Cogburn Health Center, Inc. v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 6, 2006 Decided February 24, 2006

No. 04-1430

COGBURN HEALTH CENTER, INC.,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

Consolidated with
No. 05-1017

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

Annette A. Idalski argued the cause for petitioner. With her
on the briefs was Kurt A. Powell. Scot A. Hinshaw and Susan F.
Wiltsie entered appearances.

William M. Bernstein, Senior Attorney, National Labor
Relations Board, argued the cause for respondent. With him on
the briefs were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
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Deputy Associate General Counsel, Fred B. Jacob, Supervisory
Attorney, and Gregory P. Lauro, Attorney.

Before: SENTELLE and HENDERSON, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Cogburn Health Center,
Inc. (also referred to by the Board as Cogburn Healthcare
Center, Inc.) (“Cogburn” or “Company”), a nursing home in
Mobile, Alabama, petitions this court for review of an order of
the National Labor Relations Board (“Board”), and the Board
cross-applies for enforcement. On July 19, 1996, the Board
held a secret-ballot election to determine whether the employees
in a designated bargaining unit at Cogburn desired to be
represented by the United Food and Commercial Workers
Union, Local 1657, AFL-CIO (“Union”). The election results
indicated that 52 employees cast votes in favor of the Union, and
72 against. The Union then filed unfair labor practice (“ULP”)
charges with the Board, and a complaint was issued. The
complaint charged that a majority of the employees in an
appropriate unit at Cogburn had selected the Union as their
bargaining representative by signing authorization cards; that, in
April 1996, Cogburn had rejected the Union’s request to bargain
on behalf of the employees; that Cogburn then engaged in a
campaign of ULPs designed to undermine the Union’s support;
that, because of the serious nature of Cogburn’s ULPs, the
possibility of conducting a fair rerun election was only slight;
and that, in light of this situation, the rights of the employees
would be best served by the Board’s issuance of a bargaining
order. The Board found that Cogburn had indeed engaged in
widespread violations of § 8(a)(1) of the National Labor
Relations Act (“Act”), 29 U.S.C. § 158(a)(1) (2000), including,
but not limited to, unlawful surveillance, interrogations, threats,
 3

and prohibitions on wearing Union insignias. The Board also
found that the Company had discharged five Union supporters
during the organizing campaign in violation of §§ 8(a)(1) and
(3) of the Act, and terminated a sixth employee because of her
Union activities and sympathies, and also because she gave
testimony for the Union in a representation proceeding, in
violation of §§ 8(a)(1), (3), and (4) of the Act. See Cogburn
Healthcare Ctr., Inc., 335 N.L.R.B. 1397 (2001).
To remedy these violations, the Board ordered Cogburn,
inter alia, to cease and desist from engaging in any further
unfair labor practices, post appropriate notices to advise
employees of their rights under the Act, and reinstate the
unlawfully discharged employees and make them whole for
their losses. The Board also issued a Gissel bargaining order,
see NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and held
that Cogburn violated §§ 8(a)(1) and (5) of the Act by refusing
to bargain with the Union on April 18, 1996, when the Union
requested bargaining based on a card majority.
Substantial evidence supports the Board’s determinations
that Cogburn committed the cited ULPs in violation of
§§ 8(a)(1), (3), and (4) of the Act. We therefore enforce the
Board’s order with respect to these charges. We reverse the
Board’s Gissel bargaining order, however, because the Board
failed to credit Cogburn’s properly raised evidence of “changed
circumstances” that arose during the more than three years when
the initial ULP case was pending disposition by the Board. A
few more years passed during which Cogburn’s motions for
reconsideration languished before the Board. Ten years have
now elapsed since Cogburn’s alleged refusal to bargain in April
1996, and there has been substantial turnover in the employee
and management ranks at Cogburn during this period. In the
face of this record, the Board has offered no viable justification
for an affirmative bargaining order. Under the plain law of this
circuit, we reverse the Board’s imposition of a Gissel bargaining
 4

order. Accordingly, we grant in part and deny in part the
Board’s cross-petition for enforcement, and we grant in part and
deny in part Cogburn’s petition for review. The Board’s order
will be enforced with respect to all disputed issues, save for the
Gissel bargaining order.
I. BACKGROUND
A. The Union’s Organizing Campaign
During the time period relevant to our inquiry, Cogburn was
a family-owned and operated nursing home providing medical
care in Mobile, Alabama. In October 1995, the Union began a
campaign to organize Cogburn’s full-time and regular part-time
service and maintenance employees. Over the course of the
following six-to-nine months, Union organizers distributed
leaflets and authorization cards to Cogburn employees who were
exiting and entering Company property. On April 18, 1996,
after collecting signed authorization cards from a majority of the
service and maintenance employees, the Union unsuccessfully
sought to bargain with Cogburn on behalf of the employees.
The Union also petitioned the Board for a representation
election covering the employees. The Board scheduled an
election for July 1996.
Throughout the spring and early summer of 1996, the
Company engaged in a concerted campaign to undermine the
Union’s support. Cogburn hired a “private police force”
consisting of approximately 35 off-duty Mobile city police
officers and installed surveillance equipment directed at the
front of the facility where the Union organizers were rallying
support. The Company also required its employees to attend
mock collective bargaining sessions, at which they were
instructed to follow a script in which the Cogburn representative
rejected every Union offer. Several Company supervisors and
Cogburn co-owner and Vice President, Steve Roberts, conducted
a series of “interrogations” – conversations during which they
 5

