Federated Logistics & Operations v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2004 Decided February 25, 2005

No. 03-1323

FEDERATED LOGISTICS AND OPERATIONS, A DIVISION OF
FEDERATED CORPORATE SERVICES, INC.,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

UNITE, AFL-CIO-CLC,
INTERVENOR

Consolidated with
03-1357

On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board

Meir Feder argued the cause for petitioner. With him on
the briefs were Andrew M. Kramer and Julia M. Broas.

Robert J. Englehart, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
 2

were Arthur F. Rosenfeld, General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and David A. Fleischer, Senior
Attorney.

James B. Coppess argued the cause for intervenor. With
him on the brief was Ira J. Katz.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Opinion dissenting in part filed by Circuit Judge
HENDERSON.

SENTELLE, Circuit Judge: Federated Logistics and
Operations (“Federated” or “Employer”), a division of Federated
Corporate Services, Inc., petitions this Court for review of a
decision and order of the National Labor Relations Board
(“Board”) in an unfair labor practice proceeding. Federated
challenges Board determinations that it unlawfully made threats
to, withheld wage increases from, and disciplined employees at
one of its distribution facilities during a union organizing drive
at its Tampa, Florida facility. Federated also challenges the
broad order the Board imposed to remedy these unfair labor
practices. For the reasons more fully set forth below, we deny
the petition.

I. Background

Federated Logistics, which provides receipt, distribution
and return services for Federated Department Stores, operates
one of its fourteen distribution centers in Tampa, Florida. On
August 25, 2000, the Union of Needletrades, Industrial and
Textile Employees (“UNITE”) petitioned the Board to hold an
 3

election for the union to unionize the plant. When Federated
management received the petition three days later, it flew its
Vice President of Labor and Employee Relations from its
Cincinnati, Ohio headquarters to Tampa to coordinate the
company response to the organizing drive. Federated then
launched a voluminous communications campaign with its
Tampa employees. From August 28th, when it was notified of
the election petition, through October 5th, the evening before the
election, the Employer issued an open letter nearly every other
day on the effects of unionization, generally organized in a
“frequently asked question” format. In its August 29th letter, for
example, Federated wrote:

CAN WE TRY UNION REPRESENTATION FOR A
YEAR AND EASILY GET RID OF THE UNION AFTER
THAT IF WE DON’T LIKE IT?

NO! If a union gets in, it will be very difficult, if not
impossible, to get rid of the union.

Joint Appendix (“J.A.”) at 42. Federated arranged for the
presence of specially trained managers from other facilities to
speak one-on-one with employees about unionization. Finally,
Joe Vella and Kevin Hart, two Federated vice presidents,
convened nonmandatory group meetings with the Tampa
employees two and four days before the election, to provide
further information on unionization in a presentation based on
a series of power-point slides.

The Union lost the October 6, 2000 election by a vote of 81
to 60. The Union filed objections to the election with the Board
on October 13, 2000. On March 14, 2002, an administrative law
judge (“ALJ”) held that Federated violated NLRA § 8(a)(1), 29
U.S.C. § 158(a)(1), by (1) maintaining a no-solicitation rule
prohibiting solicitation in work areas during nonworking time;
 4

(2) interrogating employees about their union activities; (3)
creating the impression among employees that their union
activities were under surveillance; (4) soliciting an employee to
attend and report back on a union meeting; (5) soliciting
employee grievances with the implied promise to remedy them;
(6) promising employees unspecified benefits if they defeated
the union; and (7) threatening employees that supporting the
Union would be futile, that they would lose benefits if the Union
were elected, and that their wages would be frozen. Federated
Logistics & Operations, 340 N.L.R.B. No. 36, slip op. at 20
(2003) (“ALJ Decision”). The ALJ additionally found that
Federated had violated NLRA § 8(a)(3), 29 U.S.C. § 158(a)(3),
by (1) withholding a wage increase from employees because of
their involvement in the election; and (2) disciplining two
employees because they engaged in union activities. Id. at 20-
21. The Board adopted the ALJ’s findings over Petitioner’s
objections. As a remedy, the Board imposed a broad cease-and-
desist order on Federated with respect to all the above-
mentioned violations, ordered the employer to supply the Union
with the names and addresses of employees for two years or
until a certified election had been held, and ordered Federated to
take various affirmative actions to repair the effects of its no-
solicitation rule, unlawful disciplining of employees, and
withheld wage increase. The Board also directed that a
Federated official or a Board agent in the presence of such an
official read a Notice of Violation included in the Board opinion
to an assembly of the Tampa employees.

Of the Board’s findings, Federated appeals only the
determinations that it unlawfully threatened the Tampa
employees with the futility of unionization, withheld wage
increases, and disciplined employees in violation of NLRA §
8(a)(1) & (3), 29 U.S.C. § 158(a)(1) & (3). (Federated does not
dispute the Board’s adoption of the ALJ’s finding that it
committed the other six abovementioned unfair labor practices.)
 5

The Employer further challenges the Board’s imposition of what
it characterizes as an “extraordinary” remedy, as unwarranted by
the facts of the case.

II. Discussion

A. Standard of Review

Under the NLRA, the Board’s findings of fact are
conclusive “if supported by substantial evidence on the record
considered as a whole . . . .” 29 U.S.C. § 160(e). “Substantial
evidence means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Evergreen
America Corp. v. NLRB, 362 F.3d 827, 837 (D.C. Cir. 2004)
(internal quotations omitted). This means that we must uphold
the Board’s decision even if we would have reached a different
result upon de novo review. See Perdue Farms, Inc., Cookin’
Good Div. v. NLRB, 144 F.3d 830, 834-35 (D.C. Cir. 1998). We
appreciate our dissenting colleague’s recitation of the evidence
which serves to well illustrate the volume of substantial
evidence upon which the Board relied. However, our
colleague’s proposals as to how her findings would have
differed from the Board’s on that evidence are not consistent
with our limited role in review.

B. Unlawful threats

Federated’s first challenge is that the Board erred in finding
that comments made by Vella and Hart amounted to unlawful
threats of the futility of unionization in violation of NLRA §
8(a)(1), 29 U.S.C. § 158(a)(1), which forbids an employer from
“interfer[ing] with, restrain[ing], or coerc[ing] employees in the
exercise” of their statutory rights under the Act.
 6

Specifically, the ALJ found as fact that, during the course
of a power point presentation to a large group of Tampa
employees at informational meetings convened shortly before
the election:

Vella and Hart did inform the employees that bargaining
would start at zero and that the Union would seek to take
control of their 401(k) plan and that it was likely they
would lose the 401(k) as the Union would bargain for
control as it did at Respondent’s facility in Seacaucus, New
Jersey. [Further,] Vella and Hart told the employees that
the work could be moved in the event of a strike.

ALJ Decision at 14 (emphasis added).

The Board accepted these findings, characterizing them as
follows:

During employee meetings on October 2, and 4, . . . Vella
and Hart stated, with regard to what would happen to
employees’ wages and benefits if the Union were selected,
that “[they] would start from zero and would negotiate from
that,” that the Union would strike, and that if a strike
occurred the operation could be shut down and moved to
another of the Respondent’s facilities in 3 days, and that
employees could lose their 401(k) plan.

