Douglas Foods Corp. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 7, 2001 Decided June 12, 2001

No. 00-1241

Douglas Foods Corp.,
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

Theodore R. Opperwall argued the cause and filed the
briefs for petitioner.

David A. Seid, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Leonard R. Page, General Counsel, John H. Ferguson, Asso-
ciate General Counsel, Aileen A. Armstrong, Deputy Associ-

ate General Counsel, and Peter Winkler, Supervisory Attor-
ney.

Before: Sentelle, Randolph and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Douglas Foods Corporation
("DFC") petitions for review of an order of the National
Labor Relations Board ("NLRB") finding that it committed
several unfair labor practices and ordering substantial relief.
We uphold the bulk of the NLRB's unfair labor practice
findings with the exception of those related to the alleged
"sham" sales of catering trucks and routes. The NLRB's
findings in relation to these transactions are inadequate, and
the accompanying restoration order is beyond the scope of
the Board's remedial authority. We also vacate the NLRB's
bargaining order, and remand to the NLRB for further
proceedings not inconsistent with this opinion.

I. Background

A. Relevant Facts

Petitioner DFC, a mobile food catering business in Garden
City, Michigan, runs a "wholesale" operation that supplies
catering trucks operated by other firms. Throughout much
of its history, DFC also operated as a "retail" caterer, owning
and operating catering trucks which sold prepackaged foods
to employees at local businesses along designated catering
routes.

In mid-1995, DFC operated approximately twelve "hot"
trucks and twelve "cold" trucks. "Hot" trucks serve hot and
cold food and are operated by a driver and a cook. Cold
trucks do not have cooks and sell only cold food. Each truck
services a prearranged route on a regular schedule. At the
time, DFC also supplied several catering trucks run by
independent owner-operators. All of the trucks--DFC's and
those of the owner-operators that operated out of DFC's
facility--sold food prepared by Ezzo's Food, another company

owned by DFC president and founder Douglas George and
his wife.

At the time, DFC's drivers and cooks were divided between
designated employees and lease operators. The former re-
ceived hourly wages and operated off of a time clock. The
latter payed daily lease fees to DFC and would keep their net
revenues. Lease fees ranged between $0 and $150 per day.
George expressed a preference for lease operators over em-
ployees because he believed that they had a greater financial
stake in satisfying their customers. It was difficult to retain
lease operators, however, which prompted DFC to hire more
drivers as employees. Whether drivers were lease operators
or employees, as a general rule their trucks were emblazoned
with the DFC logo and housed at the DFC facility. DFC also
controlled the menus, retail prices, and catering routes, and
imposed a dress code on drivers.

For a variety of reasons, some of which are disputed,
George decided in 1995 to extricate DFC from the "retail"
side of the catering business and expand operations on the
"wholesale" side. Pursuant to this plan, in October 1995
George sold all twelve of DFC's cold trucks to JK Food
Service, LLC, a company established by John Schemanske,
George's brother-in-law and then-General Manager of DFC.
While under new ownership, these trucks maintained the
DFC logo and menu. DFC contends that it also sought
buyers for its twelve hot trucks and routes at this time, but
without any success.

B. The Unionization Effort

In December 1995, DFC hired Debra Beck as a driver.
Shortly thereafter, Beck contacted the Local 876 of the
United Food and Commercial Workers Union ("Union") about
organizing a campaign for representation. Over the next
several months, Beck, her cook Michelle Benkert, and a
handful of other DFC employees distributed union authoriza-
tion cards and encouraged DFC members to sign them.

In June 1996, George learned of "problems" among his
employees. Around that time, DFC's sales manager, William

Tofilski, questioned Beck about union activities. Over the
next month, Tofilski had several conversations with DFC
employees in which he disparaged union organizational ef-
forts, asked who had signed authorization cards, and implied
that George would retaliate in some form were the employees
to unionize because DFC could not afford to meet likely union
demands. Douglas Foods Corp., 330 NLRB No. 124, slip op.
at 7-9 (Mar. 13, 2000). Tofilski recounted that in the 1970s,
when DFC was first unionized, George sold off routes to
prevent unionization, and suggested George would do so
again.

