Flamingo Hilton-Laughlin v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 1998 Decided July 31, 1998

No. 97-1467

Flamingo Hilton-Laughlin,

Petitioner

v.

National Labor Relations Board,

Respondent

United Steelworkers of America, AFL-CIO CLC,

Intervenor

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Joseph E. Herman argued the cause for the petitioner.
Richard C. Hotvedt entered an appearance.

Robert J. Englehart, Attorney, National Labor Relations
Board, argued the cause for the respondent. Linda Sher,

Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and Frederick C. Havard, Attor-
ney, National Labor Relations Board, were on brief.

Rudolph L. Milasich, Jr. argued the cause for the interve-
nor.

Before: Henderson, Rogers and Garland, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Separate concurring opinion filed by Judge Rogers.

Karen LeCraft Henderson, Circuit Judge: Petitioner
Flamingo Hilton-Laughlin (Flamingo), a subsidiary of Hilton
Gaming Corp., operates a resort hotel and casino in Laughlin,
Nevada. On July 29, 1997 the National Labor Relations
Board (NLRB, Board) issued a Gissel order 1 which directed
Flamingo to bargain with the United Steelworkers of Amer-
ica, AFL-CIO CLC, (Union) as the exclusive bargaining
representative of two units of Flamingo employees, based on
findings that Flamingo had engaged in numerous unfair labor
practices during the Union's unsuccessful organization cam-
paign. Flamingo Hilton-Laughlin, 324 N.L.R.B. No. 14
(1997). Flamingo petitions for review of the Board's decision
on the grounds that (1) the Board failed to adequately justify
issuance of a Gissel bargaining order; (2) some of the unfair
labor practices found by the Board are unsupported by
substantial evidence and (3) Flamingo was denied its due
process right to a neutral decisionmaker. The NLRB has
filed a cross-application for enforcement of its order. For the
reasons and to the extent set out below, we grant in part
Flamingo's petition for review and deny the NLRB's applica-
tion for enforcement of its Gissel order and two of its unfair

__________
1 A Gissel order is one requiring an employer to bargain with a
union and is issued "to remedy violations of section 8(a) of the
National Labor Relations Act ... if the Board finds, on balance,
that the effects of those past practices make a fair election unlike-
ly." Amazing Stores, Inc. v. NLRB, 887 F.2d 328, 329 (D.C. Cir.
1989), cert. denied, 494 U.S. 1029 (1990); see NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969).

labor practice findings. We nonetheless deny review and
grant enforcement of the Board's order with respect to the
remaining unfair labor practices included therein.

I.

In January 1993 the Union began an organizing campaign
at Flamingo's hotel and casino, which, with more than 2,000
employees, is the largest of several gaming establishments in
Laughlin, Nevada. Flamingo hired a labor relations consult-
ing firm and conducted a vigorous counter-campaign. In
March 1993 the Union filed a petition to be certified as
representative of a bargaining unit comprising "[a]ll full-time
and part-time employees in the departments of Housekeep-
ing/Custodial, Food/Beverage, Slots, Coin Room Hotel Ser-
vices/Bellmen, Front Desk, Valet, and Cage." Joint Appendix
4. On June 9, 1993 the NLRB issued a "Decision and
Direction of Election," which excluded slot machine and coin
room employees from the proposed bargaining unit and
scheduled an election among the roughly 1,000 remaining unit
employees for July 6. During the union campaign the Union
had solicited and obtained union authorization cards from a
majority of the hotel unit employees and of the excluded slot
and coin room employees. In the July 6 election, however,
the hotel unit employees rejected union representation by a
vote of 495 to 389. On October 28, 1993 the Union filed an
unfair labor practice charge with the NLRB and, as a result,
on February 25, 1994 the Board's acting regional director
filed a complaint and notice of hearing alleging more than
seventy unfair labor practices.

A 67-day hearing was conducted over the course of one
year and on April 25, 1996 an administrative law judge (ALJ)
issued a decision finding Flamingo had committed more than
forty of the charged unfair labor practices, in violation of
section 8(a)(1) and (3) of the National Labor Relations Act
(Act), 29 U.S.C. ss 158(a)(1) and (3), and ordering Flamingo
to bargain with the Union as the representative of both the
designated unit and a separate unit made up of slot employ-
ees. The ALJ found Flamingo itself violated the Act by

providing various benefits to unit employees during the pre-
election period, including improved health insurance coverage,
increased wages, a more responsive grievance procedure,
higher gratuities for baggage handlers and a seniority-based
scheduling and assignment policy for cocktail servers. The
ALJ further found Flamingo had, during the same period,
unlawfully instituted a new employment application screening
process aimed at weeding out applicants with union connec-
tions. In addition to Flamingo's violations, the ALJ found
that individual Flamingo supervisors had engaged in various
unlawful acts including (1) soliciting complaints from employ-
ees (with at least implied promises to resolve them) (2)
promoting the Culinary Union, a prominent gaming industry
union, over the Union, (3) questioning employees about their
views on unionization, (4) distributing anti-Union buttons, (5)
discouraging display of pro-Union buttons, (6) warning em-
ployees that conditions of employment such as wages, insur-
ance benefits and perquisites (including free parking, food
and uniforms) would worsen if the Union won the election, (7)
suggesting that pro-Union employees would be "blacklisted"
among the other (non-union) casinos in the area and (8)
conducting meetings on the eve of the election at which
Flamingo's new president, William Sherlock, made an anti-
Union video presentation and asked employees for "[a] chance
for management to work hand in hand with [employees] and
no third party to interfere," Flamingo, slip op. at 47.