Id. at 1. Reviewing these comments “in context, to determine
whether they ‘effectively threaten employees . . . [,]’” id. at 2,
the Board agreed with the ALJ that the comments “reasonably
would be understood by employees as threats that benefits
would be lost and that selecting union representation would be
futile.” Id.
 7

1. Substantial Evidence of Threatening Statements

Federated argues that there is insufficient evidence in the
record to establish that its managers made statements
constituting prohibited threats. Instead, the employer argues, the
statements that the ALJ did establish it made fell within the safe
haven created by NLRA § 8(c), 29 U.S.C. § 158(c), to protect
employers’ free speech rights. Pet. Br. at 26.

Section 8(c) holds that:

The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic,
or visual form, shall not constitute or be evidence of an
unfair labor practice under any of the provisions of this Act,
if such expression contains no threat of reprisal or force or
promise of benefit.

29 U.S.C. § 158(c).

Therefore, “an 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.’” NLRB v. Gissel Packing Co., Inc., 395 U.S.
575, 618 (1969) (quoting NLRA § 8(c)). This means that “an
employer is free . . . to tell what he reasonably believes will be
the likely economic consequences of unionization that are
outside his control,” so long as the employer stops short of
implying that it “may or may not take action solely on [its] own
initiative for reasons unrelated to economic necessities . . . .” Id.
at 618. If the statements do amount to a threat under this test,
whether or not they are true is inapposite. MacMillan
Publishing Co. v. NLRB, 194 F.3d 165, 167 (D.C. Cir. 1999). In
essence, Federated is saying that the record lacks sufficient
 8

evidence to support a finding of a “threat of reprisal or force.”

As stated above, we must treat the Board’s findings as to
questions of fact as conclusive “if supported by substantial
evidence on the record considered as a whole . . . .” 29 U.S.C. §
160(e). This means that we will therefore uphold the Board’s
findings with respect to the threatening nature of Vella’s and
Hart’s comments if they are based upon “such relevant evidence
as a reasonable mind might accept as adequate to support [the]
conclusion.” Evergreen America Corp., 362 F.3d at 837. Insofar
as these findings were based on credibility determinations by the
ALJ, we will not reverse unless “those determinations are
hopelessly incredible, self-contradictory, or patently
unsupportable.” Shamrock Foods Co. v. NLRB, 346 F.3d 1130,
1134 (D.C. Cir. 2003) (internal quotations omitted).

Because Federated is challenging the Board’s findings that
Vella and Hart’s statements amounted to unlawful threats on the
basis that they fall within § 8(c)’s protection, Federated must
show no reasonable factfinder could find that the three managers
made statements that amounted to implications that, in the event
of unionization, Federated might take action on its own initiative
to render unionization futile, for reasons unrelated to economic
necessity. See Gissel Packing, 395 U.S. at 618. Federated
cannot meet this burden.

Federated first contends that the Board’s finding that
“[Federated] threatened that the Union ‘would strike[,]’” Pet.Br.
at 27 (emphasis in brief), is protected under § 8(c), 29 U.S.C. §
158(c). Id. at 29 Alone, a prediction that a union would strike
after being certified would not amount to a threat. See Hilton-
Laughlin v. NLRB, 148 F.3d 1166, 1174 (D.C. Cir. 1998) (noting
that the Board itself has “found no unfair labor practice in such
management statements as . . . [after] ‘a vote for the [union] . . .
who knows, we might wind [up] in another strike.’”). But in
 9

taking this comment out of context, Federated has blown its
relevance out of proportion. The Board, adopting the ALJ’s
conclusion, found that the comment that “the Union would
strike” amounted to a threat of futility when viewed in
combination with the managers’ other statements (that
bargaining would start from zero, that work would be moved to
another facility in the event of a strike, and that employees could
lose their pensions and 401(k) plans following unionization).
See ALJ Decision at 1 (“[W]e agree with the judge that
Beachy’s, Vella’s and Hart’s statements reasonably would be
understood by employees as threats that benefits would be lost
and that selecting union representation would be futile.”); id. at
14 (“All of [these comments] in combination w[ere] a threat to
employees that it was futile to support the Union.”). Federated
cannot show that the Board lacked substantial evidence to find
that those other statements (a) were made and (b) together
amounted to a threat that Federated might take action on its own
initiative to render unionization futile.

As the ALJ correctly concluded, threats that bargaining
would start from zero and benefits would be lost in the event of
unionization amount to unlawful threats of futility. See Taylor
Dunn Mfg Co., 252 NLRB 799, 800 (1980), enfd. without
opinion, 679 F.2d 900 (9th Cir. 1982); Noah’s Bay Area Bagels,
LLC, 331 NLRB 188 (2000). A threat that the employer would
move the Tampa facility’s work elsewhere in the event of a
strike is an obvious threat of futility, given that it would depend
on Federated “tak[ing] action solely on [its] own initiative . . . .”
Gissel Packing, 395 U.S. at 618. The ALJ’s determination that
the managers communicated that these events would come to
pass in the event of unionization and/or a strike, which came
down to a credibility determination between the testimony of the
managers as against that of three employees at the meeting, see
ALJ Decision at 13–14, is neither “hopelessly incredible,
self-contradictory, or patently unsupportable.” Shamrock Foods,
 10

346 F.3d 1130 at 1134 (internal quotations omitted). This is true
in light of not only the employees’ specific testimony that they
were told these events would occur, ALJ Decision at 13, but also
talking points included on the slides that hardly allow for an
alternate interpretation of events. To give just a sample, the
slides used at the meetings reminded the employees that
“EVERYTHING you have now goes on bargaining table[,]” J.A.
at 95; employees at one of the employer’s unionized facilities
have no Federated pension or 401(K) plan, id. at 99; and the
“Union will try to stop work here” followed by a statement that
the “Company can protect itself by hiring new people or moving
work.” Id. at 100.

2. Viewing the Statements in the Totality of the
Circumstances

Urging that “the coercive tendencies of an employer’s
conduct must be assessed within the totality of the
circumstances surrounding the occurrence at issue,” Pet. Br. at
22 (quoting Brown & Root, Inc. v. NLRB, 333 F.3d 628, 634
(5th Cir. 2003)), Federated also argues that Vella’s and Hart’s
comments do not violate NLRA § 8(a)(3), 29 U.S.C. §
158(a)(3), when viewed in the larger context of the employer’s
overall communication with the Tampa employees. Pet. Br. at
21–22. Arguably, based on the language it chose to use in its
decision, the Board did assess the comments at issue with the
totality of the circumstances in mind. But we need not decide
whether it was correct in doing so (and whether we should adopt
the Fifth Circuit’s totality-of-the-circumstances test): substantial
evidence supports the Board’s conclusion that the comments
were unlawfully threatening when viewed either on their own or
in context.

Though Federated maintains that its communication with
employees was “deliberate,” “careful” and “balanced,” Pet. Br.
 11

at 5, in order to do so, Federated had to delve into the dozens of
letters it distributed to the staff, and the slides Vella and Hart
used in the employee meetings, for bits and pieces of positive
language–such as assurances that it would engage in “give and
take” bargaining with the union should it be elected–and cites
them out of context. See, e.g., Pet. Br. at 23 (citing 12 separate
references to the “give and take” nature of post-unionization
bargaining in the letters and power point presentation); id.
(providing two examples of the statement “we will respect your
decision.”). It is true that the Board has previously held that
statements such as those the Board found Vella and Hart to have
made in violation of § 8(a)(1), 29 U.S.C. § 158(a)(1)–e.g. that
the employees would have to bargain from zero in the event of
unionization–“are not violative of the [NLRA] when other
communications make it clear that any reduction in wages or
benefits will occur only as a result of the normal give and take
of negotiations.” Taylor-Dunn, 252 NLRB at 800. But random
citations do not a coherent view make. Federated’s attempt to
lose us in the trees does not detract from the fact that a
reasonable factfinder examining the textual record of the
campaign–and even the specific instances where Federated used
this supposedly neutral language–could conclude that the
communications were designed to engender employee fears
about potential loss of wages and benefits.