By July 3, the Union had nineteen signed authorization
cards and filed a petition with the NLRB seeking to repre-
sent the employees of "Douglas Foods/J&K Foods." The
Union sought recognition from DFC, but DFC refused. At a
subsequent NLRB representation hearing, DFC informed the
Union that the unionization efforts would not forestall its
plans to sell the twelve hot trucks and routes. In response to
this and Tofilski's prior remarks, the Union filed unfair labor
practice charges against DFC.

On July 22, before the complaints were filed, DFC agreed
to an election covering all DFC hourly and lease drivers,
cooks, mechanics, maintenance and store employees. Prior to
the election, George held several mandatory-attendance meet-
ings with DFC drivers. At one meeting, George explained
that lease operators would "have a problem" maintaining
their relationship with DFC should the company unionize.
Douglas Foods, 330 NLRB No. 124, slip op. at 11. Prior to
the election George also met with a cook, Ebtisam Kassouma,
said he would raise her salary, and encouraged her to vote
against union representation.

The election was held on August 23. Sixteen employees
voted against the Union, twelve voted in favor with two
challenged ballots. The Union also lost the election at JK
Foods, 11-1. Id. at 12. Upon learning of the results, two
DFC employees who had actively supported the Union quit,
and the Union filed an additional unfair labor practice charge

against DFC and requested that the NLRB issue a bargain-
ing order.

Shortly after the election, George resumed his efforts to
sell DFC hot trucks and routes. According to DFC, George
was now willing to sell trucks and routes individually or in
small groups, rather than in large groups or as a whole (as he
had done with the cold trucks). In September, George
announced that Tofilski and Mary Jo Merollis, Tofilski's sister
and a prior DFC employee, had each agreed to purchase
three hot trucks and routes. George informed his employees
that this did not threaten their jobs, and that they would
likely be retained as were the cold truck workers when they
were sold to JK Food Service. Id. Although the announce-
ment was made in late September, Tofilski and George did
not sign the formal papers (dated October 21, 1996) until
January 1997. Under the agreement, DFC financed the
truck purchases and Tofilski was required to make weekly
payments and sign a security agreement. He also had to
guarantee that he would purchase 75 percent of his food from
DFC. So long as Tofilski's trucks were operated in accor-
dance with DFC guidelines, DFC agreed not to compete with
his new business along its routes. Merollis executed similar
agreements with DFC on January 31, 1997, but was later
excused from the supply agreement.

In early October, DFC revised its time clock policy after it
was fined by the Department of Labor for violating the Fair
Labor Standards Act. Id. at 5. That month, on two separate
occasions, Michelle Benkert punched out late in violation of
the policy. Benkert received a warning after the first viola-
tion. After the second she was fired. DFC cited the time
clock violations and other performance issues about which she
also had been warned. Benkert and the NLRB claim that
the time clock violations were a pretext for firing her due to
her union activity.

On November 22, Pam Cummins, an independent operator
of a cold truck route purchased in 1995, purchased the hot
truck and hot truck route driven by Debra Beck. DFC
financed the purchase in much the same manner as the prior

hot truck sales, though Cummins was required to purchase
food exclusively from DFC. That day, George informed Beck
that the truck and route had been sold and that she would be
laid off. George did not inform her that JK Food Service was
advertising for catering route operators. Id. at 14, 16. Cum-
mins hired a new driver for the truck and retained the cook
who worked with Beck. Cummins returned the truck and
route in February 1997 because she was unable to make a
profit on it, but DFC then resold it to another route operator.
By mid-1997, DFC had sold all of its hot trucks and routes
and was completely out of the "retail" catering business.
Most of the trucks were sold to present route drivers with
financing arrangements and supply agreements similar, but
not identical, to those adopted by Tofilski and Cummins.

C. Proceedings Below
On March 6, 1998, an NLRB Administrative Law Judge
("ALJ") ruled on the Union's complaints. The ALJ found
that DFC had committed numerous unfair labor practices in
violation of sections 8(a)(1) and (3), and sections 2(6) and (7)
by:
. creating the impression that DFC was surveilling
employee union activities;

. threatening employees for engaging in union activi-
ties;
. interrogating employees about their union activities;

. suggesting that unionization would "be futile";

. threatening to retaliate against employees who testi-
fied about unfair labor practices;

. giving an employee a pay raise prior to the election
while suggesting that she should vote against the
Union;

. intimidating, disciplining, retaliating against, and lay-
ing off Beck;
. firing Benkert;

. closing/selling off the hot truck operations; and

. terminating the employment of some or all of the hot
truck drivers and cooks.