The ALJ concluded that the unfair labor practices he found
made this a "category II" Gissel case, that is, one of "the less
extraordinary cases marked by less pervasive practices which
nonetheless still have the tendency to undermine majority
strength and impede the election processes,' " Flamingo, slip
op. at 62 (quoting NLRB v. Gissel Packing Co., 395 U.S. 575,
613, 614-15 (1969)),2 based on "considerations [that] include
'the number of employees directly affected by the violation,
the size of the unit, the extent of dissemination among the
work force, and the identity of the perpetrator of the unfair

__________
2 A "category I" Gissel case involves " 'outrageous' and 'pervasive'
unfair labor practices." Gissel, 395 U.S. at 613.

labor practice,' " id. at 62 (quoting FJN Mfg., 305 N.L.R.B.
656, 657 (1991)). Specifically, he determined:

(1) "the number of employees directly affected by the
unfair labor practices was extensive" in that "[t]he health
insurance changes were shown to affect a substantial
percentage of the employees, the same was true of
hourly pay increases made, and the new complaint reso-
lution procedure had no limit at all about employee
eligibility";

(2) the large size of the unit did not weigh against a
bargaining order because "the violations blanketed both
units and did not allow the notion to be present that
many members of the units were simply not aware of the
conduct";

(3) "[t]hese first two factors are largely embodied in
the third factor, because dissemination of conduct
throughout practically the entire work force was both
intended and carried out by the employer" through
"items such as wage and benefit increases of tangible
effect on why employees were attracted to the Union in
the first place, and the inhibiting threat of blacklisting as
sprung on the entire work force by universally distribut-
ed memorandum just before the election"; and

(4) "of great significance to the question, the perpetra-
tor of the major amount of conduct was [director of
human resources John] Kosinski himself" and "[i]t is also
influential that Sherlock was a key perpetrator."

Id. at 62-63. The ALJ also stated: "On a matter separate
from 'pervasiveness' of unfair labor practice conduct, a Gissel
issue is also affected by special considerations such as the
applicant screening also devised by Kosinski," which "tainted
the bargaining units by employment screening in a manner
that cannot be reconstructed," asserting that Flamingo "must
bear the consequence of this conduct, both as to unknown
probabilities yielding a slightly biased work force to the
Union's detriment, and to the possibility that conduct this
devious invites the presumption it could readily recur." Id. at
63. Finally, the ALJ "conclude[d] the possibility of erasing

embedded effects of Respondent's unfair labor practices is so
slight that, on balance, a bargaining order is warranted for
each unit." Id.

In its July 29, 1997 decision the NLRB affirmed the ALJ
except that it (1) reversed the finding that Sherlock's last
minute plea for a "chance" was an unfair labor practice; (2)
rejected the ALJ's "discount[ing] the effects of [the] one-on-
one type threats, solicitation, or interrogation" and (3) de-
clined to "rely on the judge's analysis to the extent that he
imposed a negative connotation on Flamingo's lawful video
presentations." Id. at 1-2.

II.

Flamingo argues strenuously that the Board failed to justi-
fy ordering bargaining as a remedy. We agree.

" '[A] bargaining order is ... an "extreme remedy" that
must be applied with commensurate care.' " Skyline Dis-
tribs. v. NLRB, 99 F.3d 403, 410 (D.C. Cir. 1996) (quoting
Avecor, Inc. v. NLRB, 931 F.2d 924, 938-39 (D.C. Cir. 1991),
cert. denied, 502 U.S. 1048 (1992)) (alteration in Skyline). In
Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1078
(D.C. Cir. 1996), we again explained the circumstances that
warrant a category II Gissel order:

[W]e have insisted, and we continue to insist, that "[b]e-
fore we will enforce a category II order, we must find
that substantial evidence supports three findings," among
them the finding that the possibility of erasing the effects
of past practices and of insuring a fair rerun election by
the use of traditional remedies is slight and that employ-
ee sentiment once expressed in favor of the Union would
be better protected by a bargaining order. Avecor, 931
F.2d at 934 (quoting St. Francis Fed'n of Nurses &
Health Professionals v. NLRB, 729 F.2d 844, 854-55
(D.C. Cir. 1984)).3 We have also emphasized that that

__________
3 The other two required findings are that (1) "the Union, at some
time, must have had majority support within the bargaining unit"
and (2) "the employer's unfair labor practices must have had the

finding must be supported by a reasoned explanation
that will enable the reviewing court to determine from
the Board's opinion (1) that it gave due consideration to
the employees' section 7 rights, which are, after all, one
of the fundamental purposes of the Act, (2) why it
concluded that other purposes must override the rights
of the employees to choose their bargaining representa-
tives and (3) why other remedies, less destructive of
employees' rights, are not adequate. Peoples Gas Sys.,
[Inc. v. NLRB, 629 F.2d 35, 46 (D.C. Cir. 1980)]. See
also Somerset Welding & Steel, Inc. v. NLRB, 987 F.2d
777, 781 (D.C. Cir. 1993) (declining to enforce bargaining
order where "no reasoned justification therefor ap-
pear[ed] in the Board's order").

