United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2000 Decided June 30, 2000
No. 99-1336
Traction Wholesale Center Co., Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
Terrence J. Nolan argued the cause for petitioner. With
him on the briefs was Christopher H. Mills.
Rachel I. Gartner, Attorney, National Labor Relations
Board, argued the cause for respondent. On the brief were
Leonard R. Page, General Counsel, Linda Sher, Associate
General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, Peter Winkler, Supervisory Attorney, and
Jill A. Griffin, Attorney.
Before: Randolph, Tatel and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Concurring statement filed by Circuit Judge Randolph.
Tatel, Circuit Judge: Petitioner challenges the National
Labor Relations Board's determination that it committed
unfair labor practices in response to a union organizing
campaign. Petitioner also challenges the Board's imposition
of a bargaining order. Because we conclude that the Board's
unfair labor practice determinations are supported by sub-
stantial evidence and that the Board adequately explained the
need for the bargaining order, we deny the petition for review
of those issues and grant the Board's cross-petition for en-
forcement.
I
Petitioner Traction Wholesale Center Company, Inc., a
wholesale tire distributor, buys tires and wheels from manu-
facturers and larger distributors, reselling them to tire retail-
ers and gas stations. Operating out of four warehouses--two
in New Jersey and one each in Delaware and Philadelphia--
Traction employed approximately thirty-six people at the time
of the events that gave rise to this case. Traction Wholesale
Ctr. Co., Inc., 328 NLRB No. 148, 1999 WL 1186753 at *10
(July 28, 1999). The unfair labor practices at issue occurred
when Traction learned that a union had garnered support
from a majority of its employees. As determined by an
administrative law judge, the relevant facts are as follows.
In March 1997, several Traction employees approached
Charles Schiavone, one of the company's Philadelphia drivers,
"seeking guidance on how to form a union." Id. at *10. A
seven-year Traction veteran, Schiavone contacted and met
with the Teamsters Union, Local No. 115, about organizing
warehouse employees and drivers working in the company's
four warehouses. At the end of that meeting, Schiavone
signed a union authorization card designating the union as his
"chosen representative in all matters pertaining to wages,
hours, and working conditions." Id. He also took blank
authorization cards to distribute to Traction drivers and
warehousemen. During the next month, Schiavone kept the
union apprized of his organizing efforts. By April 14, the
union had received signed authorization cards from eleven of
Traction's twenty drivers and warehousemen. Id. at *11.
Armed with the eleven authorization cards, two union rep-
resentatives went to the Philadelphia warehouse on April 15
to ask Traction to recognize the union. There they met with
the on-site manager, Scott Adams, and showed him the
signed authorization cards. Id. at *11. When Adams told
the union representatives that he had no authority to recog-
nize the union, they asked him to deliver a letter to Traction's
owners, Joseph O'Donnell and Jeffrey Cohen, in which the
union demanded recognition. Id. at *12.
Immediately after the union representatives left, Adams
summoned Schiavone to his office, telling him that he was
upset that Schiavone had not told him about the union
organizing effort and demanding to know who had started it.
Id. at *15, 22. Adams warned that Traction would either
close the warehouse or subcontract for delivery services if the
union campaign succeeded. Id. at *15. If Schiavone "wanted
to be a union thug like other union supporters who destroy
other people's property," Adams said, "then go right on
ahead." Adams then told Schiavone to "get the fuck out of
here." Id. When Schiavone called Adams the next morning
asking whether he should return to work, Adams told him
that he had been fired. Id.
On the same day that the union representatives met with
Adams and showed him the eleven signed cards, Adams
asked Kevin Tryon, another Philadelphia driver, whether he
had signed an authorization card. Id. at *16, 23. When
Tryon, who in fact had signed a card, answered no, Adams
revealed that he had seen Tryon's signature on a card. Id. at
*16. Later that evening, Adams told Tryon that Traction
would "rather pay niggers $5.00 an hour" than work with the
union. Id. He also told Tryon that Traction was "not afraid
to close down, if that's what it takes." Id.
That same day, Adams announced two policy changes for
the Philadelphia warehouse. First, employees would have to
begin "punching out" and "punching in" on the time clock to
document that they took no more than thirty minutes for
lunch. Id. at *16-17. Second, employees could no longer use
company vans after work for personal reasons. Id. Until
this announcement, Adams had allowed such use even though
company policy prohibited it.
The union then filed a representation petition, and the
Board ordered an election. During the two months before
the election, Traction's two owners and Adams conducted two
meetings with the Philadelphia drivers and warehousemen
that led to additional unfair labor practice charges. At the
first meeting, on April 23, Adams told Tryon that although he
was "due for a raise, he would not be getting it...." Id. at
*18. Also during that meeting, Cohen (one of the owners)
asked the employees what Traction had done to make them
bring in a union, telling them not only that Traction could
offer them more than the union, but that if they had any
personal or job-related problems, Traction could help. Id. at
*18, 24. At a second meeting, this one on June 3, Cohen told
the employees that Traction would "give them more than the
union" and that once they "got past this thing, we can move
on to something bigger and better." Id. at *24.
