "simply engaging in perfunctory or boiler-plate language, or using a litany, reciting conclusions by rote without factual explication." Appletree Chevrolet I, 608 F.2d at 997 (internal quotation marks omitted). Notwithstanding our repeated warnings, and similar warnings from our sister circuits, "even a cursory examination of the decisions applying Gissel ... reveals that the Board has declined repeatedly to assist the courts ... by revealing [its] reasons for issuing Gissel bargaining orders." Red Oaks Nursing Home, Inc. v. N.L.R.B., 633 F.2d 503, 508 (7th Cir.1980) (citing, inter alia, Appletree Chevrolet I, 608 F.2d at 996).

Here, notwithstanding our repeated admonitions, the Board imposed a far-reaching mandatory bargaining order that would require the company to bargain with the United Food and Commercial Workers Union, although significant questions exist as to whether the Union ever achieved majority status among the company's employees; some six years have elapsed since the company's election victory; more than two-thirds of the company's work force employed at the time of the company's unfair labor practices are no longer even employed by the company; there were relatively few violations and they occurred in less than one-half of the company's thirty stores; and no evidence whatsoever exists that a fair election could not be held today. Moreover, the Board imposed its mandatory bargaining order on the strength of little more than "perfunctory or boiler-plate language" lacking substantive "factual explication." Appletree Chevrolet I, 608 F.2d at 997 (internal quotation marks omitted).

Because a mandatory bargaining order should not have issued under the facts of this case, and such an order would not have been sustainable on the basis of the kind of ipse dixit relied upon by the Board here in any event, we reverse the Board's entry of the mandatory bargaining order. We also reverse, as unsupported by substantial evidence, the Board's conclusions that Be-Lo violated the National Labor Relations Act, 29 U.S.C. § 151, et seq. ("the Act") by (1) distributing a "pink slip" flyer, (2) denying Union picketers access to its property, and (3) dismissing or failing to recall five pro-union employees. We affirm, however, for reasons discussed, a number of the Board's other findings with regard to individual personnel actions.

I.

In May 1990, intervenor United Food and Commercial Workers Union, Local 400 (the "Union") began organizing at several of Be-Lo's retail grocery stores. In February 1991, following a lengthy recruitment

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campaign, the Union demanded recognition, advising Be-Lo that a majority of the company's employees had signed union authorization cards designating the Union as their official bargaining representative. Be-Lo challenged the Union's claim of majority and declined to recognize the Union, and an election to resolve the matter was scheduled for March 21, 1991.

During the weeks preceding the election, the company openly campaigned against unionization, holding meetings, circulating memoranda, showing videotapes, and sending out flyers, including a flyer in the form of a mock "pink slip" purportedly given to employees of unionized stores that had been forced to close following unionization. Be-Lo also took "employment actions" against a number of employees who favored unionization of the company.

The Union lost the March 21 election 377 to 220. The remaining 159 of the 756 total eligible voters either did not vote or had their nondeterminative ballots contested.

Following the election, the Union picketed several Be-Lo locations. Be-Lo responded by seeking five separate injunctions to exclude the picketers from its premises under the company's no-solicitation policy. In all five cases, the courts of the Commonwealth of Virginia granted Be-Lo's requested injunctions.

Following the filing of charges by the Union and the filing of complaints by the NLRB Regional Director against Be-Lo alleging violations of various provisions of the National Labor Relations Act, a hearing was held before an administrative law judge. The ALJ found that, overall, Be-Lo's campaign was conducted in accordance with the Act. See J.A. Vol. I, at 360. The ALJ specifically rejected the NLRB General Counsel's claims that Be-Lo's pink slip flyer and other antiunion campaign messages violated section 8(a)(1), and that Be-Lo was discriminatorily enforcing its no-solicitation policy. The ALJ held, however, that a number of statements made to individual employees by certain of Be-Lo's store managers violated section 8(a)(1), and that sixteen individual employment actions, of which thirteen were various forms of discharges, taken by Be-Lo during the election campaign violated section 8(a)(3). On the basis of these violations, the ALJ issued a Gissel mandatory bargaining order.

On appeal from the ALJ's decision, the Board reversed two of Be-Lo's employee-specific section 8(a)(3) discriminatory discharge violations and affirmed eleven others, and affirmed the ALJ's findings of employee-specific section 8(a)(1) violations. The Board also held, however, contrary to the ALJ, that Be-Lo threatened its employees with job loss in violation of section 8(a)(1) by distributing the pink slip flyer and by denying Union picketers access to the sidewalks and parking lots at the specified Be-Lo Stores following the election. See J.A. Vol. I, at 341, 348-50. Based on these violations, the Board affirmed the ALJ's mandatory bargaining order.

II.

" '[A]n election, not a bargaining order, remains the traditional, as well as preferred, method' for determining the employee's bargaining agent." N.L.R.B. v. So-Lo Foods, Inc., 985 F.2d 123, 126 (4th Cir.1992) (quoting Appletree Chevrolet I, 608 F.2d at 996). While we accord the Board respect as to its choice of remedies because of its presumed expertise, see So-Lo Foods, 985 F.2d at 126 (citing Gissel, 395 U.S. at 612 n. 32, 89 S.Ct. at 1939 n. 32), we "exercise less deference" and require scrupulous specificity from the Board when it issues mandatory bargaining orders on the authority of NLRB v. Gissel Packing. See N.L.R.B. v. Rexair, Inc., 646 F.2d 249, 250 (6th Cir.1981) (courts closely scrutinize the Board "when it has imposed the very strong remedy of issuing a bargaining order without holding a new election"). A Gissel order "is not a snake-oil cure for whatever ails the workplace; it is an extreme remedy that must be applied with commensurate care." Skyline Distributors v. N.L.R.B., 99 F.3d 403, 410 (D.C.Cir.1996) (internal quotation marks omitted).

Gissel orders may enter in essentially two types of cases--so-called Category I cases, where "exceptional," "outrageous," and "pervasive" unfair labor practices have occurred and the coercive effects of such practices "cannot be eliminated by the application

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of traditional remedies," Gissel, 395 U.S. at 613-14, 89 S.Ct. at 1940, and, in less extraordinary cases (Category II), where the Board has found"(1) that the Union...

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