United Steel Workers v. NLRB

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STEELWORKERS OF AMERICA 
AFL-CIO-CLC,
Petitioner,
No. 04-76132
v.
NATIONAL LABOR RELATIONS  N.L.R.B. No.
31-CA-26120
BOARD,
Respondent, OPINION
TOWER INDUSTRIES, INC.,
Intervenor.

On Petition for Review of an Order of the
National Labor Relations Board

Argued and Submitted
March 6, 2007—Pasadena, California

Filed April 2, 2007

Before: Ferdinand F. Fernandez, Susan P. Graber, and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Graber

3769
 UNITED STEELWORKERS v. NLRB 3771

COUNSEL

Robert J. Stock and Raja Raghunath, Gilbert & Sackman, A
Law Corporation, Los Angeles, California, for the petitioner.

Stacy G. Zimmerman and Jill A. Griffin, National Labor
Relations Board, Washington, D.C., for the respondent.

Patrick W. Jordan, Jordan Law Group, San Rafael, California,
for the intervenor.
3772 UNITED STEELWORKERS v. NLRB
OPINION

GRABER, Circuit Judge:

Petitioner United Steelworkers of America (“the Union”)
alleged unfair labor practices by Intervenor Tower Industries,
Inc. An administrative law judge (“ALJ”) found that Tower
had violated 29 U.S.C. § 158 and recommended several spe-
cific affirmative remedies, including an order requiring Tower
to recognize and bargain with the Union, commonly known
as a Gissel order.1 A three-judge panel of Respondent
National Labor Relations Board (“NLRB” or “the Board”)
adopted the ALJ’s findings, conclusions, and remedies with
the exception of the suggested Gissel bargaining remedy. The
Union seeks review of the Board’s refusal to impose a Gissel
order.2 On review for a clear abuse of discretion, Cal. Pac.
Med. Ctr. v. NLRB, 87 F.3d 304, 308 (9th Cir. 1996), we deny
the petition.

The relevant facts are not disputed. Tower manufactures
individual and custom machine parts. Between January 7 and
January 24, 2003, Tower had 91 employees who were eligible
for union representation; 57 of them signed union authoriza-
tion cards, authorizing the Union to represent them in collec-
tive bargaining. During that period, on the day of a union-
organizing meeting, Tower disciplined and fired two employ-
ees, Timothy Hays and Walter Reddoch, because of their sup-
port of the union-organizing drive. In the ensuing two months,
Tower disciplined a third employee, Marcelo Pinheiro,
because of his union support, threatened a fourth employee,
Pablo Rodriguez, with reprisal if he supported the Union, and
removed union literature from posting areas while permitting
non-union notices to remain posted. On March 6, 2003, a rep-
1
Such an order is named for NLRB v. Gissel Packing Co., 395 U.S. 575
(1969).
2
The NLRB does not seek enforcement of its order.
 UNITED STEELWORKERS v. NLRB 3773
resentation election was held; only 37 of the 79 votes cast
were cast in favor of representation by the Union.

The Union filed a complaint with the NLRB. An ALJ
found that Tower’s actions constituted unfair labor practices
in violation of sections 8(a)(1) and 8(a)(3) of the National
Labor Relations Act, 29 U.S.C. § 158(a)(1), (3).3 The ALJ
also found that Tower had interfered with the election by cre-
ating an impression of surveillance. The ALJ recommended
that Tower be ordered to cease and desist from anti-union
activities, reinstate and provide restitution to the two employ-
ees who were fired for their support of the union-organizing
drive, expunge all disciplinary reports motivated by union
activity, and post a notice about employees’ union-related
rights in all posting areas. The ALJ also recommended a Gis-
sel order requiring Tower to recognize and bargain with the
Union as the exclusive representative of the employees.
3
Section 8 of the National Labor Relations Act, 29 U.S.C. § 158(a),
enumerates employer actions that constitute unfair labor practices. It
reads, in pertinent part:
It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this title;
....
(3) by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage or
discourage membership in any labor organization . . . .
Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, enu-
merates the union-related rights of employees:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in section 1588(a)(3) of this title.
3774 UNITED STEELWORKERS v. NLRB
A three-judge panel of the NLRB affirmed all of the ALJ’s
recommended findings of fact and conclusions of law. The
panel also affirmed all but one of the ALJ’s recommended
remedies: It disagreed that a Gissel order was warranted.