The union lost the election. Sixteen employees voted
against the union, two voted for it, and two ballots were
contested. Id. at *19. Following an evidentiary hearing, an
administrative law judge found that Traction had committed a
series of unfair labor practices in violation of sections 8(a)(1)
and (3) of the National Labor Relations Act, 29 U.S.C.
ss 158(a)(1), (a)(3), by firing Schiavone, denying Tryon's
raise, and changing its policies with respect to personal use of
vans and clocking in and out for lunch. Id. at *37. The ALJ
also concluded that Adams' comments to both Schiavone and
Tryon amounted to unfair labor practices in violation of
section 8(a)(1), as did Cohen's comments to Traction's Phila-
delphia employees. Id. The ALJ recommended that the
Board invalidate the election and issue a bargaining order.
Id. at * 38.
The Board agreed that Traction had committed the enu-
merated unfair labor practices and that a bargaining order
was appropriate. Id. at *1. The Board disagreed with the
ALJ on just one issue. Despite concluding that Traction had
committed an unfair labor practice by changing its van policy,
the ALJ recommended no remedy because Traction had
offered evidence that its insurance policy would not cover
personal use of company vans. Id. at *38 n.30. Without
explanation, the Board ordered Traction to rescind its person-
al use prohibition. Id. at *1 n.2. Member Brame dissented
on two grounds: he thought that Cohen's remarks at the
April 23 and June 3 meetings did not amount to unfair labor
practices; he also thought the bargaining order inappropriate
because, in his view, the union had never attained majority
support. Id. at *5-6.
In its petition for review, Traction argues that the unfair
labor practice charges stemming from the Schiavone firing,
the changed van policy, the denial of Tryon's raise, and
Cohen's comments are not supported by substantial evidence
in the record. Traction also challenges two of the Board's
remedies: the reinstatement of its personal van use policy
and the bargaining order. With respect to the latter, Trac-
tion argues that the Board failed to satisfy this circuit's strict
standards for imposing bargaining orders. See, e.g., Avecor,
Inc. v. NLRB, 931 F.2d 924, 934-39 (D.C. Cir. 1990). The
Board cross-petitions for enforcement.
II
Section 8(a)(1) of the NLRA makes it an unfair labor
practice for employers "to interfere with, restrain, or coerce
employees" in the exercise of their rights "to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection...." 29 U.S.C. ss 158(a)(1), 157. Section 8(a)(3)
makes it an unfair labor practice for employers "by discrimi-
nation in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage mem-
bership in any labor organization." Id. s 158(a)(3). To es-
tablish that an employer's conduct (in this case, Schiavone's
firing, the change in van policy, and the denial of Tryon's
raise) violates section 8(a)(3), the general counsel must first
show that the "protected activity was a motivating factor in
the adverse employment decision." Frazier Indus. Co., Inc.
v. NLRB, No. 99-1297, Slip Op. at 8 (D.C. Cir. 2000) (internal
quotation marks omitted). If this prima facie showing is
made, the burden shifts to the employer to demonstrate that
"it would have made the adverse decision even had the
employee not engaged in protected activity." Vincent Ind.
Plastics, Inc. v. NLRB, 209 F.3d 727, 735 (D.C. Cir. 2000)
(citing Wright Line, Inc., 251 N.L.R.B. 1083, 1089 (1980)).
In determining whether an employer had a discriminatory
motive, "the NLRB may 'consider[ ] such factors as the em-
ployer's knowledge of the employee's union activities, the em-
ployer's hostility toward the union, and the timing of the em-
ployer's action.' " Id. (quoting Power Inc. v. NLRB, 40 F.3d
409, 418 (D.C. Cir.1994)).
Our review of Board unfair labor practice determinations is
quite narrow. "The Board's findings of fact, if supported by
substantial evidence, are conclusive." Avecor, 931 F.3d at
928. In reviewing the Board's conclusions, "[w]e ask not
whether [petitioner's] view of the facts supports its version of
what happened, but rather whether the Board's interpreta-
tion of the facts is reasonably defensible." Harter Tomato
Prods. Co. v. NLRB, 133 F.3d 934, 938 (D.C. Cir. 1998)
(internal quotation marks omitted). Moreover, "we must
accept the ALJ's credibility determinations, as adopted by the
Board, unless they are patently insupportable." Exxel/At-
mos, Inc. v. NLRB, 28 F.3d 1243, 1246 (D.C. Cir 1994). "We
are even more deferential when reviewing the Board's conclu-
sions regarding discriminatory motive, because most evidence
of motive is circumstantial." Vincent Plastics, 209 F.3d at
734. Bearing this deference in mind, we turn to Traction's
four challenges to the Board's unfair labor practice determi-
nations.
Schiavone Firing
This record contains more than substantial evidence to
support the Board's conclusion that anti-union animus moti-
vated the Schiavone firing. Adams fired Schiavone immedi-
ately after learning not only that the union had obtained
eleven authorization cards, but that Schiavone had signed
one. Equally indicative of anti-union animus, the ALJ con-
cluded that Adams violated section 8(a)(1) by telling Tryon
and Schiavone that the company would shut down before
working with a union (a conclusion that Traction does not
contest). See Vincent Plastics, 209 F.3d at 735 ("Evidence
that an employer has violated section 8(a)(1) of the Act can
support an inference of anti-union animus.").
