Certiorari dismissed, September 16, 2010
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NARRICOT INDUSTRIES, L.P.,
Petitioner,
v.
NATIONAL LABOR RELATIONS
BOARD,
No. 09-1164
Respondent.
SHIRLEY MAE LEWIS; HENRY
VAUGHAN,
Intervenors.
NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
v.
NARRICOT INDUSTRIES, L.P.,
No. 09-1280
Respondent.
SHIRLEY MAE LEWIS; HENRY
VAUGHAN,
Intervenors.
2 NARRICOT INDUSTRIES v. NLRB
On Petition for Review and Cross-application for
Enforcement of an Order of the
National Labor Relations Board.
(11-CA-21827; 11-CA-21828; 11-CA-21856)
Argued: September 23, 2009
Decided: November 20, 2009
Before KING and AGEE, Circuit Judges, and James P.
JONES, Chief United States District Judge for the Western
District of Virginia, sitting by designation.
Petition for review denied and cross-application for enforce-
ment granted by published opinion. Judge King wrote the
opinion, in which Judge Agee and Judge Jones joined.
COUNSEL
ARGUED: James Marion Powell, WOMBLE, CARLYLE,
SANDRIDGE & RICE, PLLC, Greensboro, North Carolina,
for Narricot Industries, L.P. William L. Messenger,
NATIONAL RIGHT TO WORK LEGAL FOUNDATION,
Springfield, Virginia, for Intervenors. Kellie Isbell,
NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for the National Labor Relations Board. ON BRIEF: J.
Mark Sampson, WOMBLE, CARLYLE, SANDRIDGE &
RICE, PLLC, Greensboro, North Carolina, for Narricot Indus-
tries, L.P. Ronald Meisburg, General Counsel, John E. Hig-
gins, Jr., Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, Meredith L. Jason, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for the National Labor Relations Board.
NARRICOT INDUSTRIES v. NLRB 3
OPINION
KING, Circuit Judge:
Narricot Industries, L.P. ("Narricot"), petitions this Court
for review of a Decision and Order entered against it by the
National Labor Relations Board (the "Board"). See Narricot
Indus., L.P., 353 N.L.R.B. No. 82 (Jan. 30, 2009) (the "Board
Decision"). The Board Decision affirmed, with modification,
the rulings made by an administrative law judge (the "ALJ")
in a decision (the "ALJ Decision") that is attached to the
Board Decision. The Board has cross-applied in this Court for
enforcement of the Board Decision. This matter presents two
issues for our consideration: (1) whether the Board Decision
was properly issued by a two-member quorum and, if so, (2)
whether the Board Decision deserves enforcement on the mer-
its. Because, as explained below, we answer both of those
questions in the affirmative, we deny Narricot’s petition for
review and grant the Board’s cross-application for enforce-
ment.
I.
A.
Narricot, a Georgia corporation, is engaged in the business
of manufacturing and dyeing narrow textile fabrics used to
construct vehicle seatbelts.1 Narricot has maintained a manu-
facturing facility in Boykins, Virginia, since the early 1960s,
and the United Brotherhood of Carpenters and Joiners of
America, Carpenters Industrial Council, Local No. 2316 (the
"Union"), has represented the production and maintenance
employees at the Boykins facility since 1976. The most recent
collective bargaining agreement ("CBA") covering the
Boykins bargaining unit employees was executed in February
1
The facts spelled out herein are largely drawn from the Board Decision
and the attached ALJ Decision.
4 NARRICOT INDUSTRIES v. NLRB
2005 and remained in effect until October 2, 2007. By agree-
ment of the Union and Narricot, the Union’s representation of
the production and maintenance employees was extended to
also cover employees who work at Narricot’s satellite facility
in Murfreesboro, North Carolina. Although the most recent
CBA did not provide for a wage increase, it provided for a
"double-time" overtime premium for working in excess of
forty-eight hours in a week.
The International Textile Group ("ITG"), a textile group
that owns various (mostly nonunion) textile plants throughout
the world, acquired the Boykins and Murfreesboro facilities in
early 2007. After learning of the acquisition, the Union met
with ITG representatives. By letter dated July 20, 2007, the
Union notified Narricot that it desired to negotiate a new or
modified CBA and proposed dates for the parties’ negotia-
tions. Bargaining sessions were conducted on July 30, August
28, September 19 and 20, and September 26, 2007. Union
representative Jason Weitzel believed, based on the progress
of the negotiations, that the parties could have reached an
agreement during the next scheduled bargaining session on
October 1, 2007. That session never occurred, however, due
to Narricot’s withdrawal of recognition from the Union on
September 29, 2007, effective October 2, 2007 (the termina-
tion date of the parties’ last CBA).