82 F.3d at 1078 (footnote added). In this case neither the
ALJ nor the Board made a sustainable finding that the
circumstances then existing warranted the "extreme remedy"
ordered.

The "underlying rationale" for issuing a Gissel bargaining
order is "that the employees' wishes are better gauged by an
old card majority than by a new election." Charlotte Amphi-
theater Corp., 82 F.3d at 1078. Nevertheless, because "[cir-
cumstances ... may change during the interval between the
occurrence of the employer's unfair labor practices and the
Board's disposition of a case," there is an "obvious danger
that a bargaining order that is intended to vindicate the
rights of past employees will infringe upon the rights of the
current ones to decide whether they wish to be represented
by a union." Id. "Therefore, we have repeatedly instructed
the Board to determine the appropriateness of a Gissel
bargaining order in light of the circumstances existing at the
time it is entered." Id. (citing Avecor Inc., 931 F.2d at 936-

__________
tendency to undermine majority strength and impede the election
process." Avecor, 931 F.2d at 934. The ALJ made both of these
findings, Flamingo, slip op. at 59, 62-63, and we need not evaluate
their evidentiary support now given our remand for reconsideration
of the likelihood of a fair rerun election in light of post-election
events.

37); Pedro's, Inc. v. NLRB, 652 F.2d 1005, 1012 (D.C. Cir.
1981); Peoples Gas Sys., Inc., 629 F.2d at 45-46 n.18; NLRB
v. Ship Shape Maintenance Co., 474 F.2d 434, 443 (D.C. Cir.
1972)). Yet both the Board and the ALJ ignored substantial
and undisputed changes in the hotel's operation and person-
nel in the years since the election and focused instead on
circumstances as they were in early 1993.

In his remedy discussion, the ALJ, contrary to our prece-
dent, flatly announced: "When considering a bargaining or-
der, the law compels a focus on circumstances existing at the
time unfair labor practices were committed. Thus late spring
1993 is that focus, when diverse unlawful conduct by Respon-
dent of enduring impact on employees occurred." Flamingo,
slip op. at 64. Consistently with his pronouncement, the ALJ
rested the choice of remedy on his evaluation of the alleged
unfair labor practices and their effects during the pre-election
period. See id. at 62-63. In doing so he expressly discount-
ed three factors the court has found crucial to a Gissel
inquiry: passage of time since the practices, turnover of unit
members and change in management. See Charlotte Amphi-
theater Corp., 82 F.3d at 1080 (remanding to Board with
direction to accept evidence from employer "that the passage
of time or a change in circumstances might mitigate the need
for" Gissel order); Avecor, Inc., 931 F.2d at 937 ("[W]e hold
that before issuing a category II bargaining order, the Board
must carefully consider employee turnover."); Somerset, 987
F.2d at 780 (finding no adequate justification for Gissel order
because "the Board did not adequately consider changes in
management and employee turnover at the Company since
the time of the election"); Amazing Stores v. NLRB, 887
F.2d 328, 331 (D.C. Cir. 1989) ("[W]here the practices at issue
are not especially pervasive or permanent in nature, the
Board needs to make more careful determinations respecting
the effect of subsequent employee turnover."), cert. denied,
494 U.S. 1029 (1990); Peoples Gas Sys., Inc. v. NLRB, 629
F.2d 35, 45-46 n.18 (D.C. Cir. 1980) ("This court has already
held that employee turnover, one 'subsequent event,' must be
considered in deciding whether a new election or a bargaining
order is the proper remedy.") (citing Ship Shape Mainte-

nance Co., supra ); Skyline Distribs. v. NLRB, 99 F.3d 403,
412 (D.C. Cir. 1996) (Henderson, J., concurring) ("[T]his court
has 'repeatedly instructed the Board to determine the appro-
priateness of a Gissel bargaining order in light of the circum-
stances existing at the time it is entered' to take account of,
inter alia, the passage of time, employee turnover and sensi-
tized management.") (citations omitted).4

First, regarding the passage of time, the ALJ observed
that "a span of time is always present between unfair labor
practices that arguably have such lingering effects as to make
a second election unfeasible and the point after contested
proceedings when a bargaining order is proposed" and, with-
out reference to contrary court decisions, observed all too

__________
4 Other circuits have also stressed the importance of one or more
of these factors. See, e.g., HarperCollins San Francisco, a Div. of
HarperCollins Publishers, Inc. v. NLRB, 79 F.3d 1324, 2132 (2d
Cir. 1996) ("events subsequent to the employer's violations, such as
the passage of time and the substantial turnover of employees");
NLRB v. Cell Agric. Mfg. Co., 41 F.3d 389, 398 (8th Cir. 1994)
(passage of time, employee turnover and management's "voluntary
statements of cooperation") (internal citation omitted); NLRB v.
So-Lo Foods, 985 F.2d 123, 128-29 (4th Cir. 1992) (employee
turnover); NLRB v. LaVerdiere's Enters., 933 F.2d 1045, 1054-55
(1st Cir. 1991) (passage of time); Texas Petrochemicals Corp. v.
NLRB, 923 F.2d 398, 405-06 (5th Cir. 1991) (passage of time);
M.P.C. Plating, Inc. v. NLRB, 912 F.2d 883, 888 (6th Cir. 1990)
(passage of time and employee turnover); Impact Indus. v. NLRB,
847 F.2d 379, 383 (7th Cir. 1988) (passage of time, employee
turnover and change of management); Piggly Wiggly v. NLRB, 705
F.2d 1537, 1543 n.9 (11th Cir. 1983) (changes up to time of hearing).
NLRB v. Armcor Indus., 535 F.2d 239, 246 (3d Cir. 1976) ("present
conditions"). But see NLRB v. Bakers of Paris, 929 F.2d 1427,
1448 (9th Cir. 1991) (passage of time and employee turnover are
"irrelevant to the adjudication of enforcement proceedings");
NLRB v. Wilhow Corp., 666 F.2d 1294, 1304 (10th Cir. 1981) ("In
NLRB v. Jamaica Towing Co., 632 F.2d 208, 214 (2nd Cir. 1980),
the court stated that 'employee turnover and lapse of time may ...
become major factors in close cases.' Unlike the case that is cited,
the s 8(a)(3) violations that Wilhow is guilty of do not make for the
type of close case contemplated by the Second Circuit.").