Challenging the Board's determination that the general
counsel had made out a prima facie case of anti-union animus,
Traction maintains that Adams decided to fire Schiavone on
April 11, four days before learning that employees had autho-
rized the union. Traction claims that it decided to fire
Schiavone because of two incidents having nothing at all to do
with the union. The first involved Schiavone's alleged misuse
of a company policy that entitled employees to discounts on
tire purchases. When Schiavone bought tires in early April,
he took not just the employee discount to which he was
entitled, but also a discount available only to cash-paying
customers. The latter discount reduced the price of the tires
by an additional $6.59. The other incident involved graffiti
that Adams found on the warehouse wall that said "Chuck"
and "Chuck is cool." Schiavone's first name is Charles.
Adams testified that on April 11, after discovering that
Schiavone had taken the extra discount and after seeing the
graffiti, he told owner O'Donnell that he planned to fire
Schiavone. Adams further testified that he and O'Donnell
had agreed to fire Schiavone on Monday, April 14, but
because one employee called in sick and another was on
vacation on that day, he postponed firing Schiavone until the
next day. O'Donnell's testimony confirmed the basic ele-
ments of Adams' story. Relying on Adams' and O'Donnell's
testimony, Traction argues that Schiavone's firing could not
have been motivated by discriminatory animus because on
April 11--the day it decided to fire him--it was unaware of
the union organizing campaign.
Traction's argument suffers from a fatal flaw: The ALJ
credited neither Adams' nor O'Donnell's testimony. "It was
patently obvious," the ALJ found, "that Adams could not
keep his story straight on several matters, and that much, if
not all, of his testimony was simply fabricated to suit [Trac-
tion's] case." Traction, 1999 WL 1186753 at *19. Calling
Adams' testimony "self-contradictory and filled with inconsis-
tencies," the ALJ rejected it as "simply not credible." Id.
O'Donnell's testimony, the ALJ found, was "equally unpersua-
sive." Id. at *20. Traction has offered nothing to suggest
that the ALJ's credibility determinations are "patently insup-
portable." See Exxel/Atmos, 28 F.3d at 1246. Absent
O'Donnell's and Adams' testimony, all evidence in the record,
including the timing of the firing and the section 8(a)(1)
violations, points to anti-union animus.
A prima facie case of discriminatory animus having been
established, Traction could have avoided an unfair labor prac-
tice finding only by demonstrating that it would have fired
Schiavone regardless of his union activities. Traction failed
to meet this burden. The Board concluded that neither the
discount policy error nor the graffiti otherwise would have led
to Schiavone's firing. Substantial evidence supports the
Board's conclusion. O'Donnell testified not only that employ-
ees often made price code mistakes, but also that when they
inadvertently took extra discounts, the company simply re-
quired repayment of the discounted amount. Traction, 1999
WL 1186753 at *27. Moreover, from his "observation of
[Schiavone's] demeanor on the witness stand and throughout
the hearing," the ALJ found that Schiavone was not "some-
one who would risk losing his job of 7 years for a meager
$6.59." Id. With respect to Traction's other explanation for
firing Schiavone, the ALJ credited Schiavone's testimony that
the graffiti had been on the wall for close to a month before
Traction fired him. Id. Disbelieving both Adams and
O'Donnell and believing Schiavone, the ALJ thought it
"strain[ed] credulity to believe that Adams, having declined to
take action against Schiavone when he first observed the
writing sometime in March, would decide one month later to
discharge Schiavone, in part, for such activity." Id.
To be sure, the ALJ could have chosen to credit record
evidence supporting Traction's version of events. The only
question before us, however, is whether substantial evidence
supports the Board's view of the disputed events, not Trac-
tion's. See Frazier, Slip Op. at 9 (affirming Board's unfair
labor practice finding because "[a]lthough [the employer's]
interpretation of evidence may be reasonable, the Board's
finding to the contrary was supported by substantial evi-
dence"). Because we find no basis for questioning the ALJ's
credibility determinations, we affirm the Board's conclusion
that the Schiavone firing amounted to an unfair labor prac-
tice.
Personal Use of Company Vans
Challenging the Board's determination that it violated sec-
tions 8(a)(3) and (1) by changing its van policy in retaliation
for its employees' organizing efforts, Traction argues (as it
did with respect to the Schiavone firing) that it could not have
been motivated by anti-union animus. When O'Donnell told
Adams to start enforcing the company policy prohibiting
personal use of vans (on April 11), the company says, it did
not know about the union's organizing efforts. According to
Adams, O'Donnell told him to start enforcing the personal use
prohibition because the company had received a summons for
an unpaid New York parking ticket on one of the vans.
Traction also offered a letter from its insurance company
stating that its policy does not cover personal use of company
vans. From this, Traction argues that substantial evidence
does not support the Board's unfair labor practice determina-
tion.
Again, Traction misunderstands the substantial evidence
standard. Having discredited both Adams' and O'Donnell's
testimony, the ALJ found that they had not discussed the van
policy on April 11. Traction, 1999 WL 1186753 at *31.
"[T]he more credible scenario, and the one I accept as
true,"--and the one to which we owe deference--"is that
Adams never received any such instruction from O'Donnell in
the first place, and imposed the ban only after learning that
his Philadelphia store employees were supporting the Union."