In a September 11, 2000, letter to employees, for example,
Federated wrote:

Unionism means bargaining. Bargaining means “give and
take.” And, give and take means that associates could get
more, the same, or less when a union negotiates a contract.
That’s right, less.

Letter of September 11, 2000, J.A. at 46 (emphasis in original).
The slides upon which Federated based the presentation at the
 12

employee meetings on October 2nd-4th contained more of the
same:

If the union is selected by a majority of voters, the union
gets the right to participate in “give and take” bargaining

[Bargaining] “Does not start from where you presently are
in wages, benefits, terms and conditions of employment”
...

EVERYTHING you have now goes on bargaining table –
union will bargain with what you have now.

NO ONE can predict what will happen in bargaining
- MORE
- SAME
- LESS

ANYTHING IS POSSIBLE

Slides 21-23, J.A. at 94-95.

A reasonable factfinder would therefore not be compelled
to conclude that the impact of Vella’s and Hart’s comments is
mitigated by the overall communications campaign. Although
we are not called upon here to decide whether the letters and
power point slides were, themselves, unlawfully threatening or
coercive in violation of § 8(a)(3), 29 U.S.C. § 158(a)(3), the
wording of the letters and the slides–notwithstanding the
salutary use of phrases such as “give and take”–might bolster the
conclusion that the employees would be left with the impression
that Federated was threatening futility.

In addition, the Board noted that Vella’s and Hart’s
statements “were not made in circumstances free from other
 13

unfair labor practices.” ALJ Decision at 2 (quoting Noah’s Bay
Area Bagels, 331 NLRB at 189). As recounted above, the Board
found that Federated had committed seven other unfair labor
practices which, it was reasonable for the Board to conclude,
“len[t] additional coercive meaning to these managers’
statements.” Id.

Thus, Appellant’s challenge to the Board’s finding that
Vella’s and Hart’s comments violated § 8(a)(3), 29 U.S.C. §
158(a)(3), would fail, regardless of whether we were to adopt
the Fifth Circuit totality-of-the-circumstances test. Vella’s and
Hart’s comments when viewed in context of the record as a
whole remain adequate to support the Board’s conclusion that
Federated was threatening the Tampa employees that electing
the union would be futile.

B. Withheld Wage Increase

Federated’s second major challenge is that the Board erred
in affirming the ALJ’s finding that the employer violated §
8(a)(1) & (3) by withholding a wage increase in response to the
union campaign. 29 U.S.C. § 158(a)(1) & (3). Because this
finding was supported by substantial evidence on the record as
a whole, we cannot hold the Board in error.

The ALJ found that Federated “violated the [NLRA] by
failing to grant a wage increase and by placing the onus on the
Union for doing so,” ALJ Decision at 21, based on the following
evidence: In April 2000, Federated management requested that
two Tampa managers check the need to make seasonal wage
adjustments for workers in the facility. Id. at 15. After a
follow-up email on July 27, 2000, the two managers
recommended a wage increase for both seasonal and regular
employees on the basis that current wages were non-
competitive. Id. Senior Vice President Hart considered this
 14

recommendation in mid-August, and in September rejected the
recommendation, saying that the Tampa facility was not having
trouble attracting seasonal workers. Id.

As a general rule, while a union representation proceeding
is pending, an employer must decide whether to grant benefits
“precisely as it would if the union were not on the scene.”
Perdue Farms, Inc. Cookin’ Good Division v. NLRB, 144 F.3d
830, 836 (D.C. Cir. 1998). It follows that an employer may not
withhold a wage increase that would have been granted but for
a union organizing campaign. See also Pedro’s, Inc. v. NLRB,
652 F.2d 1005, 1008 n.8 (D.C. Cir. 1981).

Two pieces of circumstantial evidence reflected in the
record provide a basis for the Board to adopt the ALJ’s finding
that Federated withheld a wage increase because of the
unionization campaign, and the Tampa employees’ involvement
therein. First, Federated decided not to grant the wage increase
in the middle of the unionization campaign. Second, by the first
or second week of November, Federated was, by its own
admission, encountering difficulty filling openings for seasonal
employees, and had to hire temporary workers to meet demand
for its services. ALJ Decision at 15. But what is more
persuasive is the evidence cited by the ALJ that a Federated
manager showed a record of a wage increase at a non-unionized
Federated facility in Georgia to Tampa employees, to make
them aware of what would have happened at their facility if they
had not been trying to unionize. See ALJ Decision at 17
(recounting testimony of five Tampa employees that managers
brought a notice of a pay raise at Stone Mountain, Georgia
around to them, and told them that they would have received a
similar raise but for the union activity in Tampa). Arguably, an
employer might be reluctant to raise wages shortly before a
union election, lest it be accused of attempting to thereby
influence the outcome of the election. Pedro’s Inc. v. NLRB,
 15

652 F.2d at 1008 & n.8. It is even possible, as Federated
strenuously argues, that in mid-September, its managers simply
did not foresee that it would have difficulty by early November
in attracting enough workers to staff up the facility during the
peak holiday season–although this conclusion is certainly not
compelled by the record evidence. But the credited testimony
of five Tampa employees that they were told by Federated
managers they were not receiving wage increases being granted
in other facilities because of the unionization effort is
indisputably “relevant evidence [that] a reasonable mind might
accept as adequate to support [the] conclusion” that Federated’s
purpose in withholding the wage increase was anti-union animus
in violation of §§ 8(a)(1) & (3), 29 U.S.C. § 158(a)(1) & (3).
Evergreen America Corp., 362 F.3d at 837.

C. Disciplining of Employees

The final Board finding that Federated challenges, again for
lack of substantial evidence, is that Federated violated § 8(a)(3),
29 U.S.C. § 158(a)(3), by “issuing discriminatory warnings” to
and suspending Tampa employees Emmanuel Williams and
Sandra Lewis for engaging in § 7 activity. ALJ Decision at 3.
Federated maintains that it suspended the employees—both
active in the unionization effort—for harassing two Haitian
workers on account of their country of origin. However, a memo
kept by the human resources manager responsible indicated that
her first and primary motive was disciplining the two employees
for violating the Employer’s no-solicitation policy. ALJ
Decision at 18-20.

Once again, the ALJ’s conclusion that the disciplinary
actions violated the NLRA came down to a credibility
determination in the face of conflicting testimony. ALJ
Decision at 20. In crediting the word of Williams and Lewis
over that of management, the ALJ relied not only on their
 16

testimonial evidence that they were disciplined for union
solicitation, but also on the human resources memos relating that
the reason management first confronted the two employees was
to speak about their violation of the solicitation ban, see id. at
18. This evidence is therefore sufficient to support the Board’s
adoption of the ALJ’s conclusion that Federated violated the Act
in the manner in which it disciplined Williams and Lewis.
Shamrock Foods Co. v. NLRB, 346 F.3d at 1134; Evergreen
America Corp., 362 F.3d at 837.

D. Special remedies

Federated’s final challenge is to the Board’s choice of
remedies. First, Federated challenges the cease and desist order
that the Board imposed, requiring Federated to cease and desist
from committing the unfair labor practices it was found to have
committed, and “[i]n any other manner interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the [NLRA].” ALJ Decision at
5. Federated objects that the Board erred in imposing a broad
order without addressing the suitability of “traditional
remedies,” considering what Federated characterizes as its
“extensive efforts to comply with the law,” or adequately
establishing that Federated’s violations were so egregious as to
warrant an extraordinary remedy.