accurately that "[t]he Board has termed such passage of time
'regrettable' but 'unavoidable,' and not a sufficient basis to
deny a bargaining order." Flamingo, slip op. at 63 (citing
Quality Aluminum Prods., 278 N.L.R.B. 338, 340 (1986),
enforced, NLRB v. Quality Aluminum Products, Inc., 813
F.2d 795 (6th Cir.), cert. denied, 484 U.S. 825 (1987). Be-
cause, in his view, "[t]he very nature of this litigation would
require extensive time because of its complexity," the ALJ
stated he "d[id] not believe the time from events in 1993 to
the present should affect imposition of a bargaining order."
Flamingo, slip op. at 63. He made no specific findings
regarding the dissipating effect vel non of the passage of time
on Flamingo's unfair labor practices. The ALJ also summari-
ly dismissed Flamingo's arguments based on turnover of
personnel. Again invoking the Board's authority and ignor-
ing judicial decisions, he stated: "The Board is also uncon-
vinced that 'management turnover' affects the validity of a
bargaining order." Id. at 64 (citing Action Auto Stores, 298
N.L.R.B. 875 (1990)).5 Regarding unit members, the ALJ,
while acknowledging that turnover had reached "50 percent
as of April 1995," nonetheless declared: "Fundamentally the
Board considers evidence of such turnover to be irrelevant as
concerning factors that govern the issuance of a Gissel bar-
gaining order." Id. at 64 (citing Astro Printing Servs., 300
N.L.R.B. 1028, 1029 (1990); Waste Management of Utah, 310
N.L.R.B. 883, 883 (1993)).

In its decision, the Board failed to correct the ALJ or to
redirect the focus of the inquiry. With no mention of the
overwhelming authority from this circuit and others empha-
sizing the need to consider circumstances at the time of
remedy (and not at the time of violation), the Board adopted
the ALJ's views of the law and of the facts with little change.
Without addressing the passage of time specifically, the
Board did "highlight" two post-election circumstances noted

__________
5 Flamingo alleges that 14 of the 21 supervisors found to have
committed unfair labor practices, including Sherlock and Kosinski,
are no longer employees at the hotel. See Brief of Appellant at 24-
25 & n.4.

by the ALJ, namely that (1) although the employee screening
"began during the pre-election period," it "continued for
many months after the July 6, 1993 election" and (2) that
'corporate Hilton executives,' to whom the ALJ referred,
"were involved in the Respondent's unlawful campaign
against the Union and are still employed by the Respondent,"
including Jim Anderson, Hilton's corporate senior vice presi-
dent of labor relations and personnel administration, who "the
record shows ... played a major role in orchestrating the
Respondent's unlawful campaign against the Union" and
whose "continued employment is a factor undercutting the
Respondent's management turnover defense to the imposition
of a bargaining order here." Flamingo, slip op. at 1-2.
These conclusionary comments do not justify enforcement of
a Gissel category II bargaining order.

First, the ALJ pointed to only a handful of instances (with
little detail) in which the screening process might have influ-
enced employment decisions. See Flamingo, slip op. at 24-
26. Further, any effect the process might have had on the
unit's composition may well have dissipated by the time of the
Board's decision given Flamingo's substantial employee turn-
over--which the Board did not address. Most importantly, it
is anything but clear that the process lasted much beyond the
election. The ALJ made no finding to this effect and there is
scant evidence in the record to support the Board's observa-
tion that it did. As for retention of corporate management
personnel, while the ALJ found Anderson's role in Flamingo's
counter-campaign was substantial, see, e.g., id. at 8
("Anderson primarily developed the overall extent of Respon-
dent's countering campaign."), neither the ALJ nor the Board
assessed the continuing effect of Anderson's retention in light
of employee turnover and changes in on-site management,
including the apparent departure of both Sherlock and Kosin-
ski.6 In short the Board's passing nod in the court's (or

__________
6 The ALJ ascribed to Sherlock and Kosinski much of the respon-
sibility for the unlawful practices, characterizing Sherlock as "a key
perpetrator" and Kosinski as "the perpetrator of the major amount
of conduct" and "the person most active in advising, planning, and

courts') direction does not meet its burden in a Gissel catego-
ry II case. The Board must--to iterate--find that a bargain-
ing order is necessary at the time it is issued and support its
finding with a "reasoned explanation that will enable [us] to
determine from the Board's opinion (1) that it gave due
consideration to the employees' section 7 rights, which are,
after all, one of the fundamental purposes of the Act, (2) why
it concluded that other purposes must override the rights of
the employees to choose their bargaining representatives and
(3) why other remedies, less destructive of employees' rights,
are not adequate." Charlotte Amphitheater, 82 F.3d at 1078
(citations omitted).