Id. The ALJ also found that the insurance company letter
could not possibly have motivated Adams' April 15 van policy
announcement because the letter was dated May 14. Id. at
*31 n.27. Absent Traction's proffered explanations, the only
record evidence shows that employees were told on April 15,
the same day Adams spoke with the union representatives,
that he would start enforcing the van policy. Given this
timing, together with Adams' threats to close the company if
the union prevailed, the ALJ's conclusion that the enforce-
ment of the van policy was motivated by discriminatory
animus finds more than adequate support in the record.
Insisting that its van policy was not in fact motivated by
anti-union animus, Traction maintains that after April 15,
Adams made exceptions for certain employees, including
Tryon, a known union supporter. Again, while such evidence
may well support Traction's version of the events, the critical
point is that substantial evidence supports the ALJ's view of
the evidence. See Frazier, Slip Op. at 9. We therefore find
no deficiency in the Board's conclusion that the change in van
policy constituted an unfair labor practice.
The Board's remedy is a different matter. The ALJ
recognized that rescission was the ordinary remedy for this
type of unfair labor practice, but he thought it "improper" to
order Traction to rescind the unilateral change, i.e., to order
it to reinstate its prior practice of allowing employees person-
al use of vans, because it "appears to be the case" that "such
practice is prohibited by its insurance policy." Traction, 1999
WL 1186753 at *38 n.30. The Board disagreed. Stating only
that "rescission ... is the customary remedy for the viola-
tions found in this case," it rejected the ALJ's recommenda-
tion and directed Traction to rescind "the unilateral changes
in ... the van policy." Id. at 1 n.2. Of course, the Board
"is free to substitute its judgment for the ALJ's," Local 702,
Int'l B'hood of Elec. Workers, AFL-CIO v. NLRB, 2000 WL
520950 at *2 (D.C. Cir. 2000), but "when the Board reverses
an ALJ it 'must make clear the basis of its disagreement.' "
Mathews Readymix, Inc. v. NLRB, 165 F.3d 74, 77 (D.C. Cir.
1999) (quoting United Food & Commercial Workers Int'l
Union, Local 152 v. NLRB, 768 F.2d 1463, 1470 (D.C.Cir.
1985). See also Chicago Local No. 458-3M v. NLRB, 206
F.3d. 22, 29 (D.C. Cir. 2000) ("In order for the court properly
to review the Board's decision, it 'must be able to discern the
rationale' underlying the Board's conclusions.") (quoting Oil,
Chemical & Atomic Workers Int'l Union v. NLRB, 46 F.3d
82, 90 (D.C.Cir.1995)). Because the Board has failed to
explain, in either its decision or its brief, why it disagreed
with the ALJ that the insurance policy made rescission
inappropriate, we grant the petition for review with respect to
this issue and remand to the Board.
Tryon Raise
In testimony credited by the ALJ, Tryon said that when he
began working for Traction in early March, Adams told him
that he would probably get a raise within thirty to sixty days.
Tryon testified that at the April 23 meeting, Adams said:
"You're due for your raise but now I can't give it to you
because of the union." Adams denied promising Tryon a
raise, explaining that when Tryon requested one, he refused
because he thought it would be "improper" to give Tryon any
benefits during the union organizing campaign. Traction,
1999 WL 1186753 at *29.
Again crediting Tryon's testimony over Adams', the ALJ
found Adams' denial of the raise to have been motivated by
anti-union animus. Id. at *28-29. As the ALJ concluded,
because Adams had promised Tryon a raise, Adams was
obligated to act as he would have had no organizing campaign
been underway, i.e., to give him the raise. See Perdue
Farms, Inc., Cookin' Good Div. v. NLRB, 144 F.3d 830, 836
(D.C. Cir. 1998) ("[A]s a general rule, an employer's legal
duty in deciding whether to grant benefits while a representa-
tion proceeding is pending is to decide that question precisely
as it would if the union were not on the scene.").
Traction argues that even if Adams had promised Tryon a
raise within thirty to sixty days, because the denial of the
raise had not occured until after sixty days, Tryon was no
longer entitled to it, leaving Adams' explanation--that he
denied the raise because of his concern that it might be
viewed as an unlawful benefit--as the only credible evidence
in the record. To accept this argument, we would have to
infer from the fact that Tryon was told that he was entitled to
a raise within thirty to sixty days that he was not entitled to
the raise unless he asked for it before the sixtieth day. Not
only do we think this rather unlikely, but more important, the
ALJ chose not to draw this inference.
Cohen Statements
Traction begins its challenge to the Board's determination
that Cohen committed unfair labor practices at the employee
meetings on April 23 and June 3 by claiming that substantial
evidence does not demonstrate that Cohen even made the
statements. This argument fails for the same reason that
Traction's other substantial evidence challenges fail: the ALJ
credited the General Counsel's witnesses and reached a dif-
ferent conclusion, a conclusion supported by substantial evi-
dence. Not only did Tryon testify that Cohen made the
statements, but Cohen never directly contradicted Tryon.
Cohen did not testify at all about the June 3 meeting, and
with respect to the April 23 meeting, "while generally deny-
ing making any unlawful remarks, [he] admitted to recalling
'absolutely nothing' of what he or O'Donnell may have said."
Traction, 1999 WL 1186753 at *24.