Narricot predicated the withdrawal of recognition on its
receipt of a decertification petition signed by a majority of
bargaining unit employees. As of October 1, 2007, there were
approximately 329 bargaining unit employees — about 15 at
the Murfreesboro facility, and the rest at the Boykins facility.
The decertification petition was signed by 212, or 64%, of the
bargaining unit employees. Following its withdrawal of rec-
ognition of the Union, Narricot made a number of "unilateral"
changes, that is, it did not negotiate or bargain with the Union
prior to making them. On November 11, 2007, Narricot elimi-
nated the "double-time" overtime premium provided for in the
last CBA and implemented the first employee wage increase
NARRICOT INDUSTRIES v. NLRB 5
in four years. In addition, effective January 1, 2008, Narricot
made changes to the fringe benefit programs for bargaining
unit employees.
B.
The Union filed various unfair labor practice charges
against Narricot in October 2007 and January 2008, and the
Board issued a consolidated complaint and notice of hearing
in February 2008. The consolidated complaint alleged the fol-
lowing: that Narricot violated § 8(a)(1) of the National Labor
Relations Act (the "Act"), 29 U.S.C. § 158(a)(1), by promis-
ing employees increased benefits if they removed the Union
as their bargaining representative; that Narricot further contra-
vened § 8(a)(1) by soliciting employees to sign the decertifi-
cation petition, by providing unlawful assistance to employees
in the circulation of the petition, and by soliciting employees
to separately withdraw from Union membership and revoke
dues checkoff authorizations; and that Narricot violated
§ 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), by withdrawing
recognition from the Union and by thereafter unilaterally
implementing changes in wages, benefits, and other condi-
tions of employment for the bargaining unit employees.
In late February 2008, the ALJ conducted a three-day trial
on the consolidated complaint. By the ALJ Decision of May
6, 2008, the ALJ concluded that Narricot had engaged in mul-
tiple unfair labor practices, and recommended an Order
requiring Narricot to, inter alia, cease and desist from such
practices (including its refusal to recognize and bargain with
the Union) and to rescind all unilateral changes to unit
employees’ wages and other conditions of employment. Nar-
ricot filed exceptions to the ALJ Decision, and the parties
submitted briefs to the Board.
By the Board Decision of January 30, 2009, the Board, act-
ing through a two-member quorum, affirmed, with modifica-
6 NARRICOT INDUSTRIES v. NLRB
tion, the ALJ Decision, and it adopted, also with modification,
the recommended Order. The Board explained that it
has considered the decision and the record in light of
the exceptions and briefs and has decided to affirm
the judge’s rulings, findings, and conclusions, as
modified herein, and to adopt the recommended
Order as modified. As discussed below, we agree
with the judge that [Narricot] violated Section
8(a)(5) of the Act by withdrawing recognition from
the Union and that an affirmative bargaining order is
the appropriate remedy for this violation.
Board Decision 1 (footnotes omitted). The Board also specifi-
cally affirmed the ALJ’s ruling that Narricot contravened
§ 8(a)(1) "by soliciting employees to resign their union mem-
bership and to revoke their dues checkoff authorizations." Id.
at 1 n.4. Narricot subsequently petitioned this Court for
review of the Board Decision, and the Board cross-applied for
enforcement thereof. We then granted a motion to intervene
made by Shirley Mae Lewis and Henry Vaughan (the "Inter-
venors"), bargaining unit employees who had supported the
decertification petition effort. We possess jurisdiction pursu-
ant to § 10(e) and (f) of the Act, 29 U.S.C. § 160(e)-(f).
II.
A.
The first question before us is whether the Board Decision
was properly issued by a two-member quorum. As explained
in the Board Decision,
[e]ffective midnight December 28, 2007, Members
Liebman, Schaumber, Kirsanow, and Walsh dele-
gated to Members Liebman, Schaumber, and Kirsa-
now, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms
NARRICOT INDUSTRIES v. NLRB 7
of Members Kirsanow and Walsh on December 31,
2007. Pursuant to this delegation, Chairman Lieb-
man and Member Schaumber constitute a quorum of
the three-member group. As a quorum, they have the
authority to issue decisions and orders in unfair labor
practice and representation cases. See Sec. 3(b) of
the Act.
Board Decision 1 n.2.2 The quorum question is one of statu-
tory interpretation of § 3(b) of the Act, 29 U.S.C. § 153(b). In
reviewing an agency’s interpretation of a statute, we first
determine whether the statute is ambiguous or, instead,
whether "Congress has directly spoken to the precise question
at issue." Snell Island SNF LLC v. NLRB, 568 F.3d 410, 415
(2d Cir. 2009) (citing Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837 (1984)). Accordingly, we
begin our analysis with the text of the statute.