III.

Having concluded that the bargaining remedy cannot stand,
we now address Flamingo's substantial evidence and due
process arguments.

First, we agree with Flamingo that two of the unfair
practice findings must be vacated because not supported by
substantial evidence. See CitiSteel USA, Inc. v. NLRB, 53
F.3d 350, 354 (D.C. Cir. 1995). The ALJ found that the
hotel's assistant director of housekeeping, Kent Vaughn, com-
mitted an unfair labor practice by threatening employees at a
meeting that their pay would be reduced and they would lose
benefits if they voted in favor of the Union, based on the
translation of his comments at the meeting made by Amanda
Vasquez, a bilingual guest room attendant, who acted as
interpreter at the meeting. Yet at the same time the ALJ
expressly discredited Vasquez's "chronically overstated and
unreliable" testimony, finding she had mistranslated Vaughn's
actual words, which were to the effect that "loss to employees
was an inevitable consequence of their unionizing' and which
the ALJ acknowledged were "partisan, but largely permissi-

__________
implementing the overall benefit changes." Flamingo, slip op. at
62-63. And the Board did not contradict these findings. According
to Flamingo, both Sherlock and Kosinski have since left its employ,
see Brief of Appellant at 24 & 25 n.4, although Kosinski's departure
is not noted in the record.

ble." Flamingo, slip op. at 42. The ALJ reasoned that "it
was Respondent's choice to designate Vasquez as the inter-
preter for a substantial assembly of employees" and "[a]s
such she became Respondent's agent for this limited purpose,
and in the process disseminated threats to the Hispanic
employees taking meaning from her as to what two prominent
supervisors were presenting." Id. "On this special basis,"
the ALJ concluded, "the allegations must be found to have
merit." Id. We disagree. In the only supporting authority
cited by the ALJ, the Board found an employee-interpreter
acted as an agent of the employer expressly because the
employee's "activities exceeded those of a mere neutral trans-
lator." Ella Indus., 295 N.L.R.B. 976, 976 n.2 (1989). There
is no evidence here that Vasquez, herself a Union supporter,
played a comparable role. She was merely enlisted pro hac
vice to translate Vaughn's words, apparently because she
happened to be both bilingual and present at the meeting.
Because there is no evidence that Vaughn (or any other
representative of Flamingo's management) committed the
unfair labor practices as alleged in paragraph 10(bb) and
10(cc) of the complaint, we cannot sustain the Board's finding
that he did.

Nor can we uphold the ALJ's finding that President Sher-
lock "unlawfully informed employees that it would be futile
for them to support the Union." Flamingo, slip op. at 48.
According to the ALJ, Edgar Galaviz, a fry cook in the chef
department, "testified that Sherlock had said the company
was not obliged to negotiate with the Union, but that in
another sense he could prolong any negotiations for years."
Id. The ALJ expressly rejected Galaviz's testimony "that
Sherlock said that the company was not obliged to negotiate"
but accepted as credible the assertion that Sherlock stated
"that negotiations could be prolonged for years." Id. The
ALJ then concluded: "The surviving evidence in support of
this allegation is that of [Edgar] Galaviz[, a fry cook in the
chef department,] to the effect Respondent foresaw negotia-
tions as lasting for years." Id. Sherlock's statement, as the
ALJ construed it from the testimony he credited, does not
support an unfair labor practice finding. In NLRB v. Gissel

Packing Co., 395 U.S. 575 (1969), the Supreme Court de-
clared:

[A]n employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union, so long as the
communications do not contain a 'threat of reprisal or
force or promise of benefit.' He may even make a
prediction as to the precise effects he believes unioniza-
tion will have on his company. In such a case, however,
the prediction must be carefully phrased on the basis of
objective fact to convey an employer's belief as to demon-
strably probable consequences beyond his control or to
convey a management decision already arrived at to close
the plant in case of unionization.

395 U.S. at 618 (quoting 29 U.S.C. s 28(c)). The Board itself
has expressed the view that "[m]ere references to the possi-
ble negative outcomes of unionization ... do not deprive [an
employer's campaign] materials of the protections of Section
8(c)." UARCO, Inc., 286 N.L.R.B. 55, 58 (1987), and has,
accordingly, found no unfair labor practice in such manage-
ment statements as "Please, don't let this outside union force
you and your Company into a knock-down and drag-out
fight!," id. at 56-58, and "a vote for the [union] would put us
back to the bargaining table which is a long and expensive
process, and who knows, we might wind [sic] in another
strike," Coleman Co., 203 N.L.R.B. 1056, 1056 (1970). Be-
cause Sherlock's statement speculated about the potential
duration of the bargaining negotiations based on what he
"foresaw," the finding of an unfair labor practice as alleged in
paragraph 11(b) of the complaint must be vacated. See
General Elec. Co. v. NLRB, 117 F.3d 627, 635-36 (D.C. Cir.
1997) (in finding unfair labor practice based on employer
handbill suggesting likelihood of strike if union won election,
"the ALJ erred by converting a possibility into a certainty,
then declaring it a violation of the Act"); cf. Ron Junkert,
308 N.L.R.B. 1135, 1135 n.2 (1992) (finding unfair labor
practice in employer's "statement that he had only to negoti-
ate with the Union, not sign a contract, and negotiations could