Traction next argues that even if Cohen made the April 23
statements, they were not unlawful. (Traction does not ap-
pear to challenge the ALJ's ULP determination with respect
to Cohen's June 3 comments). Tryon testified about Cohen's
statements at the April 23 meeting as follows: "He just
stated that if there was ever a problem, ... whether it be
personal or job-wise, Traction was always there to help....
Somebody from management or through the company was
always willing to help or lend a hand." According to Tryon,
Cohen also asked the employees "what it was that the compa-
ny did wrong ... to bring somebody from the union into the
company," and he told them that "Traction would be able to
offer more than" the union.
Traction does not challenge the standard the Board uses to
determine whether an employer's solicitation of grievances
constitutes an unfair labor practice: Soliciting grievances is
not in itself an unfair labor practice, but implicit or explicit
promises to correct grievances may violate section 8(a)(1)
because "the combined program of inquiry and correction"
suggests that "union representation [is] unnecessary." Reli-
ance Electric Co., 191 NLRB 44, 46 (1971), enf'd, 457 F.2d 503
(6th Cir. 1972). An employer who has not previously solicited
grievances but who begins to do so in the midst of a union
campaign creates a "compelling inference" that the employer
is "implicitly promising" to correct the problems. Id. The
ALJ found, and the Board agreed, that neither Traction nor
Cohen had any past practice of soliciting grievances and that
there was a "compelling inference" that Cohen was implicitly
promising to correct any problems, a promise that was "clear-
ly coercive and designed to show that [management] alone
had the wherewithal to address and resolve employee prob-
lems." Traction, 1999 WL 1186753 at *1-2, 25.
Relying on Member Brame's dissent, Traction argues that
it made no implied promise to correct grievances because
"Cohen's alleged statement merely reflects his view of Trac-
tion's past practice with respect to its treatment of employees
and cannot reasonably be construed as a promise to take any
particular action in the future." Because Cohen's statements
were framed in the past tense, Member Brame asserted,
there is no "basis from which it can be inferred 'that the
grievances will be remedied and [no] circumstances giving
rise to the inference that the remedy will only be provided if
the union loses the election.' " Traction, 1999 WL 1186753 at
*6.
No doubt Member Brame's interpretation--that Cohen's
statements referred only to Traction's past practice--is plau-
sible. But the opposite interpretation, the one drawn by the
ALJ and the Board, is equally plausible, and it is to the
Board, not the dissenter, that we owe deference. According
to both the Board and the ALJ, Cohen was "plainly sending
the message that ... [Traction] was now (and would continue
to be) willing to 'lend a hand or help' with any problems
employees might have." Id. at *2. Moreover, because it is
not at all clear whether Tryon was quoting Cohen or para-
phrasing what Cohen had said--"He just stated that if there
was ever a problem, ... Traction was always there to help"--
we defer to the interpretation of the ALJ who heard the
testimony and found that "at the April 23 meeting Cohen ...
assured [employees] that if they had any personal or job-
related problem, [Traction's] management team was there to
help them." Traction, 1999 WL 1186753 at *24. We there-
fore think the Board had sufficient basis for inferring that
Cohen's statements represented an implicit promise to cor-
rect grievances and, by extension, coercion in violation of
section 8(a)(1). See Avecor, 931 F.2d at 931 ("We recognize
the Board's competence in the first instance to judge the
impact of utterances made in the context of the employer-
employee relationship.") (internal quotation marks omitted).
III
This brings us to the heart of this case--Traction's chal-
lenge to the bargaining order. Our starting point is the
Supreme Court's decision in NLRB v. Gissel Packing Co.,
Inc., 395 U.S. 575 (1969). "[W]here an employer has commit-
ted ... unfair labor practices [in addition to its refusal to
bargain] which have made the holding of a fair election
unlikely or which have in fact undermined a union's majority
and caused an election to be set aside.... [the Board] has the
authority to issue a bargaining order.... [T]he Board has
the same authority even where it is clear that the union,
which once had possession of [authorization] cards from a
majority of the employees, represents only a minority when
the bargaining order is entered." Id. at 610. Bargaining
orders are sometimes necessary, the Court explained, because
"[i]f an employer has succeeded in undermining a union's
strength and destroying the laboratory conditions necessary
for a fair election, he may see no need to violate a cease-and-
desist order by further unlawful activity. The damage will
have been done...." Id. at 612.
Because bargaining orders can deprive employees of their
section 7 right to choose their representative, this court has
carefully delineated the circumstances under which the Board
may issue such orders. Absent "outrageous and pervasive
ULP's," the Board may issue a bargaining order only if it has
substantial evidence that (1) "the Union, at some time, ...
had majority support within the bargaining unit"; (2) "the
employer's unfair practices ... had the tendency to under-
mine majority strength and impede the election process";
and (3) "the Board [has] determine[d] that the possibility of
erasing the effects of past practices and of ensuring a fair
rerun election by the use of traditional remedies is slight and
that employee sentiment once expressed in favor of the Union
would be better protected by a bargaining order." Avecor,
931 F.2d at 934. We also require the Board "to explicitly
balance" several factors to determine whether the need for a
bargaining order outweighs employees' section 7 rights to a
representation election. Vincent Plastics, 209 F.3d at 734.
One additional principle guides our review of the Board's
bargaining order. "In fashioning its remedies ... the Board
draws on a fund of knowledge and expertise all its own, and
its choice of remedy must therefore be given special respect
by reviewing courts." Gissel Packing, 395 U.S. at 612 n.32.