Id. at 24. The ALJ further found that DFC's truck and route
sales were "sham" transactions motivated by anti-union ani-
mus. Id.

The ALJ concluded that "[a]t all times since July 3, 1996"
the Union was the exclusive and appropriate representative of
DFC employees because a majority of DFC employees had
signed union authorization cards. Id. The ALJ held that
DFC's unfair labor practices were "so serious and substantial
in nature" that there could not be a fair union election relying
solely on traditional remedies. Id. Based on this conclusion,
the ALJ ordered DFC to cease and desist from its unfair
labor practices, offer to reinstate Beck and Benkert with back
pay, "reestablish" its hot truck operations, offer reinstate-
ment to all hot truck drivers and cooks who were terminated
when their routes were sold, and recognize and bargain with
the Union as the exclusive bargaining representative of DFC
employees. Id. at 24-25.

DFC appealed. The NLRB upheld the ALJ's findings in
all major respects. The Board was unanimous that DFC
engaged in numerous unfair labor practices, including the
intimidation of its employees and other efforts to discourage
unionization. Member Hurtgen dissented with regard to four
findings. First, Hurtgen found "no threat" in George's com-
ment to lease operators that their relationship with DFC
would change upon unionization, as this was based on his
good faith belief that the lease operators were independent
contractors. Id. at 4 (Member Hurtgen, dissenting). Second,
he found nothing unlawful about the "interrogation" of Lisa
Bowman about signing a union authorization card as she
initiated the discussions with management and concluded that
nothing George said was threatening or coercive. Id. Third,
Hurtgen did not find the termination of Benkert to be
unlawful, particularly because she had received warnings and
the new time clock policy was prompted by a Labor Depart-
ment enforcement action that cost DFC several thousand
dollars. Id. at 4-5. Fourth, Hurtgen did not agree with the
majority of the Board that DFC committed the sort of
"hallmark" violations that would justify a bargaining order
under NLRB v. Gissel Packing Co. Id. at 5. Hurtgen did

not dispute the finding that the hot truck and route sales
were "sham" transactions.

The Board unanimously adopted the bulk of the ALJ's
ordered remedies, including the order that DFC reestablish
its hot truck operations and reinstate the laid-off hot truck
drivers and cooks. The Board was split on the bargaining
order. A majority upheld the order, while Member Hurtgen
dissented, arguing that "traditional remedies" and a cease
and desist order would be sufficient to remedy the situation
and allow for a fair union election to take place. Id.

II. Unfair Labor Practices

Petitioner DFC challenges several of the NLRB's unfair
labor practice findings and other factual determinations.
Specifically, DFC contests the findings that it violated Na-
tional Labor Relations Act ("NLRA") section 8(a)(3) by firing
Benkert and laying off Beck, and that, through George and
Tofilski, it violated NLRA section 8(a)(1) by monitoring and
investigating employees' union-related activities, making dis-
couraging or threatening statements about the potential im-
pact of unionization, and interfering with the exercise of
NLRA-protected rights by giving an employee a pay raise
just prior to the unionization vote.

Under section 8(a)(1) of the NLRA, 29 U.S.C. s 158(a)(1), it
is an unfair labor practice for an employer "to interfere with,
restrain, or coerce employees in the exercise" of their rights
guaranteed under NLRA section 7, 29 U.S.C. s 157. Under
NLRA section 8(a)(3), 29 U.S.C. s 158(a)(3), it is an unfair
labor practice "to encourage or discourage membership in any
labor organization" through discriminatory employment deci-
sions. As interpreted by the NLRB and federal courts,
section 8(a) prohibits various anti-union conduct including,
among other things, coercively interrogating employees about
union activities, Perdue Farms, Inc. v. NLRB, 144 F.3d 830,
835 (D.C. Cir. 1998), threatening retaliation or other adverse
actions in response to union organizing activity, Allegheny
Ludlum Corp. v. NLRB, 104 F.3d 1354, 1364-66 (D.C. Cir.
1997), and seeking to influence union activities by granting

benefits to employees, General Electric Co. v. NLRB, 117
F.3d 627, 636-37 (D.C. Cir. 1997).