Under § 3(a) of the Act, the Board consists of five mem-
bers, who serve staggered, five-year terms. See 29 U.S.C.
§ 153(a). Section 3(b) provides that
[t]he Board is authorized to delegate to any group of
three or more members any or all of the powers
which it may itself exercise. . . . A vacancy in the
Board shall not impair the right of the remaining
members to exercise all of the powers of the Board,
and three members of the Board shall, at all times,
constitute a quorum of the Board, except that two
members shall constitute a quorum of any group des-
ignated pursuant to the first sentence hereof.
Id. § 153(b). Thus, § 3(b) contains three provisions that are
pertinent here: (1) a "delegation" provision, allowing the
2
Since January 1, 2008, the same two-member quorum has issued more
than 400 decisions, as well as numerous unpublished orders, in unfair
labor practice and representation cases.
8 NARRICOT INDUSTRIES v. NLRB
Board to delegate "any or all" of its powers to a three-member
group; (2) a "vacancy" provision, providing that a vacancy in
the Board "shall not impair" the authority of the remaining
Board members to act; and (3) a "quorum" provision, provid-
ing that three members constitute a quorum of the Board, but
with an exception providing that two Board members consti-
tute a quorum of any group designated pursuant to the "dele-
gation" provision.
In this case, four members of the Board delegated all of the
Board’s authority, consistent with § 3(b)’s "delegation" provi-
sion, to a three-member group in December 2007. When the
term of one of those three members expired, the remaining
two members constituted a quorum of the three-member
group, empowered to act with all of the Board’s powers in
light of the "vacancy" and "quorum" provisions. Under the
plain and unambiguous text of § 3(b), therefore, the desig-
nated three-member group was empowered to act with a two-
member quorum. Two of our sister courts of appeals have
recently reached the same conclusion, as did the Department
of Justice’s Office of Legal Counsel in a written opinion on
which the Board relied. See New Process Steel, L.P. v. NLRB,
564 F.3d 840, 846 (7th Cir. 2009) ("The plain meaning of the
statute . . . supports the NLRB’s delegation procedure."); Ne.
Land Servs., Ltd. v. NLRB, 560 F.3d 36, 41 (1st Cir. 2009);
Quorum Requirements, Memorandum from M. Edward Whe-
lan III, Principal Deputy Assistant Attorney Gen., Office of
Legal Counsel (Mar. 4, 2003), available at 2003 WL
24166831.
The D.C. Circuit has reached a contrary conclusion, read-
ing § 3(b) as creating distinct quorum requirements for the
Board and designated three-member groups. See Laurel Baye
Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 472-
73 (D.C. Cir. 2009). That court thus concluded that the phrase
"except that" is "present in the statute only to indicate that the
delegee group’s ability to act is measured by a different
numerical value." Id. at 472. In the court’s view, the Board
NARRICOT INDUSTRIES v. NLRB 9
quorum requirement of three members "must be satisfied ‘at
all times,’" regardless of whether the Board’s authority is del-
egated to a group of its members. Id. (quoting 29 U.S.C.
§ 153(b)). We disagree with this view, concluding that it is
based on an overly narrow construction of the modifying
phrase that directly follows the three-member quorum
requirement: "except that two members shall constitute a quo-
rum of any group designated pursuant to [the delegation pro-
vision]." 29 U.S.C. § 153(b) (emphasis added). The statutory
phrase "except that" ordinarily introduces an exception. Had
Congress desired to write the statute as the D.C. Circuit reads
it, it would have simply omitted the words "except that" from
§ 3(b). The statute would then contain two independent quo-
rum clauses, one applicable to the Board and the other to
three-member groups. As it is, however, § 3(b) contains a
quorum requirement applicable "at all times," except where
the Board has delegated its authority to a three-member
group. Because the Board made such a delegation in this case,
we see the D.C. Circuit’s reading of the statute as unpersuasive.3
We also reject Narricot’s contention that "the ‘group of
3
The Second Circuit recently concluded, based on the difference in
opinion among the courts of appeals, that § 3(b) "is ambiguous regarding
the enduring or residual powers of an NLRB panel once the Board has lost
a quorum." Snell Island, 568 F.3d at 420. Concluding that neither the can-
ons of statutory construction nor the legislative history resolved the
ambiguity, the court applied Chevron deference to the Board’s interpreta-
tion of § 3(b) and determined that it was reasonable. See id. at 423-24.
Accordingly, the Second Circuit "h[e]ld that the NLRB panel in this case
was a lawfully convened panel of three members," which "continued to
operate in accordance with section 3(b) of the Act after one of its members
ceased to serve on the Board and even though the Board itself lost a quo-
rum." Id. at 424. Because we, like the First and Seventh Circuits, conclude
that the statute is unambiguous, we need not determine the level of defer-
ence that should be accorded to the Board’s interpretation of the statute.