A cease and desist order as broad as that ordered by the
Board in this case “is warranted only when a respondent is
shown to have a proclivity to violate the [NLRA], or has
engaged in such egregious or widespread misconduct as to
demonstrate a general disregard for the employees' fundamental
statutory rights.” NLRB v. Blake Construction, 663 F.2d 272,
285 (D.C. Cir. 1981).
 17

In applying that precedent to this record, it bears repeating
that, in addition to the three Board findings that Federated
unsuccessfully challenges in this appeal–that it unlawfully made
threats of the futility of unionization, withheld a wage increase,
and disciplined two employees for engaging in union activity–it
is uncontested that Federated also committed six other unfair
labor practices. As the Board found, “when faced with the
Union organizing effort among its employees, [Federated]
responded with extensive and serious unfair labor practices.”
ALJ Decision at 3. These included maintaining an over-broad
no-solicitation rule, interrogating employees about union
activities, creating the impression of surveillance of union
activities, asking employees to spy on union activities, soliciting
employee grievances with the implied promise to remedy them,
and promising employees unspecified benefits for defeating the
union. Other courts have held similar patterns of violation to
amount to “widespread” anti-union activity. See, e.g., Coil
A.C.C. Inc. v. NLRB, 712 F.2d 1074, 1076 (6th Cir. 1983)
(upholding a broad cease and desist order where the Board
found the employer to have violated NLRA § 8(a)(1) by
“threatening, coercing and restraining its employees in the
exercise of their [§ 7] rights,” “threatening to [shut down] the
company” and discharging an employee involved with the
union). As the First Circuit has put it, “when a record discloses
persistent attempts to interfere with legislatively protected rights
by varying methods, the Board may restrain a labor organization
from committing similar or related unlawful acts in the future.”
NLRB v. Union Nacional de Trabajadores, 540 F.2d 1, 11 (1st
Cir. 1976). Given the scope of Federated’s communications
offensive against the Union, and the multiple unfair labor
practices it committed in attempting to prevent the Union from
winning the election, it was reasonable for the Board to
conclude that its misconduct was sufficiently persistent and
widespread to warrant a broad cease and desist order.
 18

Federated next contests the Board’s order that it supply the
Union with employees’ home contact details. See ALJ Decision
at 4 (ordering that Federated “supply to the Union every 6
months for 2 years, or until a certification after a fair election,
the names and addresses of its current unit employees, so that
the Union can help to counteract the effects of the[] violations
in its communications with employees.”). But it is long
established that requiring the employer to disclose employee
names and contact details to the union furthers NLRA objectives
“by encouraging an informed employee electorate and by
allowing unions the right of access to employees that
management already possesses.” NLRB v. Wyman-Gordan Co.,
394 U.S. 759, 767 (1969). Thus, this challenge fails.

Finally, Federated challenges the portion of the Board’s
Order directing that either a Federated management official, or
an agent of the NLRB in the presence of a Federated official,
read the notice of Federated’s unfair labor practices to its
employees. This Circuit has upheld such an order with respect
to the president of a corporation who the ALJ had found to have
“personally and repeatedly communicated to employees [an]
ominous threat” of plant closure as “the centerpiece of
[defendant corporation’s] intense anti-union campaign.” Conair
v. NLRB, 721 F.2d 1355, 1385-87 (D.C. Cir. 1983). As we
clarified in United Food & Commercial Workers v. NLRB, 852
F.2d 1344, 1348 (D.C. Cir. 1988), “[w]e are not unconcerned
about the ignominy of a forced public reading by an employer
and its potential for oppression.” (internal quotation omitted).
We will only “enforce such orders when the record . . .
indicate[s] [a] particularized need” for one. Id. (internal
quotation omitted). In the case at bar, as in Conair, the Board
found the fact that “many of the[] [NLRA] violations were
committed by high-level management officials[.]” ALJ Decision
at 3. The Board explained that part of the purpose of its order
that the Notice be read out loud was “so that employees will
 19

fully perceive that [Federated] and its managers are bound by
the requirements of the [NLRA].” Id. at 4 (emphasis added).
Federated has not met its burden of rebutting the existence of a
particularized need for the public reading requirement. For that
reason, we decline to reverse that portion of the order.

For the foregoing reasons, the petition for judicial review is
denied.
 HENDERSON, Circuit Judge, dissenting in part: I join my
colleagues in the majority except in two crucial respects.
Because our role in reviewing the orders of the National Labor
Relations Board (Board) requires us to do more than simply sign
off on its unfair labor practice findings, see, e.g., Crowley
Marine Servs., Inc. v. NLRB, 234 F.3d 1295, 1303 (D.C. Cir.
2000) (“[O]ur review is not ‘ “a mere rubber stamp substituting
judicial abdication for judicial review.” ’ ” (quoting Gen. Elec.
Co. v. NLRB, 916 F.2d 1163, 1168 (7th Cir. 1990) (quoting
NLRB v. Harvstone Mfg. Co., 785 F.2d 570, 574-75 (7th Cir.
1986)))) (Henderson, J., dissenting), or mechanically enforce its
remedies, see, e.g., Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35,
42 (D.C. Cir. 1980) (“[T]his court is a reviewing court and does
not function simply as the Board’s enforcement arm.”), I cannot
join the decision to uphold the Board’s finding that Federated
Logistics & Operations (Federated) committed an unfair labor
practice by threatening futility; nor do I agree with the Board’s
imposition of several “extraordinary” remedies. As the Board
offered neither a reasonable explanation nor one based on
substantial evidence in the record to support either, see, e.g.,
Gen. Elec. Co. v. NLRB, 117 F.3d 627, 630 (D.C. Cir. 1997), I
believe that the former constitutes a misdiagnosis—which
deprived Federated of its right to free expression protected by
the Act—and the latter amount to punitive rather than remedial
measures. I would therefore hold that Federated’s petition
should be granted in part and, accordingly, do not join sections
II.A and II.D of the majority opinion.
I.
Judicial review of the Board’s findings of unfair labor
practices is admittedly deferential but it is not “so deferential
that the court will merely act as a rubber stamp for the Board’s
conclusions.” Titanium Metals Corp. v. NLRB, 392 F.3d 439,
445 (D.C. Cir. 2004) (citing Pa. State Educ. Ass’n-NEA v.
NLRB, 79 F.3d 139, 148 (D.C. Cir. 1996)). Because the Board’s
findings of fact are, by statute, conclusive “if supported by
substantial evidence on the record considered as a whole,” 29
 2