Under the circumstances of this case, we find,
contrary to the judge, that a Gissel bargaining order
is not necessary. We find that the Board’s traditional
cease-and-desist and other affirmative remedies
including posting of a notice will sufficiently address
[Tower’s] misconduct to ensure that a fair rerun
election can be held, and that these remedies and the
holding of a rerun election will satisfactorily protect
and restore employees’ Section 7 rights.

Consequently, the Board vacated the results of the first repre-
sentation election, ordered a second election, and did not
reach, as moot, the question whether Tower had improperly
surveilled the first election.

The Union petitions for review only with respect to the
Board’s denial of a Gissel order, arguing that the Board’s
explanation was fatally deficient. No party disputes the
Board’s findings of fact or conclusions of law. Thus, this case
presents the question whether the NLRB clearly abuses its
discretion under the National Labor Relations Act when it
gives a conclusory explanation for choosing not to adopt an
ALJ’s recommended remedy of a Gissel order while adopting
the ALJ’s recommended findings of fact, conclusions of law,
and remaining remedies.4 We answer that question “no.”

[1] “The function of striking [an appropriate] balance to
effectuate national labor policy is often a difficult and delicate
responsibility, which the Congress committed primarily to the
National Labor Relations Board, subject to limited judicial
4
As far as we can tell, this is a question of first impression for the Ninth
Circuit and, indeed, for any federal circuit.
 UNITED STEELWORKERS v. NLRB 3775
review.” NLRB v. Truck Drivers Local Union No. 449, 353
U.S. 87, 96 (1957). In determining the appropriate remedy for
an unfair labor practice,

[i]t is for the Board and not the courts . . . to make
that determination, based on its expert estimate as to
the effects on the election process of unfair labor
practices of varying intensity. In fashioning its reme-
dies under the broad provisions of § 10(c) of the Act
(29 U.S.C. § 160(c)),[5] the Board draws on a fund
of knowledge and expertise all its own, and its
choice of a remedy must therefore be given special
respect by reviewing courts.

Gissel, 395 U.S. at 612 n.32. “The Board’s discretion in the
selection of appropriate remedies is exceedingly broad . . . .”
Gen. Teamsters Local No. 162 v. NLRB, 782 F.2d 839, 844
(9th Cir. 1986) (citing Gissel, 395 U.S. at 612 n.32; Fibre-
board Paper Prods. Corp. v. NLRB, 379 U.S. 203, 215-16
(1964); NLRB v. Fort Vancouver Plywood Co., 604 F.2d 596,
602 (9th Cir. 1979)).

Because of the Board’s primary responsibility and exper-
tise, appellate courts review the Board’s choice of remedy for
a clear abuse of discretion. Cal. Pac. Med. Ctr., 87 F.3d at 308.6
5
The text of 29 U.S.C. § 160(c) reads, in pertinent part:
If upon the preponderance of the testimony taken the Board shall
be of the opinion that any person named in the complaint has
engaged in or is engaging in any such unfair labor practice, then
the Board shall state its findings of fact and shall issue and cause
to be served on such person an order requiring such person to
cease and desist from such unfair labor practice, and to take such
affirmative action including reinstatement of employees with or
without back pay, as will effectuate the policies of this subchap-
ter . . . .
6
Courts also review whether the Board supported its findings of fact
with substantial evidence, Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145,
1151 (9th Cir. 2003), applied the law correctly, id., or imposed a rule arbi-
trarily, Sever v. NLRB, 231 F.3d 1156, 1164 (9th Cir. 2000). Here, only
the Board’s choice of remedy is at issue.
3776 UNITED STEELWORKERS v. NLRB
The Board clearly abuses its discretion if its order “is a patent
attempt to achieve ends other than those that can be fairly said
to effectuate the policies of the [National Labor Relations]
Act.” Id. (internal quotation marks omitted).

The Union does not allege that the decision is a patent
attempt to achieve a nefarious end. Rather, the Union essen-
tially argues that the Board’s decision is insufficiently sup-
ported, by drawing a proposed parallel. The Union reasons
that, because clearly articulated reasoning is required to issue
a Gissel order, similarly, clearly articulated reasoning should
be required if the ALJ recommends a Gissel order and the
NLRB chooses not to issue one.