Finally, we note that the Solicitor General has recently petitioned the
Supreme Court for certiorari in the D.C. Circuit’s Laurel Baye case, and
did not oppose the employer’s petition for certiorari in the Seventh Cir-
cuit’s New Process Steel case.
10 NARRICOT INDUSTRIES v. NLRB
three’ created by the Board in late December 2007 automati-
cally ceased to exist" — and thus "could not transact business
through a purported two-member quorum" — "once Member
Kirsanow . . . ceased being a member of the Board itself."
Reply Br. of Pet’r 26. Narricot’s theory is inconsistent with
two provisions of § 3(b). First, Narricot’s reading of § 3(b)
would turn the two-member quorum provision on its head. If
the loss of one member of a three-member group automati-
cally caused the group to cease to exist, then a two-member
quorum would never suffice. The statute, however, expressly
provides for a three-member designated group to act with
only two members. See Photo-Sonics, Inc. v. NLRB, 678 F.2d
121, 122-23 (9th Cir. 1982) (deeming decision by two-
member quorum to be binding where one member of three-
member group resigned on day of Board decision). Moreover,
Narricot’s theory is entirely inconsistent with § 3(b)’s "va-
cancy" provision, which specifies that a "vacancy in the
Board" — or, necessarily, a three-member group acting with
the full powers of the Board — "shall not impair the right of
the remaining members to exercise all of the powers of the
Board." 29 U.S.C. § 153(b). In sum, we are satisfied that, in
the underlying proceedings, the remaining two members of
the three-member group designated by the Board were
empowered to act with the full powers of the Board.
B.
The second question before us is whether the Board Deci-
sion should be enforced on the merits. Importantly, "[t]he
function of striking [a] balance [between the conflicting inter-
ests of employers and employees] to effectuate national labor
policy is often a difficult and delicate responsibility, which
the Congress committed primarily to the [Board], subject to
limited judicial review." NLRB v. Truck Drivers Local Union
No. 449, 353 U.S. 87, 96 (1957). In enforcement proceedings
such as this, we are always obliged to defer to the Board
"where it has chosen ‘between two fairly conflicting views,
even [if we] would justifiably have made a different choice
NARRICOT INDUSTRIES v. NLRB 11
had the matter been before [us] de novo.’" Smithfield Packing
Co. v. NLRB, 510 F.3d 507, 515 (4th Cir. 2007) (quoting Uni-
versal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
We have recognized that the Board’s legal rulings are entitled
to deference when they are "rational and consistent" with the
Act and the Board’s own precedent. NLRB v. Air Contact
Transp., Inc., 403 F.3d 206, 210 (4th Cir. 2005). Finally, we
treat the "[f]indings of fact made by an ALJ and affirmed by
the Board [as] conclusive, so long as they are ‘supported by
substantial evidence on the record considered as a whole.’"
Anheuser-Busch, Inc. v. NLRB, 338 F.3d 267, 273-74 (4th Cir.
2003) (quoting 29 U.S.C. § 160(e)). And we have character-
ized "substantial evidence" as relevant evidence that a reason-
able mind might accept as adequate to support a conclusion.
See NLRB v. Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 1262,
1269 (4th Cir. 1994).
Narricot’s petition for review and the Board’s cross-
application for enforcement present four issues: (1) whether
the Board properly concluded that Narricot provided unlawful
assistance to the decertification effort; (2) whether the Board
adequately analyzed the causal connection between Narricot’s
unlawful assistance and its withdrawal of Union recognition;
(3) whether the Board rightly determined that Narricot
improperly solicited employees to resign from the Union; and
(4) whether the remedy ordered by the Board was proper. We
assess these issues in turn.
1.
First, the Board determined that Narricot’s withdrawal of
recognition from the Union contravened § 8(a)(5) of the Act
because Narricot had engaged in unfair labor practices prohib-
ited by § 8(a)(1).4 As the Board recognized in these proceed-
4
It is an unfair labor practice under § 8(a)(1) of the Act for an employer
"to interfere with, restrain, or coerce employees in the exercise" of their
rights to organize and collectively bargain, and, under § 8(a)(5), for an
employer "to refuse to bargain collectively with the representatives of his
employees." 29 U.S.C. § 158(a)(1), (5).
12 NARRICOT INDUSTRIES v. NLRB
ings, an employer can justify its withdrawal of recognition
from an incumbent union if it proves "‘by a preponderance of
the evidence that the union had, in fact, lost majority support
at the time the employer withdrew recognition.’" Board Deci-
sion 1 (quoting Levitz Furniture Co., 333 N.L.R.B. 717, 725
(2001)). "Here," the Board observed, Narricot "relied solely
on the decertification petition as objective proof of the
Union’s actual loss of majority support." Id. However, "when
an employer engages in conduct designed to undermine sup-
port for the union and to impermissibly assist a decertification
effort," the decertification petition is considered "tainted and
will not provide the employer with a basis for withdrawing
recognition." Id. (citing SFO Good-Nite Inn, LLC, 352
N.L.R.B. 268, 270-71 (2008)).