U.S.C. § 160(e), we will uphold them unless upon a review of
the entire record we conclude that they are not supported by the
required quotient of evidence “or that the Board acted arbitrarily
or otherwise erred in applying established law to the facts of the
case.” Int’l Union of Elec., Elec., Salaried, Mach. & Furniture
Workers v. NLRB, 41 F.3d 1532, 1536 (D.C. Cir. 1994) (internal
quotation marks & citations omitted); see also Stanford Hosp.
& Clinics v. NLRB, 370 F.3d 1210, 1212 (D.C. Cir. 2004) (“Our
review is limited to determining whether the Board’s findings of
fact are supported by substantial evidence and, if so, whether the
Board acted arbitrarily or otherwise erred in applying
established law to the facts of the case.”). “ ‘Substantial
evidence means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” ’ ”
Evergreen Am. Corp. v. NLRB, 362 F.3d 827, 837 (D.C. Cir.
2004) (quoting MECO Corp. v. NLRB 986 F.2d 1434, 1436
(D.C. Cir. 1993) (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971))). We do not review just the evidence supporting the
Board, however; we also review “anything in the record that
‘fairly detracts’ from the weight of th[at] evidence.” Gen. Elec.
Co., 117 F.3d at 630 (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)) (Tatel, J.); accord CitiSteel USA, Inc.
v. NLRB, 53 F.3d 350, 355 (D.C. Cir. 1995) (Board must
“provide . . . reasons for discounting the contrary evidence.”).
Even under this deferential standard, I disagree with the
majority that substantial record evidence supports the Board’s
finding that Federated’s managers unlawfully threatened
Federated’s employees that unionization would prove futile.
None of the statements made by vice presidents Joe Vella and
Kevin Hart—that bargaining would start from “zero,” that work
could be moved to another facility in the event of a strike and
that employees could lose their 401(k) plan following
unionization—supports the Board’s “threat” finding, whether
 3

viewed independently or in the “totality of the circumstances.”1
Although the National Labor Relations Act (NLRA, Act), §§ 1
et seq., as amended, 29 U.S.C. §§ 151 et seq., makes it an unfair
labor practice for employers “to interfere with, restrain, or
coerce employees in the exercise of” their associational rights,
id. § 158(a)(1), it also protects the employer’s First Amendment
right to express its views, including reasonable predictions about
the consequences of unionization, so long as they “contain[] no
threat of reprisal or force or promise of benefit,” id. § 158(c).
“[A] ‘threat of reprisal’ means a ‘threat of retaliation’ and this
in turn means not a prediction that adverse consequences will
develop but a threat that they will be deliberately inflicted in
return for an injury—‘to return evil for evil.’ ” Crown Cork &
Seal Co. v. NLRB, 36 F.3d 1130, 1138 (D.C. Cir. 1994)
(emphases in original) (quoting NLRB v. Golub Corp., 388 F.2d
921, 928 (2d Cir. 1967) (Friendly, J.)).
Vella’s and Hart’s statements that bargaining with the Union
would start from “zero” gave an accurate and lawful, albeit
blunt, picture of the vagaries of the collective bargaining
process. See Joint Appendix (J.A.) 299 (“Mr. Hart stated that
we would start from zero and we would negotiate from that.
Any benefits we may have at this time could be jeopardized in
that proceeding.”); J.A. 312 (“[W]e could start from ground zero
. . . They said we’d be starting at zero. We might go up. We

1
While the majority does not mention manager Jody Beachy’s
statement to one employee (Kathy Lee Gay) that wages would remain
constant during negotiations with the Union, see Federated Logistics
& Operations, 340 NLRB No. 36, slip op. at 1 (2003), reprinted in
Joint Appendix (J.A.) 1; see also J.A. 347, I believe that the Board
failed to evaluate this statement in the context of Federated’s
pronouncement in early October that, while wages and benefits would
be “frozen” during negotiations, it nevertheless would continue to
make “ ‘routine’ past practice changes such as normal merit reviews,”
J.A. 60. See discussion infra at 5-6.
 4

might end up getting less than what we’re making now.”); J.A.
354 (“I asked them how can they start off with zero . . . . They
said the union can do [sic].”). The statements neither implied
that Federated intended to bargain in bad faith nor threatened a
strategy of slashing wages and/or benefits in advance of
negotiations; they indicated only, and truthfully so, that what the
process held for the employees—“more, the same, or less,” J.A.
48; see also J.A. 95—was hard to predict at the outset. Their
statements, moreover, made clear that whatever the final result,
it would be the product of negotiations, not unilateral retaliatory
action.
Neither do I find the statements that unionization might trigger
a strike, a plant shut-down or loss of the employees’ 401(k) plan
unlawful. An employer walks a fine line in predicting the effect
of unionization on its business, see NLRB v. Gissel Packing Co.,
395 U.S. 575, 618-19 (1969), for its predictions must be
“carefully phrased on the basis of objective fact to convey an
employer’s belief as to demonstrably probable consequences
beyond [its] control” and not leave the impression that it “may
or may not take action solely on [its] own initiative for reasons
unrelated to economic necessities and known only to [it],” id. at
618. But “ ‘[m]ere references to the possible negative outcomes
of unionization,’ ” Flamingo Hilton-Laughlin v. NLRB, 148 F.3d
1166, 1174 (D.C. Cir. 1998) (quoting UARCO, Inc., 286 NLRB
55, 58 (1987); alteration in original), fall within section 8(c)’s
protection, 29 U.S.C. § 158(c). While Vella and Hart may have
walked the line, the evidence failed to demonstrate that they
crossed it. The Board concluded that “unsupported employer
predictions that a strike and then a plant shut down will follow
a union victory are objectionable and unlawfully coercive,”
Federated Logistics & Operations, 340 NLRB No. 36, slip op.
at 2 (2003) (emphasis added), but the ALJ nowhere found that
Federated intended to visit any of these “evils” on its employees,
only that they were possibilities. See id. at 13 (“[M]anagement
stated that they could shut the building down in 3 days and move
 5

the operation elsewhere if negotiations were unsuccessful
. . . .”); id. (employees “ could lose their benefits and 401(k)
plans) (emphasis added); id. at 14 (“work could be moved in the
event of a strike”) (emphasis added); see also, e.g., J.A. 299 (“If
we were to go on strike . . . they could shut [the building] down,
move it elsewhere and just start back up again.”) (emphasis
added). Vella’s and Hart’s prediction that employees could lose
their 401(k) plan, moreover, was squarely based on fact—i.e.,
the terms of the Union’s contract at Federated’s Secaucus
facility, J.A. 62, 99. See Gissel Packing Co., 395 U.S. at 618.
Because the managers’ statements only alluded to “possible
negative outcomes of unionization,” Flamingo Hilton-Laughlin,
148 F.3d at 1174 (internal quotation marks omitted), the Board
erred “by converting a possibility into a certainty, then declaring
it a violation of the Act.” Gen. Elec. Co., 117 F.3d at 636; see
Flamingo Hilton-Laughlin, 148 F.3d at 1174 (vacating violation
because company president speculated about duration of
negotiations based on what he “foresaw”).
The Board itself acknowledged that statements like these “are
not per se unlawful,” Federated Logistics & Operations, 340
NLRB No. 36, slip op. at 1; see generally Shaw’s Supermarkets,
Inc. v. NLRB, 884 F.2d 34, 37 (1st Cir. 1989) (citing Board
orders that found “bargaining from scratch” language lawful
based on “factual context[]”), but must be evaluated “in context”
in order to assess
whether they “effectively threaten employees
with the loss of existing benefits and leave them
with the impression that what they may
ultimately receive depends in large measure
upon what the Union can induce the employer to
restore,” or—conversely—whether they indicate
that any “reduction in wages or benefits will
occur only as a result of the normal give and take
of collective bargaining.”
 6