Judicial review of NLRB unfair labor practice findings is
limited. See, e.g., Avecor, Inc. v. NLRB, 931 F.2d 924, 928
(D.C. Cir. 1991). The NLRB's conclusions of fact are conclu-
sive if "supported by substantial evidence on the record
considered as a whole." 29 U.S.C. s 160(e). "If there is
substantial evidence to support the Board's conclusions, we
will uphold the Board's decision even if we would have
reached a different result had we considered the question de
novo." Synergy Gas Corp. v. NLRB, 19 F.3d 649, 651 (D.C.
Cir. 1994). An ALJ's credibility determinations, once
adopted by the Board are due particular deference, and
"must be accepted by this court 'unless they are patently
insupportable.' " Parsippany Hotel Mgmt. Co. v. NLRB, 99
F.3d 413, 425 (D.C. Cir. 1996) (quoting Exxel/Atmos, Inc. v.
NLRB, 28 F.3d 1243, 1246 (D.C. Cir. 1994) ("Exxel/Atmos
I")).

Applying this highly deferential standard of review, we
uphold the bulk of the Board's unfair labor practice findings.
Petitioner raises questions about several of the ALJ's conclu-
sions, and presents evidence that could well justify contrary
conclusions by a finder of fact. Nonetheless, the Board's
unfair labor practice findings are supported by substantial
evidence in the record, which is all that the law requires.
The NLRB's only findings which are notably deficient are
those related to the alleged "sham" sales of catering trucks
and routes discussed below.

III. "Sham" Sales & Reestablishment Order

Petitioner DFC specifically objects to the NLRB's finding
that all of its sales of hot trucks and catering routes were
"sham" sales motivated by an intent to prevent DFC union-
ization. DFC also challenges the restoration order issued by
the NLRB to redress this alleged unfair labor practice.
While anti-union animus may well have motivated the decision
to sell the hot trucks and routes, there is not substantial
evidence to support the NLRB's conclusion that the sales

were "sham" transactions. The Board's findings are incom-
plete and there is inadequate attention to aspects of the sales
which cast doubt on the "sham" characterization. Even were
the NLRB's findings adequate in this regard, we have grave
doubts that the restoration order could be upheld. We have
no doubt, however, that this portion of the Board's remedy
cannot be justified on the current record and must be vacat-
ed.

This Court generally defers to the factual findings of the
NLRB, as discussed above. See supra Part II. However,
this Court does not "merely rubber-stamp NLRB decisions,"
Avecor, 931 F.2d at 928, as we must "consider not only the
evidence supporting the Board's decision but also 'whatever
in the record fairly detracts from its weight,' " Schaeff, Inc. v.
NLRB, 113 F.3d 264, 266 (D.C. Cir. 1997) (quoting Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). Where
the NLRB adopts a conclusion that is without support in the
record, or which conflicts with the record "considered as a
whole," we may reverse. See 29 U.S.C. s 160(e) (Board
conclusions of fact are conclusive if "supported by substantial
evidence on the record considered as a whole").

DFC sold all of the hot trucks and routes between October
1996 and March 1997. Douglas Foods, 330 NLRB No. 124,
slip op. at 16. Although neither the ALJ nor the Board
catalogs all of the sales, the ALJ's decision reports that all of
the trucks were initially sold to former DFC employees or
supervisors. All of the truck drivers and cooks employed on
the trucks at the time of the sales, save for Debra Beck, were
hired by the truck purchasers. Id. The timing of the sales,
DFC management's anti-union sentiments, and "the nature of
the transactions themselves" led the ALJ to conclude that all
of the sales "were not arms-length transactions and were
'shams' motivated in large part by DFC's desire to thwart the
Union's efforts to overturn the results of the August 1996
election and obtain a bargaining order from the NLRB." Id.
On this basis the ALJ ordered DFC to reacquire the sold
trucks and routes, and reinstate those employees who were
terminated from DFC as a result of the sales. Reacquisition
would not be difficult, the ALJ reasoned, because it would

only require "paper transactions." Id. at 25. The Board
adopted this conclusion without comment.