"Our essential task as a reviewing court is to assure ourselves
that the Board 'has considered the factors which are relevant
to its choice of remedy, selected a course that is remedial
rather than punitive, and chosen a remedy which can fairly be
said to effectuate the purposes of the Act.' " Caterair Int'l v.
NLRB, 22 F.3d 1114, 1120 (D.C. Cir. 1994) (quoting Peoples
Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C. Cir. 1980)).
Traction argues that the bargaining order was not justified
because (1) the union never had majority support, (2) there is
not substantial evidence to support a bargaining order, (3) the
Board failed adequately to explain the need for the bargain-
ing order, and (4) the Board failed to consider the effect of
employee turnover. We consider each argument in turn.
Majority Support
The Board found that a majority of the bargaining unit
supported the union prior to the election because eleven of
the twenty employees in the unit had signed cards designat-
ing the union as their "chosen representative in all matters
pertaining to wages, hours and working conditions." Claim-
ing that the Board should not have counted two of the eleven
authorization cards, Traction argues that the union never
enjoyed majority support.
One of the disputed cards was Anthony Hess's. In support
of its claim that this card should not have been counted,
Traction points to Hess's testimony that he had not read the
card before signing it, that he had not understood that by
signing he was authorizing the union, and that he had been
told that the only effect of signing would be that the union
could hold an election. The ALJ, however, discredited this
testimony, relying instead on Hess's earlier affidavit in which
he said that he had in fact read the card before signing.
Traction, 1999 WL 1186753 at *33. Finding that Hess had
both read and understood the card, the ALJ counted it.
Because Traction has offered nothing to suggest that the
ALJ's credibility determination is "patently insupportable,"
we have no basis for questioning his conclusion. See
Exxel/Atmos, Inc. v. NLRB, 28 F.3d at 1246.
The other disputed card was James Michener's. Michener
never testified, nor did any witness testify to having seen him
sign the card. The ALJ authenticated the card by comparing
the signature on it with Michener's signatures on two forms
in Traction's personnel files: his employment application and
a signed copy of the company's work rules. Traction, 1999
WL 1186753 at *33-34. Agreeing with the ALJ that the card
was authentic, the Board not only examined the two docu-
ments itself, but also compared the signature on the card to
Michener's W-4 federal income tax withholding form. Id. at
*2-3.
Not contesting the authenticity of the three documents on
which the ALJ and the Board relied, Traction argues that the
signatures on those documents have never been properly
authenticated. It relies on Federal Rule of Evidence
901(b)(3), which it says requires the Board to compare the
signature on a card to an authenticated signature, not just to
a signature on an authentic document. Rule 901 provides:
(a) General provision. The requirement of authentica-
tion or identification as a condition precedent to admissi-
bility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent
claims;
(b) Illustrations. By way of illustration only, and not by
way of limitation, the following are examples of authenti-
cation or identification conforming with the requirements
of this rule:
* * *
(3) ... Comparison by the trier of fact or by expert
witness with specimens which have been authenticated.
We do not share Traction's interpretation of Rule 901. Not
only is subparagraph (3) "by way of illustration only," but
Rule 901 "is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent
claims." Rule 901(a). Surely evidence that the signed docu-
ments came from Traction's business files and that the com-
pany relied on one of them to hire Michener and another to
withhold federal income taxes is "sufficient to support a
finding" that the signature appearing on them--James P.
Michener--is in fact Michener's. See Weinstein's Federal
Evidence s 901.05[2][b] at 901-26 (listing business records as
an illustration of a method for authenticating handwriting
specimens). For decades, moreover, the Board has treated
employee documents from an employer's personnel files as
genuine specimens for purposes of authenticating signatures
on authorization cards. See, e.g., Aero Corp., 149 NLRB
1283, 1287 (1964), enf'd 363 F.2d 702 (D.C. Cir. 1966); Heck's,
Inc., 166 NLRB 186 n.1 (1967).
Nothing in Be-Lo Stores v. NLRB, 126 F.3d 268 (4th Cir.
1997), on which Traction relies, persuades us otherwise. In
that case, the Fourth Circuit took the Board to task for
counting "highly questionable Union authorization cards,"
including thirteen cards "based upon [the ALJ's] comparison
of the signatures on the cards with the signatures on the
respective employees' W-4 forms." Id. at 279. But because
the court made this statement only after it had concluded that
a bargaining order was not warranted and because it indicat-
ed that the authorization card issue "only contribute[s] to our
concern that the Union's majority status was one of agency
construct, rather than grassroots support," id. at 280, we view
the statement as dictum. In any event, to the extent that Be-
Lo suggests that Rule 901 precludes authenticating signa-
tures by comparing them to signatures on authentic business
records including W-4 forms, we disagree and find that the
Board, consistent with long-standing policy, satisfied Rule 901
by comparing the signature on the challenged authorization
card with Michener's signature on the three authentic em-
ployment forms.
Substantial Evidence
Traction's second challenge to the bargaining order--that it
is not supported by substantial evidence in the record--
requires little discussion, for the Board's order easily satisfies
the standards we set forth in Skyline Distributors, Inc. v.