As the Board characterized the ALJ Decision, "[t]he judge
found that [Narricot] provided unlawful assistance to the
decertification effort in violation of Section 8(a)(1) of the
Act," which "tainted the petition, invalidating it as evidence
of the Union’s loss of majority." Board Decision 1. The ALJ
therefore "concluded that [Narricot] violated Section 8(a)(5)
of the Act by withdrawing recognition based on the unlaw-
fully tainted petition." Id. The Board agreed "with this conclu-
sion based on the following evidence of unlawful assistance
in the petition effort." Id.
As detailed by the judge, both Human Resource
Manager Kris Potter and Supervisor Eric Hayes
actively participated in the decertification process.
After employee Henry Vaughan asked for informa-
tion about how to oust the Union, Potter prepared a
decertification petition, gave it to Vaughan, and told
him that about 220 signatures were needed. Potter
also gave copies of the petition to employee Shirley
Lewis and to intern Anja Baumann, directing them
to return the signed petitions to him. In addition,
after giving Baumann a list of unit employees, Potter
told her that about 200 signatures were needed on
NARRICOT INDUSTRIES v. NLRB 13
the petition. At the end of each day that she solicited
signatures, Baumann returned copies of the petition
to Potter pursuant to his instructions. According to
Baumann, Potter would express approval and tell her
that he needed more signatures. Finally, Supervisor
Hayes told employee Willie Mitchell that employees
would receive a pay raise if the Union were decerti-
fied and that Mitchell could sign a copy of the peti-
tion on the desk in Hayes’ office.
Id. at 1-2 (footnotes omitted). According to the Board, "[t]his
conduct is sufficient proof that [Narricot] officials provided
more than the permissible ‘ministerial aid’ in the initiation
and circulation of the decertification petition." Id. at 2 (foot-
note omitted).
In these circumstances, the Board found it unnecessary to
reach certain additional findings made by the ALJ. The
Board, for example, found no need to rely on the ALJ’s find-
ing that misspellings on the decertification petition indicated
that Narricot had attempted to disguise its role in the decertifi-
cation effort, or to assess the ALJ’s finding that Baumann was
acting as Narricot’s agent in the decertification effort. See
Board Decision 1 n.6, 2 n.9. Additionally, the Board specifi-
cally rejected certain findings made by the ALJ, including that
Potter made unlawful wage- and benefit-related promises to
Baumann and that supervisor Tim Beals unlawfully failed to
remove a copy of the petition from the employee break room.
Aside from these specific modifications, however, the Board
adopted the remainder of the ALJ findings. See id. at 1 (speci-
fying that the Board "decided to affirm the [ALJ’s] rulings,
findings, and conclusions, as modified herein, and to adopt
the recommended Order as modified") (footnote omitted)).
Narricot’s challenge to the Board Decision is predicated, in
part, on its contention that the ALJ findings adopted by the
Board are insufficient to establish that Narricot went beyond
providing "ministerial aid" to the decertification effort. See E.
14 NARRICOT INDUSTRIES v. NLRB
States Optical Co., 275 N.L.R.B. 371, 372 (1985) ("[W]hile
an employer does not violate the Act by rendering what has
been termed ‘ministerial aid,’ its actions must occur in a situa-
tional context free of coercive conduct." (footnote and internal
quotation marks omitted)).5 Whether conduct constitutes more
than "ministerial aid" turns on whether "the preparation, cir-
culation, and signing of the petition constituted the free and
uncoerced act of the employees concerned." Mickey’s Linen
& Towel Supply, Inc., 349 N.L.R.B. 790, 791 (2007) (internal
quotation marks omitted). Whether the employer’s conduct
was actually coercive, however, is immaterial, provided that
the particular conduct would have a "reasonable tendency in
the totality of the circumstances to intimidate." NLRB v.
Transpersonnel, Inc., 349 F.3d 175, 180 (4th Cir. 2003)
(internal quotation marks omitted). And whether "particular
conduct tends to coerce or intimidate is a question essentially
left to the specialized experience of the Board, and we must
show respect for the Board’s findings." Id.