last a year" only because "in this context, it was coercive and,
indeed, a threat that employee support for the Union would
be futile"); Atlas Microfilming, 267 N.L.R.B. 682, 685-86
(1983) (finding statement "[S]ure you can go to the govern-
ment, you can win the election, you bargain one year, two
years, three years, we're not going to agree to anything" was
"nothing less than a warning that the employees' efforts to
organize and select a collective-bargaining representative was
an exercise in futility").

Finally, we address Flamingo's due process argument and
join other circuits in holding that the Board's authority under
the Act to seek preliminary injunctive relief against an em-
ployer in the district court does not deprive the employer of a
neutral decisionmaker in subsequent proceedings before the
Board. See Kessel Food Mkts., Inc. v. NLRB, 868 F.2d 881,
887-88 (6th Cir.), cert. denied, 493 U.S. 820 (1989); NLRB v.
Sanford Home for Adults, 669 F.2d 35, 37 (2d Cir. 1981); cf.
Blinder, Robinson & Co. v. SEC., 837 F.2d 1099, 1104-07
(D.C. Cir. 1988) (SEC's authority to seek injunction in district
court and to later impose administrative penalty does not
violate due process), cert. denied, 488 U.S. 869 (1988). Like
the Sixth Circuit, we find dispositive the Supreme Court's
holding in Withrow v. Larkin, 421 U.S. 35 (1975), that the
combination of investigative and adjudicative functions does
not, without more, constitute a violation of due process. See
Kessel Food Mkts, 868 F.2d at 887-88. Nor do we perceive
any separation of powers defect in the Act's scheme. See
Blinder, 837 F.2d at 1103-04.

IV.

For the preceding reasons we grant Flamingo's petition for
review and deny the Board's cross-application for enforce-
ment of the Board's order insofar as it (1) finds unfair labor
practices as described in paragraphs 10(bb), 10(cc) and 11(b)
of the NLRB complaint and (2) orders Flamingo to bargain
with the Union. We grant the Board's cross-application for
enforcement of its order with respect to the other unfair labor
practices found to have been committed. We further remand

for the NLRB to reconsider the appropriate remedy, in
accordance with our precedent, and to issue a bargaining
order only if it makes a finding that in light of circumstances
at the time of the order, taking into account the passage of
time, turnover of unit members and change in management,
"the possibility of erasing the effects of past practices and of
insuring a fair rerun election by the use of traditional reme-
dies is slight and that employee sentiment once expressed in
favor of the Union would be better protected by a bargaining
order." Charlotte Amphitheater Corp. v. NLRB, 82 F.3d at
1078 (citations omitted).

So ordered.

 Rogers, Circuit Judge, concurring: Although I agree that
the Board has failed to explain adequately its imposition of a
Gissel bargaining order, the record demonstrates that the
Board made sufficient findings regarding management turn-
over at the hotel. While the ALJ first suggested that "man-
agement turnover," in general, should not "affect[ ] the validi-
ty of a bargaining order," he proceeded to address this factor
and found the hotel's evidence unconvincing. The Board, in
turn, adopted these findings regarding management turnover
and clarified the underlying reasoning sufficiently. Thus, in
my view, the principal issue requiring further consideration
on remand is the evidence of substantial employee turnover at
Flamingo since the election.

Both the Board and the ALJ considered the hotel's evi-
dence of management turnover and offered particularized
explanations why this evidence does not make a bargaining
order an inappropriate remedy. At the hearing before the
ALJ, the hotel introduced evidence showing that eight of the
twenty-one supervisors found to have committed unfair labor
practices were no longer employed by the hotel.1 With the
exception of William J. Sherlock, the hotel's President, the
ALJ discounted the significance of these departures because
the supervisors' unlawful conduct was "minor in nature" or
had only a minimal impact on employees in comparison to the

__________
1 Before rendering his decision, the ALJ denied a motion by the
hotel to reopen the record to admit evidence that three additional
supervisors, including William J. Sherlock, the President of the
hotel throughout the election period, had left its employ. The hotel
has not raised any substantial challenge to this decision in its
petition for review, and the court can only consider the evidence
contained in the record. See 29 U.S.C. s 160(e), (f) (1994); Glomac
Plastics, Inc. v. NLRB, 592 F.2d 94, 100 (2d Cir. 1979). Neverthe-
less, the ALJ did consider the effect of Sherlock's departure on the
need for a bargaining order, and therefore the court can consider
this evidence in reviewing the Board's order. See Charlotte Amphi-
theater Corp. v. NLRB, 82 F.3d 1074, 1080 (D.C. Cir. 1996) (citing
Conair Corp. v. NLRB, 721 F.2d 1355, 1388-89 n.1 (D.C. Cir. 1983)
(Wald, J., dissenting)).

substantial number of other unfair labor practices committed
by hotel management. Additionally, the ALJ explained that
"the mere fact that Sherlock is now gone has lessened effect
when it is known that basic labor relations policies are
devised by corporate Hilton executives and not necessarily
the property president at some given point in time."