NLRB, 99 F.3d 403, 410-11 (D.C. Cir. 1996). There, we
summarized the factors justifying a bargaining order as fol-
lows:
"First, an unfair labor practice that is viewed as 'deliber-
ate' or 'calculated' is more likely to lead to a bargaining
order than one that is not. Second, much turns on the
significance of the interest being endangered. If the
employer's statements or acts can be characterized as
threatening either a significant economic interest, such
as retention of jobs, or a fundamental legal right, it is
more likely to lead to a bargaining order. Third, acts of
reprisal, particularly discharges, are considered to be
extremely effective in swaying votes and very difficult to
remedy. Not only is there a great deal of language to
this effect in Board opinions, but also the coincidence of
section 8(a)(3) violations and bargaining orders is nota-
ble. Fourth, promises to correct the grievance that led
to union organization are also considered particularly
effective. Finally, and most significantly, the vast major-
ity of bargaining order cases involve a series of unfair
labor practices rather than a single act of illegality."
Skyline, 99 F.3d at 411 (quoting Julius G. Getman & Bret-
rand B. Pogrebin, Labor Relations: The Basic Processes, Law
And Practice 76 (1988) (footnotes omitted)).
Beginning with the first factor, we have no doubt that
Traction's unfair labor practices were " 'deliberate' or 'calcu-
lated.' " The ALJ found that Traction's response to the union
organizing drive, particularly Adams' interrogation of Tryon
and Schiavone and Adams' threat that Traction would "close
down, if that's what it takes," were "clearly designed to nip
the Union's organizational drive in the bud." Traction, 1999
WL 1186753 at *21, 35. Adams' comments, moreover, threat-
ened "a significant economic interest," indeed perhaps the
employees' most significant economic interest--"retention of
jobs." (Factor 2). Not only did Traction threaten to close
down or hire others, but by firing Schiavone, the person most
identified with the union, the company made clear that by
voting for the union, employees risked their jobs. (Again,
Factor 2). Traction's "acts of reprisal, particularly [Schia-
vone's] discharge[ ]" in violation of section 8(a)(3) "are consid-
ered to be extremely effective in swaying votes and very
difficult to remedy." (Factor 3). Repeatedly interrogating
employees, Adams sought to learn what grievances led to the
union campaign, and both Adams and Cohen suggested that
they would correct those grievances and that employees
would get "bigger and better things" by rejecting the union.
Put another way, they "promise[d] to correct the grievance
that led to union organization." (Factor 4).
Finally, this case involved "a series of unfair labor practices
rather than a single act of illegality." (Factor 5). For
starters, Traction's response to the union organizing drive
was "immediate, swift, and retributive." Traction, 1999 WL
1186753 at *35. Summoning Schiavone to his office, Adams
interrogated him about his union activity, then fired him.
The company "did not stop there." Id. Adams twice interro-
gated Tryon, denied Tryon's raise, threatened to close the
Philadelphia warehouse, and imposed new and retributive
policies on Philadelphia employees. At two employee meet-
ings, Cohen committed additional unfair labor practices.
Taken together, the evidence reveals a company engaged in a
course of retribution designed not only to punish employees
who gave the union its strongest support, but also to intimi-
date other employees into voting against the union. And
contrary to Traction's argument, the effects of its actions
extended well beyond the Philadelphia warehouse. Id. at *36.
Such evidence more than sufficiently supports the bargaining
order. See Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162,
1176 (D.C. Cir. 1993) (affirming bargaining order where com-
pany's "large number of unfair labor practices, ... committed
by some of the top officials in the company, and ... directed
at numerous employees ... instilled a strong fear of union
representation in the employees.") (internal quotation marks
omitted).
Balancing
Before enforcing a bargaining order, "we require the Board
to explicitly balance three considerations: (1) the employees'
Section 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 violations of the Act." Vincent
Plastics, 209 F.3d at 738. Because of the Board's failure to
balance these factors, we have repeatedly refused to enforce
bargaining orders that have come before us in recent years.
In Avecor, for instance, we declined to enforce a bargaining
order because although "the ALJ briefly discussed the first
two factors," he never considered the third, i.e., why tradi-
tional remedies, including a re-run election, would have been
inadequate. 931 F.2d at 938. "The ALJ never explained,"
we said, "why the cloud created by these violations was likely
to linger." Id. Rejecting another bargaining order in Char-
lotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1078-1080
(D.C. Cir. 1996), we "searched the ALJ's decision but ...
found no explanation of why a fair election would not be
possible once the Company has been required to post notices
and reinstate the improperly discharged employees with back
pay." Id. at 1079.
In our most recent rejection of a bargaining order, Vincent
Plastics, neither the ALJ nor the Board had provided any
explanation for the order. Remanding the case with instruc-
tions to either provide an adequate justification or vacate the
bargaining order, we expressed our frustration with the
Board's continued recalcitrance: "What is ultimately dissatis-
fying about this familiar dance is not a sense that this court's
institutional integrity is undermined by the Board's refusal to
modify its behavior in response to operant conditioning, but
that those left in the lurch are precisely those who, in this
case, sought protection from the Board." Vincent Plastics,
209 F.3d at 739.
In this case, the ALJ explored in depth the need for the
bargaining order. After summarizing Traction's "immediate,
swift, and retributive" response to the union's organizing
effort, including its threats to close or hire other workers, as
well as the retaliatory section 8(a)(3) violations, the ALJ
discussed the effect of those actions on Traction's employees.