[2] “ ‘It is well-established that an agency’s action must be
upheld, if at all, on the basis articulated by the agency
itself.’ ” Local Joint Exec. Bd. v. NLRB, 309 F.3d 578, 583
(9th Cir. 2002) (quoting Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50
(1983)). Here, the Board’s order is sufficiently explanatory so
that it can be reviewed effectively for a clear abuse of discre-
tion. Its decision as to the Gissel order does not stand alone,
but instead is the final piece to a puzzle constructed of the fac-
tual findings, conclusions of law, and remedial orders that the
Board adopted from the ALJ’s recommendation. The Board
decided that all of the affirmative remedies recommended by
the ALJ were warranted, short of a Gissel order. In other
words, the Board decided that, given Tower’s specific viola-
tions of the National Labor Relations Act, a cease-and-desist
order, rehiring of and giving of back pay to the fired employ-
ees, expungement of disciplinary records, posting require-
ments, and a new election all were necessary—and, taken
together, were sufficient—to remedy Tower’s unfair labor
practices during the first election process.

[3] It is true that, generally, when the Board disagrees with
an ALJ’s findings or conclusions, we conduct a more search-
ing review. See, e.g., Int’l Union v. NLRB, 834 F.2d 816, 819
 UNITED STEELWORKERS v. NLRB 3777
(9th Cir. 1987) (“When, as here, the Board accepts the ALJ’s
basic factual and credibility determinations, it may draw
inferences and conclusions from them different from the
ALJ’s. If it does so, however, we engage in a more searching
review of the record, and the ALJ’s findings become part of
the record for review to be weighed against the evidence sup-
porting the agency.” (citations omitted)); Penasquitos Vill.,
Inc. v. NLRB, 565 F.2d 1074, 1078 (9th Cir. 1977) (“[A]
reviewing court will review more critically the Board’s find-
ings of fact if they are contrary to the administrative law
judge’s factual conclusions.”). That is because this court
reviews the Board’s findings for substantial evidence—not a
clear abuse of discretion. Glendale Assocs., 347 F.3d at 1151.
Additionally, “because the ALJ sees and hears the witnesses,
he or she is in the best position to draw testimonial inferences
and to make findings with respect to credibility.” NLRB v. Big
Bear Supermarkets # 3, 640 F.2d 924, 928 (9th Cir. 1980).
But when the Board adopts an ALJ’s findings of fact, conclu-
sions of law, and all remedies except for a Gissel order, the
two levels of the agency have but one disagreement—whether
the facts and conclusions require the particular remedy of a
Gissel order. Whether a Gissel order is required to rectify
Tower’s unfair labor practices is precisely the kind of narrow
policy decision reserved to the knowledge and experience of
the Board. See NLRB v. Bighorn Beverage, 614 F.2d 1238,
1243 (9th Cir. 1980) (“[T]he determination of whether a bar-
gaining order is warranted is a task, not for the reviewing
courts, but for the Board based on its expert estimate as to the
effects on the election of the unfair labor practices.” (citing
Gissel, 395 U.S. at 612 n.32)).

[4] The fact that courts require greater reasoning when the
Board decides to issue a Gissel order is inapposite to the
Board’s decision instead to order the default remedy.
“[E]lections are the preferred method for ascertaining
employee sentiment.” NLRB v. W. Drug, 600 F.2d 1324, 1326
(9th Cir. 1979) (citing Brooks v. NLRB, 348 U.S. 96, 104 &
n.18 (1954)); see also Gissel, 395 U.S. at 602 (“The Board
3778 UNITED STEELWORKERS v. NLRB
itself has recognized, and continues to do so here, that secret
elections are generally the most satisfactory—indeed the
preferred—method of ascertaining whether a union has
majority support.”). A Gissel order is an “extreme remedy”
warranted only under certain unusual scenarios. Gardner
Mech. Servs., Inc. v. NLRB, 115 F.3d 636, 642 (9th Cir.
1997). Because of the extreme nature of a Gissel order, courts
depart from the usual deference given to the Board’s choice
of remedy and require that the Board clearly articulate why a
bargaining order is warranted and why other remedies are
insufficient. Id. at 642-43. By contrast, when the Board
chooses to issue the “preferred,” standard remedy of a rerun
election rather than the “extreme” remedy of a Gissel bargain-
ing order, the justification and need for the safeguard of
detailed, clear articulation are absent. Stated another way, the
Board’s decision to order an unextraordinary remedy does not
merit an extraordinary explanation.

[5] In summary, we hold that the Board’s explanation is
sufficient for review and that its chosen remedies are not a
clear abuse of discretion.

PETITION FOR REVIEW DENIED.