In order to clarify this assessment, the Board pointed to
Jim Anderson, Hilton's Corporate Senior Vice President for
Labor Relations and Personnel Administration, as one of the
remaining corporate executives who "played a major role in
orchestrating the [hotel's] unlawful campaign against the
Union." Anderson "primarily developed the overall extent of
[the hotel's] countering campaign" against the Union organi-
zation drive, was one of the "select group" that helped choose
the labor relations consulting firm hired to combat the union,
and directed the on-site managers implementing the cam-
paign. Although Anderson was not personally involved in the
majority of unfair labor practices committed by on-site super-
visors, he directly participated in some of the hotel's more
pervasive unlawful conduct. He was involved, for example, in
the hotel's decision to improve employee health benefits prior
to the election and was responsible for determining the timing
of the announcement. He also approved an increase in wages
for hourly employees, which affected more than half of the
employees in the hotel department. In the ALJ's words:
"Anderson was delegated the responsibility to determine its
timing, and knowing well how it might interplay with the
Union's campaign he directed it to be implemented immedi-
ately." Cf. Electrical Prods. Div. of Midland-Ross Corp. v.
NLRB, 617 F.2d 977, 987 (3d Cir. 1980).

Regardless of the extent of Anderson's personal complicity
in the hotel's unlawful attempts to influence the election, the
Board used his conduct to illustrate its general view that
responsibility for the hotel's actions reached higher levels of
Hilton's corporate management. Anderson and other Hilton
executives set the basic labor policies for Hilton's various
casino-hotels and specifically approved some of the actions
taken by the hotel's supervisors. Thus, the Board concluded

that turnover in on-site management is unlikely to improve
the chances for a fair rerun election as long as Hilton
corporate policy remains unchanged and guided by executives
such as Anderson. See NLRB v. Berger Transfer & Storage
Co., 678 F.2d 679, 694 (7th Cir. 1982); NLRB v. Anchorage
Times Publ'g Co., 637 F.2d 1359, 1370 (9th Cir. 1981).

This conclusion is bolstered by the Board's experience in
other cases involving similar unlawful attempts by Hilton to
interfere with union elections at its Nevada hotel-casinos.
See, e.g., Reno Hilton Resorts, 320 NLRB 197, 197-98 (1995);
Reno Hilton Resorts Corp., 319 NLRB 1154, 1154, 1165-66
(1995); Flamingo Hilton Reno, 317 NLRB 361, 361 (1995),
aff'd mem, 95 F.3d 1157 (9th Cir. 1996); Hilton Hotels Corp.,
282 NLRB 819, 819, 821-22 (1987). For example, in one of
these cases, the ALJ noted:

Hilton does not want to deal with any more unions at the
Reno Hilton, or any other of its Nevada properties
[including the Flamingo Hilton-Laughlin]. All agree
that once [the Reno Hilton] learned of the union organiz-
ing activities, it decided at the highest corporate levels to
oppose the Union and to involve all or most of its
midlevel and high executives in resisting the Union's
efforts.

Reno Hilton Resorts Corp., 319 NLRB at 1164; see also id.
at 1164 n.6; Hilton Hotels Corp., 282 NLRB at 821 (empha-
sizing evidence that the entertainment director for all of the
Nevada properties was under "corporate instructions to fight"
a unionization drive at the Reno Hilton). Indeed, in the past,
management at Flamingo has even unlawfully refused to
bargain with a union after it was elected and certified as the
representative of a different bargaining unit at the hotel. See
Flamingo Hilton-Laughlin, Inc., 306 NLRB No. 186, 140
L.R.R.M. (BNA) 1117 (Mar. 31, 1992), enforced, 19 F.3d 28
(9th Cir. 1994).

In sum, the Board has clearly articulated the reasons why
it concluded that the departure of several on-site supervisors
has not substantially increased the possibility of a fair rerun

election. In particular, contrary to the court's suggestion, see
opinion at 11, the Board has already addressed the signifi-
cance of Sherlock's resignation. Moreover, the Board cannot
be faulted for failing to consider John Kosinski's departure
because the record contains no evidence of this development.2
The court must defer to the Board's "expert estimate as to
the [continuing] effects on the election process of unfair labor
practices," NLRB v. Gissel Packing Co., 395 U.S. 575, 612
n.32 (1969); accord Davis Supermarkets, Inc. v. NLRB, 2
F.3d 1162, 1175-76 (D.C. Cir. 1993), so long as it has provided
a reasoned explanation of its conclusions based upon substan-
tial evidence in the record, see Avecor, Inc. v. NLRB, 931
F.2d 924, 937-38 (D.C. Cir. 1991).