Traction, 1999 WL 1186753 at *35. The nature of Traction's
unfair labor practices, he concluded, combined with the unit's
size and the involvement of the two owners in the unfair labor
practices, had created fear so pervasive that a re-run election
would not fairly reflect the views of the majority of the unit.
Id. at 35-36. Adopting the ALJ's recommendation and im-
posing a bargaining order, the Board rejected Traction's
argument that "an effective alternative to a bargaining order"
would be for a Traction representative to "read the notice to
affected employees prior to the running of a second election."
Id. at 1 n.2. "[S]uch a remedy," the Board explained, would
be "insufficient to cure the gross interference with free choice
in the election in this case." Id.
The Board's explanation suffers from none of the deficien-
cies that led to our rejection of bargaining orders in earlier
cases. For instance, in Avecor the Board never explained
"why the cloud created by [the employer's] violations was
likely to linger." 931 F.2d at 938. Here, the ALJ carefully
explained that the section 8(a)(3) violations, particularly Trac-
tion's threats to close the warehouse and its discriminatory
discharge of Schiavone, were not only " 'hallmark violations'
of the most pernicious type," but given the small size of the
unit, likely not to have been forgotten. Traction, 1999 WL
1186753 at *35. Moreover, as the ALJ explained, the fact
that the union, having once enjoyed majority support, gar-
nered only two votes in the election provided additional
evidence that Traction's unfair labor practices were both
particularly effective and "likely to linger." Avecor, 931 F.2d
at 938. In Charlotte Amphitheater, we "found no explanation
of why a fair election would not be possible once the Company
has been required to post notices and reinstate the improper-
ly discharged employees with back pay." 82 F.3d at 1079.
But here, the ALJ found that the magnitude of Traction's
unfair labor practices, the small size of the unit, and the
involvement of the company's two owners made its "campaign
to undermine employee support for the Union through fear
and intimidation" so successful that it was unlikely that
traditional remedies would "eras[e] the effects" of that cam-
paign. Traction, 1999 WL 1186753 at *36.
In view of the Board's thorough discussion, and keeping in
mind our deferential standard of review, Gissel Packing, 395
U.S. at 612 n.32, we cannot imagine what more we could
require the Board to say. Indeed, asked at oral argument
what else the Board should have said, Traction's counsel had
no response. In the end, we think the words of Gissel aptly
describe this case: Having "succeeded in undermining [the]
union's strength and destroying the laboratory conditions
necessary for a fair election, [Traction would] see no need to
violate a cease-and-desist order by further unlawful activity.
The damage [had been] done." Id. at 612.
Employee Turnover
We turn finally to Traction's argument that the Board
failed to consider the effect of employee turnover between the
time the unfair labor practices occurred and the issuance of
the bargaining order. "[W]e have repeatedly instructed the
Board to determine the appropriateness of a Gissel bargain-
ing order in light of the circumstances existing at the time it
is entered" rather than at the time of the election. Flamingo
Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1171 (D.C. Cir.
1998).
The Board argues that Traction waived this issue by failing
to raise it during the administrative proceedings. Claiming
that it had raised the issue, Traction points out that it
excepted to the ALJ's "failure to consider the effect of
mitigating circumstances on the need for a bargaining order."
According to the company, this exception "put the Board on
notice that Traction was challenging, inter alia, the ALJ's
failure to consider the effect of employee turnover." We
disagree. How could the Board have known that by "mitigat-
ing circumstances" Traction meant employee turnover? Not
only did Traction fail to mention employee turnover in its
brief to the Board, but the brief contained no citation to the
pages of the record that the company now contends support
its argument that employee turnover actually occurred.
We expect much of the Board, but we have never required
it to sift through a six-hundred plus page record to find
evidence supporting an argument that a petitioner never
made. See Charlotte Amphitheaters 82 F.3d at 1080 ("[T]he
Board has no affirmative duty to inquire whether employee
turnover or the passage of time has attenuated the effects of
earlier unfair labor practices...."). Because Traction does
not claim that some "extraordinary circumstance" explains its
failure to raise employee turnover, we may not consider the
issue. See 29 U.S.C. s 160(e) ("No objection that has not
been urged before the Board, its member, agent, or agency,
shall be considered by the court, unless the failure or neglect
to urge such objection shall be excused because of extraordi-
nary circumstances.").
IV
With the exception of that portion of the order requiring
Traction to allow personal use of company vans, Traction's
petition for review is denied and the Board's cross-petition for
enforcement is granted.
So ordered.
Randolph, Circuit Judge, concurring: The Board thinks it
an unfair labor practice for an employer, during an election
campaign, to ask employees what they find wrong at the
workplace. The Board's theory is that in making the solicita-
tion, the employer implies that something will be done to
correct whatever problems are identified, which in turn im-
plies that the employees do not need a union. See Reliance
Elec. Co., 191 N.L.R.B. 44, 46 (1971), enforced, 457 F.2d 503
(6th Cir. 1972). I have my doubts about this theory, but as
the court points out, the company did not challenge it in this
case. See op. at 13. The company's argument was that the
evidence did not make out a violation, an argument the
court's opinion rightly rejects. See id. at 14.