Reviewing the "sham" sale determinations is difficult, as an
initial matter, due to the ALJ's incomplete treatment of the
subject. The ALJ discusses several of the truck and route
sales at length. Others, the ALJ does not discuss at all.
According to the ALJ, DFC had twelve hot trucks and routes,
and sold all of them as part of "one plan to eliminate the
bargaining unit." Id. at 18. Yet the ALJ does not identify
the basis for this conclusion with respect to all of the truck
sales, leaving us to wonder what it was about "the nature of
the transactions themselves" that led the ALJ to its conclu-
sion that all of the sales were "sham transactions."

The incomplete analysis is significant because, despite their
similarities, the sales were not identical, cookie-cutter trans-
actions. Different trucks and routes were sold on different
terms. As with lease operators, different purchasers paid
different monthly installments. While most purchasers
signed supply agreements with DFC, Sheila Thomas did not,
id. at 18 & n.37, and Merollis was also released from the
supply agreement covering the three trucks she purchased as
well, id. at 18. With further respect to Merollis the ALJ
found and the Board affirmed that she "has her own workers
compensation insurance, product liability insurance, accoun-
tant, tax identification number, and other indicia of indepen-
dence from DFC." Without further reasoning or explanation,
the ALJ proceeded to conclude, and the Board to affirm,
"that the totality of the record indicates that the sale to her
was a sham transaction motivated in large part by DFC's
desire to thwart the Union." Id. We are not required to
rubberstamp a conclusory reference to "totality of the record"
without some further expressed reasoning or other record
support for the otherwise inexplicable conclusion. See Peo-
ples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C. Cir. 1980).

The present case is easily distinguishable from prior in-
stances in which we have upheld NLRB findings of "sham"
transactions motivated by anti-union animus. In Fugazy

Continental Corp. v. NLRB, 725 F.2d 1416 (D.C. Cir. 1984)
and O'Dovero v. NLRB, 193 F.3d 532 (D.C. Cir. 1999), we
affirmed NLRB findings of "sham transactions" motivated by
anti-union animus. In each of these cases, the transactions
occurred between the employer and an "alter-ego" that al-
lowed the "disguised continuance" of the employer's opera-
tions. Fugazy, 725 F.2d at 1419. Such a finding of "alter-
ego" status can be based upon "substantial identity of man-
agement, business purpose, operation, equipment, customers,
supervision and ownership between the old entity and its
successor." Fugazy, 725 F.2d at 1419. While "common
ownership is not an absolute prerequisite to a finding of alter
ego status," id. at 1420, it weighs heavily in the alter ego
determination. In O'Dovero, for example, the employer con-
trolled two companies and closed one to prevent unionization,
while shifting its business to the other.

Neither the ALJ nor the Board found that the trucks and
routes were purchased by an "alter ego" of DFC. On the
present record, such a finding could not be sustained. Sever-
al factors point strongly against such a finding. In both
Fugazy and O'Dovero, there was little evident purpose to the
transaction other than to rid the employer of pro-union
employees without altering the employer's underlying busi-
ness. Here, however, DFC's employees retained their jobs--
albeit with different employers--and DFC altered the nature
of its business, eliminating "retail" functions.

While it is likely that the lack of a record-supported alter-
ego finding would alone render the NLRB's restoration order
reversible, the Board's failure to consider the feasibility and
impact of the remedial order makes it certain. While the
ALJ and NLRB are convinced that the truck and route sales
were no more than paper transactions, a review of the
transactional documents makes clear that ownership and
control of the trucks changed hands. The ALJ notes that
"[o]ne must assume that the purchasers received something
of value in exchange for [their] weekly payments." Douglas
Foods, 330 NLRB No. 124, slip op. at 25. Precisely. It is
called "title." Whatever the motivation for the sales, it is
uncontestable that title has passed to new owners for at least

some of the sold trucks. This alone suggests the sales, or at
least some of them, were not "sham transactions." Cf. Na-
perville Ready Mix, Inc. v. NLRB, 242 F.3d 744, 753 (7th Cir.
2001) (noting Board did not invoke "sham transaction" doc-
trine where legal transfer of title was undisputed). It is also
sufficient to require remand of the restoration order.