I otherwise concur in the court's opinion. The Board has
not adequately explained why employee turnover had not
ameliorated the effects of the hotel's unfair labor practices to
such an extent that a Gissel order was unnecessary. The
Board dismissed the effects of employee turnover within the
bargaining units primarily because the hotel's "unlawful
screening of job applicants ... continued for many months
after the July 6, 1993 election." While the Board might well
determine that an employer's screening process, if used to
alter natural employee turnover in order to disfavor the union
in future elections, might leave "so lasting an imprint that a
fair rerun election cannot be assured," id. at 937, as the court
makes clear, see opinion at 10-11, the Board's assertion in
this regard is not supported by the record. The ALJ only
found that the hotel had screened out pro-Union applicants in
the months directly preceding the election, and little evidence

__________
2 In its briefs, the hotel asserts that Kosinski has left its
employ, without specifying the date of his departure or offering any
evidentiary support. From the record it is clear that Kosinski was
still employed by the hotel throughout the course of the hearings
before the ALJ. The Board also appeared to have no knowledge of
his departure at the time it issued the bargaining order. There is
no indication that the hotel ever alerted the Board to this factual
development, and the Board had no obligation to inquire into
Kosinski's status. See Charlotte Amphitheater Corp., 82 F.3d at
1080.

supports the conclusion that the screening continued after-
wards. On remand the Board must "carefully consider em-
ployee turnover" and determine whether "changes in the
[hotel's] work force have made a bargaining order now inap-
propriate, even if one might have been appropriate at some
earlier time." Id. (quoting NLRB v. Pace Oldsmobile, Inc.,
681 F.2d 99, 102 (2d Cir. 1982) (per curiam)) (internal quota-
tion marks omitted).

Although its finding that the hotel continued to screen out
Union-leaning applicants after the election cannot be main-
tained, at least not without further explanation of the evi-
dence and inferences on which it relies, the Board should
consider on remand the fact that the hotel has not changed its
hiring procedures and, thus, the potential for abuse remains.
Prior to the election, the hotel modified its hiring practices by
requiring a second approval step for job applicants. This
additional level of review was used by supervisors in the
hotel's human resources department to disqualify applicants
who had "friends or relatives working in the casino that were
affiliated with the union." Because this unlawful screening
was carried out personally by one or two supervisors, it
remained undetected until well into the course of the hearings
before the ALJ. Although there is no evidence that the
hotel's human resources department is still using this second
round of approval to dilute Union support, the procedure
remains in effect. The ALJ noted that given the hotel's
"deep commitment" to resisting the unionization of its em-
ployees, "conduct this devious invites the presumption [that
further tainting] could readily recur." Somewhat undercut-
ting this presumption, however, are the apparent facts that
the supervisor responsible for devising and implementing the
applicant screening, John Kosinski, is no longer employed by
the hotel 3 and that the responsibility for conducting the
second approval step is now divided among several different

__________
3 Although evidence of Kosinski's departure is not contained in
the record, see supra note 2, on remand, the hotel may, of course,
petition the Board to reopen the record to admit such evidence.
See 29 C.F.R. s 102.48(b) (1998).

members of the human resources department. These are
considerations for the Board on remand.

Furthermore, aside from the issue of applicant screening,
there may exist other reasons why substantial employee
turnover within the bargaining units may have failed to
dissipate the effects of Flamingo's unfair labor practices.
After cursorily dismissing the evidence of employee turnover
as "irrelevant," the ALJ remarked:

[T]here are several hundred employees remaining in the
two units who experienced the influencing unfair labor
practices. The facility never closes, and a more than
ordinary potential is present for continuing and cross
communication among new and longer service employees
as well as conversation spanning departmental lines
about many happenings of the Union's long campaign.

This somewhat speculative conclusion does not, by itself,
provide sufficient explanation for the imposition of the bar-
gaining order. Cf. Be-Lo Stores v. NLRB, 126 F.3d 268, 283
(4th Cir. 1997). The ALJ pointed to no evidence in the
record that "cross-communication" had actually occurred but
rather offered general assumptions that could equally apply
to many other employers. Perhaps realizing the inadequacy
of these statements, the Board did not comment on them and
instead chose to emphasize the hotel's continued applicant
screening as a factor undercutting the effects of substantial
employee turnover. Nevertheless, on remand, the Board
should reevaluate the ALJ's findings and consider any evi-
dence showing that knowledge of the hotel's unfair labor
practices continues to disseminate throughout the workforce.
Laughlin, Nevada, is a relatively small population center
whose chief industry consists of several large casino hotels,
including the Flamingo. New employees, who have likely
worked at other area casinos, may already know of the labor
difficulties at the hotel and management's determination to
prevent unionization. But without specific findings by the
Board supported by evidence in the record, such factors
remain purely speculative and a bargaining order cannot
issue. See Avecor, Inc., 931 F.2d at 938.

Finally, while the passage of time, in and of itself, should
not be dispositive, see St. Francis Fed'n of Nurses & Health
Prof'ls v. NLRB, 729 F.2d 844, 856 (D.C. Cir. 1984); Peoples
Gas Sys., Inc. v. NLRB, 629 F.2d 35, 47-48 (D.C. Cir. 1980),
it may increase the chances of a fair rerun election when
combined with other changes in the bargaining unit, such as
employee turnover. See J.L.M., Inc. v. NLRB, 31 F.3d 79, 84
(2d Cir. 1994). Over five years have now elapsed since the
tainted representation election. In its initial decision, the
Board adopted the ALJ's finding that the three-year lapse
between the election and his order was representative of the
normal course of litigation and particularly unavoidable due
to the complexity of the instant case. Regardless of the
adequacy of the Board's reasoning, on remand the Board
must readdress whether the intervening years, in conjunction
with the changed circumstances, have helped to dissipate the
remaining effects of Flamingo's unfair labor practices. See
Charlotte Amphitheater Corp., 82 F.3d at 1078; Avecor, Inc.,
931 F.2d at 937.