We cannot say, in light of the record as a whole, that the
Board lacked substantial evidence to find that Narricot’s con-
5
Narricot and the Intervenors also base their challenge to the Board
Decision on the broader contention that the Board’s "ministerial aid" stan-
dard is too restrictive. They argue that some conduct that rises above the
level of "ministerial aid" may not constitute an unfair labor practice, and
that any contrary interpretation would trample on the employer free speech
rights that are codified in § 8(c) of the Act, 29 U.S.C. § 158(c), and which
the Supreme Court recently discussed in Chamber of Commerce v. Brown,
128 S. Ct. 2408, 2413-18 (2008). We are not positioned nor inclined to
take such a broad stride across several decades of settled precedent prohib-
iting employers from becoming overly entangled with union decertifica-
tion drives. First, the Board’s legal determinations are entitled to
deference, and are reviewed by this Court only to ensure that they are "ra-
tional and consistent" with the Act. See Anheuser-Busch, Inc. v. NLRB,
338 F.3d 267, 273 (4th Cir. 2003). Second, Narricot and the Intervenors
substantially understate the role of the proviso in § 8(c) explaining that
employer speech is protected only so long as it is noncoercive, i.e., lacking
any "threat of reprisal or force or promise of benefit." 29 U.S.C. § 158(c);
see Brown, 128 S. Ct. at 2413.
NARRICOT INDUSTRIES v. NLRB 15
duct in this case crossed the line beyond mere ministerial
assistance. Narricot contends that both this Court and the
Board have recognized that "[m]erely providing accurate
information upon request of the employee, even for sample
language, does not constitute conduct that would tend to
coerce or intimidate." Transpersonnel, 349 F.3d at 184; see
Bridgestone/Firestone, Inc., 337 N.L.R.B. 133 (2001) (decid-
ing that employer’s drafting of decertification petition consti-
tuted lawful ministerial aid).
The Board Decision, however, reflects that it adopted find-
ings by the ALJ that Narricot engaged in conduct extending
beyond mere ministerial aid. For example, the Board adopted
the ALJ’s finding that "both Human Resource Manager Kris
Potter and Supervisor Eric Hayes actively participated in the
decertification process." Board Decision 1. More specifically,
"[a]fter employee Henry Vaughn asked for information about
how to oust the Union, Potter prepared a decertification peti-
tion, gave it to Vaughn, and told him that about 220 signa-
tures were needed." Id. (footnote omitted). The Board also
found that Potter "gave copies of the petition to employee
Shirley Lewis and to intern Anja Baumann, directing them to
return the signed petitions to him." Id. And, without being
asked to do so, Potter gave Baumann a list of unit employees,
and told her that about 200 signatures were needed on the
petition. At the end of each day that Baumann solicited signa-
tures, she returned copies of the petition to Potter pursuant to
his instructions, at which point Potter expressed his approval
and told Baumann that more signatures were needed. In addi-
tion, the Board observed that "Supervisor Hayes told
employee Willie Mitchell that employees would receive a pay
raise if the Union were decertified and that Mitchell could
sign a copy of the petition on the desk in Hayes’ office." Id.
at 2.6
6
Narricot urges us to discredit this finding because, contrary to the
ALJ’s credibility determination, Mitchell was not credible. The Board
16 NARRICOT INDUSTRIES v. NLRB
Moreover, the ALJ’s findings of fact — which were
appended to the Board Decision and expressly affirmed by the
Board unless specifically modified, see Board Decision 1 —
provide other specific details of Potter’s conduct. For
instance, after Baumann signed the petition, Vaughan sug-
gested that Baumann speak with Potter if she were interested
in helping collect signatures. Baumann then met with Potter,
advised him she had just signed the petition, and told him that
she was interested in learning about what she had signed.
(Baumann was from Germany and did not understand how
unions function in the United States.) Potter responded that
there was a union at the facility and that it cost Narricot
money, he gave Baumann a blank copy of the petition and a
list of employee names, and he told Baumann that the CBA
was expiring in October and about 200 signatures were
needed on the petition. Baumann then solicited employee sig-
natures before, during, and after her work hours, and was paid
overtime for time spent doing so. When one employee asked
Baumann how the employee could remove her signature from
the petition, Baumann advised the employee that she would
have to talk with Potter because he had the petitions. See
Board Decision 6-7.
The Board relied on this cumulative evidence in ruling that
Narricot’s conduct exceeded mere ministerial aid. See Board
Decision 2 n.7 ("Member Schaumber does not pass on
whether the mere provision of an employee list to facilitate
the collection of signatures on a decertification petition would
constitute unlawful assistance. He finds the violation based on
the cumulative evidence cited above."). Given that the
Board’s ruling was predicated on the combined effect of Nar-
refused to disturb the ALJ’s credibility determination and to credit
Hayes’s testimony over Mitchell’s, see Board Decision 1 n.3, and we are
constrained to do the same, see WXGI, Inc. v. NLRB, 243 F.3d 833, 842
(4th Cir. 2001) (recognizing that this Court will not disturb Board’s credi-
bility findings absent "extraordinary circumstances").