Neither the ALJ nor the NLRB ever considered whether
reacquisition of the sold trucks and routes is factually possi-
ble, nor whether an order for their reacquisition is within the
legal authority of the Board--a proposition which we frankly
doubt. The NLRB's casual treatment of the implications of
its order is startling. Even if the truck sales were motivated
by anti-union animus, title passed to the truck purchasers,
many of whom were among the employees the Board is
purporting to protect. Be that as it may, we return to the
more fundamental question of the Board's lawful authority to
enter the remedy at all.

When the NLRB orders an employee to be reinstated, its
order typically requires that the company offer reinstatement,
as DFC is required to do here for those employees laid off as
a result of the sales. This is the limit of the NLRB's
equitable power--it may order the employer to reinstate a
former employee, but it cannot order the employee to take
back the position and return to work. It seems that the
analogous result here would be for the NLRB at most to
order DFC to offer to repurchase trucks and routes, not to
require restoration of the status quo ante. Here, the NLRB
ordered DFC to "restore and resume [its] hot truck catering
operations as they existed prior to October 1, 1996" within
fourteen days of the order, Douglas Foods, 330 NLRB No.
124, slip op. at 6, without any explanation of its authority to
enter such order or DFC's ability to carry it out.

In its brief, the NLRB argues for the first time that the
contracts contained boiler-plate language excusing either par-
ty from obligations due to intervening circumstances, such as
actions or proceedings against one of the parties or the
enactment of regulation. Brief for the NLRB at 58. We do
not consider this argument as it was not relied upon by the

Board or ALJ. "We cannot sustain agency action on grounds
other than those adopted by the agency in the administrative
proceedings." MacMillan Publ'g Co. v. NLRB, 194 F.3d 165,
168 (D.C. Cir. 1999). Even were this language referred to in
either the ALJ or NLRB opinion, it would seem insufficient
to allow for the forced sale of trucks and routes to DFC.
Even in its brief, the NLRB cites no authority for this
proposition.

The NLRB portrays this part of its order as a run-of-the-
mill requirement that the employer undo the effects of dis-
criminatorily motivated changes. Yet the NLRB cites no
case in which similar relief was ordered in similar circum-
stances. In O'Dovero, there was no dispute that the closed
business was never formally dissolved and "could resume a
project 'tomorrow' if it so chose." 193 F.3d at 537. As this
Court concluded, "the Board's order require[d] no more than
a return to the status quo ante with respect to 'work assign-
ment decisions.' " Id. at 539 (citation omitted). This is
hardly analogous to the forced repurchase of independently
owned assets. With the exception of Beck, all of DFC's
former drivers and cooks are now either truck owner-
operators or their employees, Douglas Foods, 330 NLRB No.
124, slip op. at 16, and the NLRB has substantial authority to
address DFC's unfair labor practices through more tradition-
al forms of relief. For these reasons, we vacate the Board's
finding that the truck and route sales were "sham" transac-
tions along with the Board's restoration order.

IV. Relief for Beck and Benkert

Petitioner specifically challenges the award of relief to
Beck and Benkert due to their alleged dishonesty during the
unfair labor practice proceedings. In his decision, the ALJ
found that some of Beck and Benkert's testimony was inaccu-
rate and "suspicious." See id. at 13 n.23, 21 n.41. Due to
these findings, DFC maintains that Beck and Benkert should
not be entitled to any relief, let alone reinstatement and
backpay. While we share DFC's concern that NLRB pro-
ceedings not be tainted with false or misleading testimony, we

find no basis for vacating the Board-ordered remedies on this
account.

As in ABF Freight Sys., Inc. v. NLRB, the issue presented
by DFC's petition "is not whether the Board might" bar relief
to employees who offer false testimony, "but whether it must
do so." 510 U.S. 317, 323 (1994). In ABF, the Supreme
Court answered in the negative. While the Board may be
under an obligation to consider the veracity of witnesses in an
unfair labor practice proceeding, it is under no obligation to
foreclose relief to all those who offer inaccurate testimony or
otherwise compromise the integrity of Board proceedings.
Whether to penalize a party for such misconduct, rather than
defer to other potential civil and criminal remedies, is a
matter committed to the Board's "broad discretion." Id. at
325. Therefore, this portion of DFC's petition for review is
denied.