Federated Logistics & Operations, 340 NLRB No. 36, slip op.
at 1 (quoting Plastronics, Inc., 233 NLRB 155, 156 (1977) &
citing Capitol EMI Music, 311 NLRB 997, 1007-1008 (1993),
enfd. 23 F.3d 399 (4th Cir 1994)); see Federated Logistics &
Operations, 340 NLRB No. 36, slip op. at 2 ([T]he Board must
consider the impact of particular employer statements in the
context of surrounding circumstances . . . .”). The Board offered
a variety of reasons for discounting the “surrounding
circumstances” here, id., none of which I find reasonable.
Indeed, the Board began its analysis with a proposition that is
flatly contradicted by the administrative record: It found that
Vella’s and Hart’s statements “uttered on the eve of the
election” had “maxim[um] . . . coercive impact” because
Federated’s counterbalancing non-coercive statements were
made “weeks” earlier, id., but Federated distributed campaign
materials describing the “give and take” of the bargaining
process immediately before as well as after the two meetings at
which Vella and Hart made their predictions.2 The Board also
stated that “any lawful message in the PowerPoint presentation
by Vella and Hart to employees was counteracted by their
express statements that bargaining would start from ‘zero.’ ” Id.
This ipse dixit is a peculiar one as it contradicts the

2
Federated distributed a communication on October 2—the day of
the first employee meeting—asking its employees to consider whether
they “could . . . possibly get hurt from ‘give and take’ bargaining?”
J.A. 59. The next day, October 3, Federated distributed a
communication stating that “if the union wins your vote, then wages
and benefits become subject to ‘give and take’ bargaining.” J.A. 60.
The day of the second employee meeting, October 4, Federated
distributed a communication stating that “[u]nionization means that
the ‘give and take’ of bargaining will decide whatever happens,” J.A.
61, and followed up the next day with a communication stating, “You
can avoid the risks of ‘give and take’ bargaining . . . .” J.A. 63. The
election was not held until October 6. Federated Logistics &
Operations, 340 NLRB No. 36, slip op. at 1.
 7

commonsense audience view of printed text and oral
presentation as complementary—not contradictory.
The Board also discounted the context in which Vella’s and
Hart’s statements were made by observing that, while “a
particular employer statement” may be “mitigated by other
employer statements made at different times or places[,] [a]n
employee might reasonably be influenced more by a coercive
statement than by a different noncoercive statement.” Id. As
discussed above, however, Vella’s and Hart’s statements were
not coercive to begin with, and, in my opinion, could not have
become so if considered in the larger context as required. See
infra notes 4 & 5. The Board made the further point that Vella’s
and Hart’s “coercive” statements “were not made in
circumstances free from other unfair labor practices.”
Federated Logistics & Operations, 340 NLRB No. 36, slip op.
at 2 (internal quotation marks & citation omitted). While
Federated’s separate unfair labor practices were without doubt
part of the larger context in which Vella’s and Hart’s statements
should have been considered, the Board did not explain how
they negated Federated’s repeated and consistent statements that
bargaining is a “ ‘give and take’ process” and that the “result
would be the product of good-faith bargaining.” Id.
In upholding the Board, the majority concludes that the
managers’ statements were coercive even if viewed in the
“totality of the circumstances” because “random” citations to
“neutral language” in the administrative record “do not a
coherent view make.”3 Maj. Slip Op. at 11. A quip does not a
“coherent view” make either, however, and if charges of cherry-

3
Given that the Board was obligated to consider the statements in
context, see discussion supra at 5-6, I find the majority’s pondering
whether the Board was “correct in doing so (and whether we should
adopt the Fifth Circuit’s totality-of-the-circumstances test)[]” beside
the point. See Maj. Slip Op. at 10.
 8

picking the record are to be tossed about, my colleagues would
do well to duck. Taken as a whole the record does not reveal
Federated’s “neutral language” as mere platitudes within a larger
campaign to threaten employees if they unionize. See Maj. Slip
Op. at 11. Rather, in my view, the record is so full of such
“neutral language” that the picture it paints is one of a coherent
company campaign presenting a consistent and lawful message:
collective bargaining is a “give and take” process and, while the
company intends to bargain in good faith, the process carries
burdens as well as benefits.4
I also reject the majority’s observation that resolution of this
issue “c[o]me[s] down to a credibility determination between the
testimony of the managers as against that of three employees at
the meeting.” Maj. Slip Op. at 9. If that were the case, I would
join the majority as it is settled that “[w]e accept the ALJ’s
credibility determinations that are adopted by the Board ‘unless
they are patently unsupportable.’ ” Schaeff Inc. v. NLRB, 113
F.3d 264, 266 (D.C. Cir. 1997) (quoting NLRB v. Creative Food
Design Ltd., 852 F.2d 1295, 1297 (D.C. Cir. 1988)) (Henderson,
J.). But credibility is not the issue. The issue is whether a
reasonable person would consider the managers’ statements to
be unlawful threats of futility if unionization were to occur. See
Evergreen Am. Corp., 362 F.3d at 837. I say no.

4
See, e.g., J.A. 43 (“Bargaining is ‘give and take’ which means that
you could get more, the same, or less. No one can predict what you
may get or lose with unionism.”) (emphasis added); J.A. 46
(“ ‘Collective bargaining’ involves ‘give and take.’ Both union and
management must bargain in good faith . . . .” ); J.A. 56 (if Union
were to win, “the only thing it ‘wins’ is the right to participate in ‘give
and take’ bargaining”) J.A. 57 (“[T]he ‘give and take’ bargaining
process can bring risks, as well as rewards.”); see also infra note 5.
 9

II.
The Board’s remedial power under section 10 of the NLRA,
which authorizes the Board upon finding an unfair labor practice
to order the violator “to cease and desist from such unfair labor
practice, and to take such affirmative action . . . as will
effectuate the policies of [the Act],” 29 U.S.C. § 160(c); see
United Food & Commercial Workers Int’l Union AFL-CIO v.
NLRB, 852 F.2d 1344, 1347 (D.C. Cir. 1988), “is a broad
discretionary one, subject to limited judicial review.”
Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216
(1964). Because the Board “draws on a fund of knowledge and
expertise all its own,” Gissel Packing Co., 395 U.S. at 612 n.32,
and following the United States Supreme Court’s lead, see
Fibreboard Paper Prods. Corp., 379 U.S. at 216, we have
repeatedly recognized that we owe Board remedial orders
“special respect” and, consequently, our review of them is
limited. Williams Enters., Inc. v. NLRB, 956 F.2d 1226, 1232
(D.C. Cir. 1992); see, e.g., Cobb Mech. Contractors, Inc. v.
NLRB, 295 F.3d 1370, 1375 (D.C. Cir. 2002) ([T]he Board is
accorded broad discretion in fashioning an appropriate
remedy.”); Capital Cleaning Contractors, Inc. v. NLRB, 147
F.3d 999, 1009 (D.C. Cir. 1998) (“[A] reviewing court must give
special respect to the Board’s choice of remedy . . . .”);
Teamsters Local 115 v. NLRB, 640 F.2d 392, 399 (D.C. Cir.
1981) (“The Board’s choice of remedies is entitled to a high
degree of deference.”); see also Synergy Gas Corp. v. NLRB, 19
F.3d 649, 654 (D.C. Cir. 1997) (“Our review, both in theory and
in practice, is quite deferential.”) (Silberman, J., concurring).
Nevertheless, we remain a court of review—limited though our
role may be—and not merely the Board’s Article III
“enforcement arm.” Peoples Gas Sys., Inc., 629 F.2d at 42.
Accordingly, as we have said, “[i]t is our responsibility to
examine carefully both the Board’s findings and its reasoning,
to assure that the Board has considered the factors which are
relevant to its choice of remedy, selected a course which is
 10