NARRICOT INDUSTRIES v. NLRB 17
ricot’s conduct, we are obliged to examine the record as a
whole. Viewed in that context, the Board Decision is sup-
ported by substantial evidence, and it is rational and consis-
tent with the Act and the Board’s own precedent.
2.
Second, the Board concluded that, because the objective
value of the decertification petition was tainted by Narricot’s
unlawful participation therein, it was "unnecessary to pass on
whether the petition was tainted under the standards set forth
in Master Slack Corp., 271 N.L.R.B. 78, 84 (1984)." Board
Decision 1 n.5 (citing SFO Good-Nite Inn, 352 N.L.R.B. at
271 n.11). In Master Slack, the Board recognized that an
employer cannot rely on a decertification petition if there is
a showing that prior, unremedied unfair labor practices
caused or had a meaningful impact on employee disaffection.
See 271 N.L.R.B. at 84. "In short, there must be a causal rela-
tionship between the unlawful conduct and the [decertifica-
tion] petition . . . ." Id. (outlining four factors for determining
causation).
Narricot contends that the Board adopted an "entirely new
standard" for this case when it ignored its "longstanding
requirement of a causal connection" between the unfair labor
practices committed by the employer and the union decertifi-
cation effort. Br. of Pet’r 28. The Board asserts, however, that
it was not, in these circumstances, required to analyze causa-
tion under Master Slack, because that decision only applies
"to cases that do not primarily involve the employer’s direct
assistance or participation in the decertification effort." Br. of
Respondent 58-59 (citing cases).
In Master Slack, the Board established a rule intended to
ensure a causal link between decertification efforts and other
unfair labor practices distinct from any unlawful assistance by
the employer in the actual decertification petition. Compare
SFO Good-Nite Inn, 352 N.L.R.B. at 271 n. 11 (bypassing
18 NARRICOT INDUSTRIES v. NLRB
causation analysis where employer engaged in unlawful con-
duct connected with decertification effort), with NLRB v. Wil-
liams Enters., 50 F.3d 1280, 1288 (4th Cir. 1995) (applying
Master Slack causation test to determine if decertification
decision was tainted by "antecedent unlawful conduct").
Thus, where, as here, the unfair labor practices identified by
the Board are directly related to the decertification effort, the
Board need not make a specific causation finding under the
four-factor Master Slack test. See Glasser v. Heartland-Univ.
of Livonia, Mich., LLC, 632 F. Supp. 2d 659, 671 (E.D. Mich.
2009) (explaining Board’s precedent that SFO Good-Nite Inn
"stands independent from Master Slack" and its causation
test). Again, we must uphold the Board’s legal rulings when
they are rational and consistent with the Act. Put simply, Nar-
ricot has not demonstrated that the Board’s analysis failed to
satisfy that deferential standard. Thus, the Board did not err
in analyzing the connection between Narricot’s unfair labor
practices and the decertification petition underlying its with-
drawal of recognition from the Union.7
3.
Third, the Board also affirmed the ALJ’s ruling that Narri-
cot contravened § 8(a)(1) when it solicited employees to
resign their Union memberships and to revoke their dues
checkoff authorizations. See Board Decision 1 n.4. Narricot’s
actions were prompted by inquiries from several employees as
to how they could revoke their Union membership. In addi-
tion to preparing revocation letters for those employees, Nar-
ricot also presented the letters to the employees in such a way
7
Narricot also suggests that the Board erred in conducting its causation
analysis under Master Slack because it ignored evidence that, according
to Narricot, proves that employees were dissatisfied with the Union before
the decertification petition was circulated. Because the Board did not err
in not applying the Master Slack causation test, this contention lacks
merit. Moreover, the Board observed that it "has not found that this type
of evidence, even if considered collectively, would be sufficient as objec-
tive proof of a union’s loss of majority support." Board Decision 2.
NARRICOT INDUSTRIES v. NLRB 19
that would have tended to make them feel coerced to sign, and
then mailed the letters to the Union by certified mail at its
own expense. See id. at 10-11. Thus, the Board concluded that
Narricot’s conduct in this regard "went well beyond" "merely
preparing [revocation] letters" for the employees to sign.
Board Decision 1 n.4.8 Narricot primarily contends that the
membership resignations were initiated by the employees, and
that none of the employees were actually coerced into resign-
ing their union membership. Once again, however, the rele-
vant inquiry is not actual coercion, but whether the
employer’s conduct would have had a reasonable tendency to
intimidate in light of the totality of the circumstances. See
Transpersonnel, 349 F.3d at 184. Given the Board’s finding
that Narricot’s conduct would have tended to coerce the
employees to sign the resignation letters, we have no basis for
disturbing the Board Decision on this issue.
4.