V. Bargaining Order

The NLRB concurred with the ALJ that a bargaining
order was "appropriate and necessary" to remedy the severe
unfair labor practices committed by DFC. Douglas Foods,
330 NLRB No. 124, slip op. at 3. This Court generally gives
the NLRB a wide berth in determining whether given actions
constitute unfair labor practices or are severe enough to
constitute "hallmark violations" of the Act that would justify
such an order. However, "a bargaining order is not a snake-
oil cure for whatever ails the workplace; it is an 'extreme
remedy.' " Avecor, 931 F.2d at 938-39 (citation omitted).
This Court does not--indeed cannot--excuse the Board's
failure to fulfill its legal requirements to consider certain
elements and provide a reasoned explanation for its decision.
See, e.g., Peoples Gas, 629 F.2d at 45. Where the Board fails
to discharge its obligation to consider the proper factors and
provide a reasoned explanation, this Court has no choice but
to remand to the Board for further proceedings, if not simply
invalidate the offending portions of the Board's order. Such
is the case here.

 Before entering this extreme remedy, the NLRB must
carefully weigh several factors. Specifically,

an affirmative bargaining order ... must be justified by
a reasoned analysis that includes an explicit balancing of
three considerations: (1) the employees' s 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 Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 738
(D.C. Cir. 2000). Failure to conduct this analysis provides
sufficient grounds to vacate and remand a bargaining order,
regardless of whether substantial evidence supports the
NLRB's conclusions that DFC engaged in "hallmark" unfair
labor practices and a majority of DFC employees indicated
their support of the Union by signing union authorization
cards.

While the NLRB devotes the lion's share of its opinion to
defending the bargaining order, it still fails to conduct the
necessary analysis. Of the three factors the Board must
consider, the Board and ALJ devote a reasonable amount of
space to the third, and some implicit consideration of the
second. The Board provides little else of substance. It
mentions the first factor--whether the bargaining order im-
pinges upon the employees' s 7 rights--and claims to consid-
er it, but nothing resembling consideration follows. Cf. Ave-
cor, 931 F.2d at 938 (a "promising topic sentence" without
more does not constitute reasoned explanation).

In the place of analysis, the NLRB substitutes extensive
quotation from NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). Douglas Foods, 330 NLRB No. 124, slip op. at 3
(quoting Gissel, 395 U.S. at 612-13). Rather than follow this
Court's repeated guidance on the proper analysis, the Board
majority merely asserts that consideration of employees' s 7
rights is inherent in any Gissel-inspired analysis. Id. ("In
sum, the Gissel opinion itself reflects a careful balancing of
the employees' Section 7 rights 'to bargain collectively' and 'to
refrain from' such activity."). This cannot do. The NLRB

cannot discharge its obligation merely by citing the appropri-
ate authority and averring that it gave proper consideration.
It actually must consider the factors as they apply to the
instant case, and explain the basis for its conclusions. In the
instant case the Board may have devoted greater effort to
satisfying this Court's demand for a reasoned explanation
than in prior decisions, but it has yet to clear the bar--it is
not even close.

The Board further errs by failing to account for the
changes at DFC following the 1996 union election. By the
time of the NLRB proceedings, DFC no longer maintained
"retail" operations, and fewer than five of the employees
listed on the voting list for the union election in 1996 were
still in DFC's employ. Some of this turnover was no doubt
due to the truck and route sales. Some also resulted from
other factors unrelated to DFC's unfair labor practices. As
things stand now, we question whether DFC has a labor force
that would allow for the reasonable imposition of such an
order, and the Board's order provides us with no answer.

The law is clear that the Board is not free to disregard
employee turnover when issuing a bargaining order "unless it
finds that the employer's practices are particularly flagrant."
Avecor, 931 F.2d at 937. The alleged abuses must be far
more drastic than those merely required to justify a bargain-
ing order in the first place--so-called "category I" abuses as
opposed to "category II" abuses. In cases, such as this,
where only category II abuses are found, "the Board must
carefully consider employee turnover." Id. (emphasis added).
The mere assertion that DFC should not profit from its own
unfair labor practices does not amount to consideration of
employee turnover, let alone "careful consideration."