remedial rather than punitive, and chosen a remedy which can
fairly be said to effectuate the purposes of the Act.” Id. In
short, the Board’s remedy must “be tailored to the unfair labor
practice it is intended to redress,” Sure-Tan, Inc. v. NLRB, 467
U.S. 883, 900 (1984); see Cobb Mech. Contractors, Inc., 295
F.3d at 1375, and when it comes to “extraordinary” remedies,
the Board is obligated to explain why conventional ones do not
suffice. See Charlotte Amphitheater Corp. v. NLRB, 82 F.3d
1074, 1079 (D.C. Cir. 1996).
The Board tells us that it reserves extraordinary remedies for
cases involving unfair labor practices that are “so numerous,
pervasive, and outrageous” that “special” remedies are necessary
to “dissipate fully the coercive effects of the unfair labor
practices found.” Federated Logistics & Operations, 340 NLRB
No. 36, slip op. at 2 (internal quotation marks & citation
omitted). This is such a case, it concluded, because Federated
engaged in “extensive and serious unfair labor practices,” “some
of” its “unlawful conduct pervaded the unit,” its “unfair labor
practices tended to have a long-term coercive impact on the
unit,” and “many of the[] violations were committed by high-
level management officials.” Id. at 3. Consequently, it imposed
three “extraordinary” remedies to eliminate the effects of
Federated’s assorted unfair labor practices—(1) the company is
to cease and desist “from committing the specific violations
found and from violating the Act ‘in any other manner,’ ” (2) the
company is to supply the names and addresses of its employees
to the Union every six months for two years and (3) a
management official or Board agent is to read the notice of
violations publicly. See id. at 3-4. However broad its discretion
or hefty its expertise, the Board is required to match the cure to
the ill; in selecting the remedies noted, however, the Board has
vastly overmedicated.
The Board’s remedy must be “based on the nature and extent
of the violations it finds,” NLRB v. Blake Constr. Co., 663 F.2d
 11

272, 285 (D.C. Cir. 1981); see NLRB v. Express Publ’g Co., 312
U.S. 426, 433 (1941) (Board’s authority regarding unfair labor
practices does not include “authority to restrain generally all
other unlawful practices which it has neither found to have been
pursued nor persuasively to be related to the proven unlawful
conduct”), and, thus, isolated unfair labor practices do “not
justify an injunction broadly to obey the statute and thus subject
the [violator] to contempt proceedings if he shall at any time in
the future commit some new violation unlike and unrelated to
that with which he was originally charged.” Id. at 435-36.
There is, however, an equally well-established exception to this
rule: “substantial evidence of a ‘generalized scheme’ to violate
the Act” would support the sort of broad cease-and-desist order
imposed here. Blake Constr. Co., 663 F.2d at 285 (quoting San
Francisco Local Joint Executive Bd. of Culinary Workers v .
NLRB, 501 F.2d 794, 802 (D.C. Cir. 1974)). But the test is a
stringent one as “ ‘[s]uch an order is warranted only when a
[violator] is shown to have a proclivity to violate the Act, or has
engaged in such egregious or widespread misconduct as to
demonstrate a general disregard for the employees’ fundamental
statutory rights.’ ” Blake Constr. Co., 663 F.2d at 285 (quoting
Hickmott Foods, Inc., 242 NLRB No. 177 (1979)) (emphasis
added; first alteration in original). Because Federated was a first-
time violator, see Blake Constr. Co., 663 F.2d at 285-86; but see
Teamsters Local 115, 640 F.2d at 399 (“[A]n employer who
strikes the first blow hard enough may not need to strike
another.”), the Board declined to find that the company
exhibited any “proclivity” to violate the Act, concluding instead
that its “misconduct was sufficiently egregious and widespread
to demonstrate a general disregard for the employees’ statutory
rights.” Federated Logistics & Operations, 340 NLRB No. 36,
slip op. at 4 n.9. In so concluding, however, the Board failed to
take account of (or explain away) the substantial record
evidence demonstrating that, even as it committed unfair labor
practices, Federated contemporaneously took actions designed
 12

to respect its employees’ rights.5 Nor did the Board, in light of
the unexceptional nature of Federated’s unfair labor practices
and its counterbalancing good conduct, explain how Federated’s
misconduct was of the kind and degree that the Board has in the
past found sufficient to support a cease-and-desist order. 6 The
Board observed, and the majority today repeats, see Maj. Slip
Op. at 17, that Federated committed “extensive and serious
unfair labor practices,” Federated Logistics & Operations, 340
NLRB No. 36, slip op. at 3, but we have made clear that it is not
enough for the Board to justify an extraordinary remedy “simply
by reciting the employer’s unfair labor practices and
commenting on their gravity.” Charlotte Amphitheater, 82 F.3d
at 1079.
Relying on two cases from outside our circuit, the majority
concludes that “[g]iven the scope of Federated’s
communications offensive against the Union, and the multiple
unfair labor practices it committed in attempting to prevent the

5
See J.A. 41-63 (written communications to employees); J.A. 88-
106 (PowerPoint presentation); see also discussion supra note 4. In
its information campaign, Federated consistently stressed that it
intended to respect its employees’ views on unionization, see J.A. 41,
42, 43, 46, 48, 49, 55, 57, 60, 63, 89, 92, 103, 105, 106, and that, if the
Union won, bargaining would be “give and take,” J.A. 43, 46, 48, 56,
59, 60, 61-63, 94, 100, and pursued in good faith, see J.A. 46, 56, 57,
95, and that it would not take retaliatory action, see J.A. 55, 56, 57, 62.
6
See, e.g., Audubon Regional Med. Ctr., 331 NLRB 374 (2000)
(extraordinary remedies to lessen effects of employer’s (1)
discriminatory rule enforcement; (2) threats to close plant, cut jobs and
benefits, discriminate and discipline; (3) refusal to negotiate with
union; (4) attempts to discourage union support by announcing wage
increases and new benefits; and (5) discrimination against employees);
Fieldcrest Cannon, Inc., 318 NLRB 470, 473-474 (1995), enfd., 97
F.3d 65, 73 (4th Cir. 1996) (employer “adopted a scorched earth, take-
no-prisoners approach”).
 13

Union from winning the election, it was reasonable for the
Board to conclude that its misconduct was sufficiently persistent
and widespread to warrant a broad cease and desist order.” Maj.
Slip Op. at 17. Neither of the two cases, see Coil-A.C.C., Inc. v.
NLRB, 712 F.2d 1074, 1076 (6th Cir. 1983); NLRB v. Union
Nacional de Trabajadores, 540 F.2d 1, 11 (1st Cir. 1976), nor
one of ours that upheld a cease-and-desist order, see Blake
Constr. Co., 663 F.2d at 285-86, supports the majority inasmuch
as their facts are so markedly different. In Coil A.C.C., Inc. v.
NLRB, the Sixth Circuit held that the Board was “clearly
justified” in finding that the employer “manifested a general
disregard for the fundamental statutory rights of its employees”
because its owner personally and dramatically confronted two
employees about their union sympathies and on three occasions
“forewarned that he would cease operations at the plant and
renew business operations elsewhere if necessary before he
would permit unionism.” 712 F.2d at 1075-76; but see id. at
1077-78 (Krupansky, J., concurring in part & dissenting in part).
The First Circuit’s decision in NLRB v. Union Nacional de
Trabajadores involved misconduct of an exceptionally
egregious nature—including multiple violent assaults, see id. at
6-9 and numerous death threats, see, e.g., id. at 7 (“ ‘This is
Union Nacional and we kill people.’ ”), against
management—which supported a finding not at issue here. See
id. at 11. There, the court concluded that the administrative
record “amply support[ed] the Board’s conclusions that the
union has demonstrated a proclivity” to violate the Act, not only
based on its numerous and flagrant violations but also because
“[i]ts agents have stated, both in the course of their unlawful
activities and in the hearings before the Board, that they do not
regard themselves as subject to the authority of the Act and that
they feel no obligation to conform their conduct to its
requirements.” Id. (emphasis added).
Our own precedent also stands in strong contrast. In Blake
Constr. Co., we explained that the employer’s efforts to avoid
 14