Finally, the Board deemed an affirmative bargaining order
— with an implicit bar on further decertification efforts for a
reasonable period of time — to be the appropriate remedy.
Narricot asserts, however, that the Board’s order, "with its
double-edged sword of a decertification bar, trounces upon
[employees’] § 7 rights and forces employees to be repre-
sented by the Carpenters Union for a reasonable period of
time — even if the employees no longer want to be repre-
sented by the Carpenters Union." Br. of Pet’r 50. We have
previously recognized, however, that the Board possesses
"broad discretion to choose a remedy." Williams Enters., 50
F.3d at 1289. Thus, "[w]e must enforce its choice unless it can
8
The Board declined to reach the issue of whether merely preparing
such revocation letters constitutes unlawful assistance, see Board Decision
at 1 n.4 ("Member Schaumber does not pass on whether merely preparing
letters revoking dues-deduction authorization on behalf of employees
would be unlawful."), observing that Narricot "went well beyond such
assistance." Id.
20 NARRICOT INDUSTRIES v. NLRB
be shown that the order is a patent attempt to achieve ends
other than those which can fairly be said to effectuate the pol-
icies of the [Act]." Id. (internal quotation marks omitted). We
have also recognized that an affirmative bargaining order is
often a necessary component of the Board’s chosen remedy if
the parties are to be returned to the status quo ante. See id. at
1289-90.
In these proceedings, the Board observed that the D.C. Cir-
cuit "has required the Board to justify, on the facts of each
case, the imposition of an affirmative bargaining order."
Board Decision 2. The D.C. Circuit has required an affirma-
tive bargaining order to be justified by a reasoned analysis
and balancing of three factors: (1) the employees’ § 7 rights;
(2) whether other purposes of the Act override the rights of
employees to choose their bargaining representatives; and (3)
whether alternative remedies are adequate to remedy the vio-
lations of the Act. See Vincent Indus. Plastics, Inc. v. NLRB,
209 F.3d 727, 738 (D.C. Cir. 2000).
With respect to the first Vincent Industrial factor, the Board
explained that Narricot
committed unfair labor practices both before and
after its unlawful withdrawal of recognition that
manifested its disregard for employees’ Section 7
rights. Prior to the withdrawal of recognition, [Narri-
cot] solicited employees to withdraw from union
membership and to revoke their dues checkoff, it
provided unlawful assistance in the initiation and cir-
culation of the decertification petition, and it prom-
ised a wage increase if the Union were decertified.
After [Narricot] withdrew recognition, it followed
through on the unlawful promise by making unilat-
eral changes in wages, the employees’ 401(k) plan,
their health and welfare plans, and holidays. Under
these circumstances, it is only by restoring the status
quo ante and requiring [Narricot] to bargain with the
NARRICOT INDUSTRIES v. NLRB 21
Union for a reasonable period of time that employ-
ees’ Section 7 right to union representation can be
vindicated. This will give employees an opportunity
to fairly assess the Union’s effectiveness as a bar-
gaining representative and determine whether con-
tinued representation by the Union is in their best
interests.
Board Decision 3. In assessing the second Vincent Industrial
factor, the Board observed that an affirmative bargaining
order would serve the Act’s purposes "of fostering meaning-
ful collective bargaining and industrial peace," by removing
Narricot’s "incentive to delay bargaining or to engage in any
other conduct designed to further discourage support for the
Union," "ensur[ing] that the Union will not be pressured, by
the possibility of a decertification petition, to achieve immedi-
ate results at the bargaining table," and "reinstating the Union
to its rightful position as the bargaining representative chosen
by a majority of the employees." Id. Lastly, in considering the
third factor, the Board observed that the only alternative rem-
edy — a cease-and-desist order alone, without a temporary
decertification bar — would be inadequate, "because it would
allow another challenge to the Union’s majority status before
the employees had a reasonable time to regroup and bargain
with [Narricot] through their chosen representative in an
effort to reach a [CBA]," and because it "might very well
allow [Narricot] to profit from its own unlawful conduct." Id.
On balance, the Board concluded "that these circumstances
outweigh the temporary impact the affirmative bargaining
order will have on the rights of employees who oppose con-
tinued union representation." Id.
In view of the Board’s careful justification for its affirma-
tive bargaining order, the deference we are obliged to accord
the Board’s chosen remedy, and our prior approval of the spe-
cific remedy employed here, we are constrained to reject Nar-
ricot’s petition and leave the order undisturbed.
22 NARRICOT INDUSTRIES v. NLRB
III.
Pursuant to the foregoing, we deny Narricot’s petition for
review and grant the Board’s cross-application for enforce-
ment.
PETITION FOR REVIEW DENIED AND
CROSS-APPLICATION FOR ENFORCEMENT GRANTED