The NLRB attempts to justify its failure to consider the
changed circumstances on the grounds that many of the
changes resulted from the unfair labor practices at issue in
this case. The NLRB opposes taking such changes into
account because an employer should not be able to rely upon
unlawful, anti-union acts to defeat a bargaining order.
NLRB v. Gordon, 792 F.2d 29, 34 (2nd Cir. 1986) ("It would

defy reason to permit an employer to deflect a Gissel bargain-
ing order on the ground of employee turnover when that
turnover has resulted from the employer's unlawful dis-
charge[s]"). Be this as it may, the NLRB was required to
consider changed circumstances no matter what their cause.
As Gissel instructs, "effectuating ascertainable employee free
choice [is] as important a goal as deterring employer misbe-
havior." Gissel, 395 U.S. at 614. Moreover, in selecting a
remedy for NLRA violations, the NLRB must select "a
course that is remedial rather than punitive, and [choose] 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, 629 F.2d at 42). The Board
cannot allow its desire to stop a company from profiting from
an unfair labor practice to eclipse a concern for effectuating
employees' right to choose their representation.

In remanding the NLRB's decision to impose a bargaining
order, we cannot help but feel a sense of dEjA vu.

The Board, inexplicably, has once again defied the law of
this circuit and failed to offer an adequate justification
for the bargaining order sanction imposed against [DFC].
We therefore find ourselves in the all-too-familiar posi-
tion of having to remand this case to the Board for
adequate justification of the proposed affirmative bar-
gaining order, thus further delaying relief for the em-
ployees the Board purports to protect.

Vincent Indus. Plastics, 209 F.3d at 731. On no fewer than
seven occasions in the past seven years alone we have re-
manded inadequately justified bargaining orders. Id.; Flam-
ingo Hilton-Laughlin v. NLRB, 148 F.3d 1166 (D.C. Cir.
1998); Exxel/Atmos, Inc. v. NLRB, 147 F.3d 972 (D.C. Cir.
1998) ("Exxel/Atmos II"); Lee Lumber & Building Material
Corp. v. NLRB, 117 F.3d 1454 (D.C. Cir. 1997) (per curiam);
Skyline Distrib. v. NLRB, 99 F.3d 403 (D.C. Cir. 1996);
Charlotte Ampitheater Corp. v. NLRB, 82 F.3d 1074 (D.C.
Cir. 1996); Exxel/Atmos I, 28 F.3d at 1243. "Eight is
enough." Exxel/Atmos II, 147 F.3d at 979 (Sentelle, J., con-
curring). See also Caterair, 22 F.3d at 1123 ("Five times in

the past fourteen years this court has remanded such orders
to the Board with a request for explanation as to why....
This case makes it an even half-dozen. We must assume the
Board will deign to provide the necessary explanation at some
point in order to obtain enforcement.").

Time and again this Court has been required to overturn
NLRB orders that violate the explicit requirements of our
precedent. "Case law in our circuit is as clear as it could be
on this question. The Board, however, continues to ignore
us. We continue to reverse." Lee Lumber, 117 F.3d at 1462.
"We persist not out of pique but from a sense that it is our
duty to ensure that the Board adheres to its statutory
mandate." Caterair, 22 F.3d at 1123. The Board's consis-
tent refusal to fulfill its legal obligation to provide sufficient
justification for its bargaining orders will not prevent us from
fulfilling our obligation to apply the law. So long as the
Board persists on its current course we have no choice but to
remand each offending order. "We reiterate [this] sentiment
here, hopefully for the final time." Exxel/Atmos I, 28 F.3d at
1249.

VI. Conclusion

For the reasons above, we grant the petition for review in
part, and deny in part. We vacate the Board's conclusion
that DFC committed unfair labor practices by selling catering
trucks and routes. We also vacate the accompanying restora-
tion order and bargaining order, and remand to the Board for
further proceedings not inconsistent with this opinion. With
respect to all other issues, including those not discussed
expressly herein, the petition for review is denied and the
cross-petition for enforcement is granted.