negotiating contract pay rates for new union members, which
“culminat[ed] in a dramatic, albeit transparent, turnover of all
company activities to an alter ego, solely to abrogate its
obligations under the Act[,] unquestionably” manifested a
general disregard for its employees’ rights. 663 F.2d at 285.
“This maneuver was exacerbated,” the court added, by the
employer’s approach to individual bargaining with union
employees, which entailed “confronting the employees with the
Solomonic dilemma of choosing between lower take home pay
or slightly higher take home pay which was still appreciably less
than the employees’ current rates of pay and did not include
necessary benefits.” Id. at 285-86. The court concluded by
observing that “[t]he [employer’s] conduct . . . and the lengths
to which it went to perpetuate that conduct are reminiscent more
of the pre-National Labor Relations Act era of industrial warfare
than of the latter Twentieth Century.” Id. at 286. Federated’s
unfair labor practices hardly evoke the days of “industrial
warfare.”
The Board likewise failed to justify the need for the two
additional extraordinary remedies it prescribed. As the Board
noted, Federated must furnish the Union with a list of employee
names and addresses before the next election. Federated
Logistics & Operations, 340 NLRB No. 36, slip op. at 4 n.10.
But to ensure “that [the Union] can present its message to
employees outside the workplace in an atmosphere free from
coercion,” id., the Board also ordered Federated to supply the
names and addresses of its employees to the Union every six
months for two years. Id. at 4. The Board nowhere explained
why such a remedy was necessary—presumably—to counteract
employees’ fear of discussing unionization at the Tampa facility.
See, e.g., Excel Case Ready, 334 NLRB 4, 5 (2001) (ordering
employer to provide union with employees’ names and
addresses within one year on finding “usual Board remedies are
not sufficient to undo the effects of the [employer’s] illegal
activities” as it “systematically embarked on a campaign to rid
 15

its work force of leading union adherents”); Blockbuster
Pavilion, 331 NLRB 1274, 1275 (2000) (ordering employer to
provide union with employees’ names and addresses within one
year on finding it “essential to ensuring that employees may
freely exercise their Section 7 rights” as “[t]he employees’ prior
organizational efforts were aborted by the [employer’s] coercive
tactics calculated to make employees afraid to associate
themselves with the Union.”). The majority nevertheless
accepts the Board’s remedy, reasoning that Federated’s
challenge fails because “it is long established that requiring the
employer to disclose employee names and contact details to the
union furthers NLRA objectives ‘by encouraging an informed
employee electorate and by allowing unions the right of access
to employees that management already possesses.’ ” Maj. Slip
Op. at 18 (quoting NLRB v. Wyman-Gordan Co., 349 U.S. 759,
767 (1969)). But another longstanding doctrine requires us to
scrutinize the Board’s remedy to ensure that it is “tailored to the
unfair labor practice it is intended to redress.” Sure-Tan, Inc.,
467 U.S. at 900; see Cobb Mech. Contractors, Inc., 295 F.3d at
1375. Here, the Board failed to support the conclusion that
necessarily underlies this remedy—i.e., the Union could not
communicate effectively with the employees—with record
support. See Federated Logistics & Operations, 340 NLRB No.
36, slip op. at 3-4; see also id. at 8 (“[T]he record does not
establish that the Union was unable to communicate with the
employees.”) (Battista, Chrmn., dissenting in part).
The Board’s requirement that the notice of violations be read
publicly by a management official or Board agent contains a
similar defect. We have consistently “viewed public reading
requirements with . . . suspicion,” Teamsters Local 115, 640
F.2d at 402, recognizing the “ ‘ignominy of a forced public
reading’ by an employer and its potential for oppression.”
United Food, 852 F.2d at 1348 (quoting Int’l Union of Elec.
Radio & Mach. Workers v. NLRB, 383 F.2d 230, 234 (D.C. Cir.
1967)). Accordingly, we will not enforce such an order absent
 16

record evidence indicating a “particularized need” for it,
Teamsters Local 115, 640 F.2d at 403; see United Food, 852
F.2d at 1348; cf. Ishikawa Gasket Am., 337 NLRB 175, 176
(2001) (“The reading of the notice by a respondent is an
‘extraordinary’ or ‘special’ remedy that will be imposed only
where required by the particular circumstances of a case.”)
(emphasis added); the touchstone of the “particularized need”
requirement, as our cases make clear, is evidence of a
“substantial link[]” between the public reading and the unfair
labor practices. United Food, 852 F.2d at 1348; see Teamsters
Local 115, 640 F.2d at 403-04; Conair Corp. v. NLRB, 721 F.2d
1355, 1385-87 (D.C. Cir. 1983); cf. United Food, 852 F.2d at
1349 (“unique and specific facts of a case will more often than
not provide the measure that allows a remedy in one case and
precludes it in another”). By requiring a correlation between the
misconduct and the public reading, we ensure that the latter is a
remedy and not a punishment. Teamsters Local 115, 640 F.2d
at 403 (concluding that “the negative aspects of the order
overwhelm the marginal benefit”); see United Food, 852 F.2d at
1348-49. If there was a “substantial link[]” here, United Food,
852 F.2d at 1348, the Board failed to identify it. In addition to
the public reading, the Board required that the notice of
violations be posted in three languages at the Tampa facility.
See Federated Logistics & Operations, 340 NLRB No. 36, slip
op. at 5. The Board Chairman, in dissent and, in my view,
correctly, criticized the Board’s support for the “particularized
need” for a public reading, see id. at 8 (Battista, Chrmn.,
dissenting in part); the Board merely noted that violations were
committed by “high-level management officials” and posited
that the forced reading was needed “so that employees [would]
fully perceive that [Federated] and its managers are bound by
the requirements of the Act.” Id. at 3-4. As the Board has
shown no particularized need for a public reading “to dispel the
atmosphere of intimidation created in large part by [Federated’s]
own statements and actions,” Conair, 721 F.2d at 1386-87, the
 17

public reading appears, at least to me, wholly punitive. See
Capital Cleaning Contractors, Inc., 147 F.3d at 1009 (remedy
must be “truly remedial and not punitive”). While the majority
cites the Teamsters Local 115 rule that a public reading
requirement will not be enforced absent a “particularized need,”
640 F.2d at 403; see United Food, 852 F.2d at 1348, it in truth
applies an unprecedented and, I believe, incorrect standard,
placing the burden on Federated to “rebut[] the existence of a
particularized need for the public reading requirement.” Maj.
Slip Op. at 19. Because the Board failed to meet the burden it
bears to explain, based on substantial record evidence, how the
“extraordinary” remedies are tailored to redress Federated’s
specific unfair labor practices, see, e.g., United Food, 852 F.2d
at 1347, I would vacate the remedies. See Douglas Foods Corp.
v. NLRB, 251 F.3d 1056, 1068 (D.C. Cir. 2001).
III.
For the foregoing reasons, I am convinced that the Board
provided neither a reasonable explanation nor one based on
substantial record evidence to support its conclusion that
Federated committed an unfair labor practice by threatening
futility if unionization took place. The same goes for the three
“extraordinary” remedies it imposed. Because the majority has
done no better today in upholding the Board on these two
matters, I respectfully dissent from sections II.A and II.D of the
majority opinion.