questioned employees about Union activities and their and other
employees’ feelings about the Union. Finally, during the course
of the organizing campaign, six well-known Union supporters
were discharged for their Union activities and sympathies.
The Board held a secret-ballot election on July 19, 1996.
Of the approximately 135 eligible voters, 52 cast votes in favor
of the Union, and 72 against. The Union then filed ULP charges
with the Board. After a series of hearings held between March
and September 1997, an Administrative Law Judge (“ALJ”)
found that Cogburn had committed numerous violations of the
Act. The ALJ recommended, inter alia, that the Company be
required to reinstate and grant backpay to the six discharged
employees and to bargain with the Union as the exclusive
representative of the employees. Cogburn Healthcare Ctr., 335
N.L.R.B. at 1425-26.
B. The Board’s Decisions
The Board finally issued a decision on September 27, 2001,
over three years after the ALJ’s decision. The Board found, in
agreement with the ALJ, that Cogburn committed multiple
violations of § 8(a)(1) of the Act in response to the Union’s
organizing campaign. These violations included: coercively
interrogating employees; threatening employees with loss of
benefits, closure of the facility in the event of unionization, and
refusal to rehire any employee who engaged in protected strike
activity; telling employees that the employer would not have to
bargain with the Union; threatening in simulated bargaining
sessions that unionization would be futile; offering to increase
wages and benefits if the Union promised not to file additional
unfair labor practice charges or objections to the representation
election; engaging in surveillance of employee Union activity
with video cameras and a private police force; prohibiting
employees from wearing clothing reflecting Union membership
without permission; and permitting employees who opposed the
Union to leave their work stations and handbill while prohibiting
 6

prounion employees from doing so. Id. at 1399-1400. The
Board also accepted the ALJ’s finding that Cogburn violated
§§ 8(a)(1) and (3) of the Act by discharging employees Hill,
Husband, Wiggins, Langham, and Kirk, and violated §§ 8(a)(1),
(3), and (4) of the Act by discharging employee Collins because
of her Union sympathies and her testimony for the Union at a
Board representation hearing. See id. at 1397.
The Board ordered Cogburn to cease and desist from the
unfair labor practices found and from interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed by § 7 of the Act, 29 U.S.C. § 157 (2000).
Affirmatively, the Board ordered Cogburn, inter alia, to offer
reinstatement to Hill, Husband, Wiggins, Langham, Kirk, and
Collins, and make them whole for any loss of earnings and
benefits they suffered as a result of their unlawful discharges.
The Board also found that the pervasiveness of Cogburn’s unfair
labor practices placed this case in Gissel’s “category II,” and
thus rendered a fair rerun election unlikely. Cogburn
Healthcare Ctr., 335 N.L.R.B. at 1398-99; see Gissel, 395 U.S.
at 614 (describing category II cases as “less extraordinary cases
marked by less pervasive practices which nonetheless still have
the tendency to undermine majority strength and impede the
election processes”). The Board therefore directed that the July
19 election be set aside, and that Cogburn recognize the Union
and bargain upon request. Cogburn Healthcare Ctr., 335
N.L.R.B. at 1403. In support of the Gissel bargaining order, the
Board found that Cogburn violated §§ 8(a)(1) and (5) of the Act
by refusing to bargain with the Union on April 18, 1996, when
the Union demanded recognition and bargaining based on
authorization cards from a majority of the employees in the
designated unit. Id. at 1397.
On November 2, 2001, soon after the Board’s order issued,
Cogburn moved to reopen the record, citing evidence of
“changed circumstances” that rendered the imposition of a
 7

bargaining order unnecessary. Specifically, Cogburn alleged
that the long delay between the unfair labor practices in 1996
and the Board’s decision in 2001, as well as significant
employee and management turnover, made it clear that a
bargaining order was no longer justified.
On June 21, 2004, two and a half years after Cogburn filed
its motion, the Board, with one member dissenting, denied the
Company’s motion to reopen the record. The Board first noted
that Cogburn failed to comply with § 102.48(d)(1) of the
Board’s rules, which requires parties to state “‘why [the
evidence] was not presented previously.’” Cogburn Healthcare
Ctr., Inc., 342 N.L.R.B. No. 11, 2004 WL 1413262, at *2 (June
21, 2004) (quoting 29 C.F.R. § 102.48(d)(1)) (alteration in
Board’s order). The Board questioned why Cogburn “failed to
show that some or all of [its] evidence . . . was not available
during the [three-year] period that the case was pending before
the Board on exceptions.” Id. Without such an explanation, the
Board concluded that Cogburn’s motion “was untimely made.”
Id.
In addition to the alleged procedural flaw in Cogburn’s
motion, the Board also found that Cogburn failed to demonstrate
how its additional evidence “‘would require a different result.’”
Id. at *3 (quoting 29 C.F.R. § 102.48(d)(1)). The Board
reiterated its “established policy” that the propriety of a
bargaining order is assessed only “as of the time that the
[employer] committed the violations,” and not at the time of the
Board’s order. Id. The Board also pointed out that, even taking
into account the post-violation “changed circumstances” alleged
by Cogburn, two supervisors found to have committed various
unfair labor practices were still employed by the Company at the
time of Cogburn’s motion, and the Company did not claim “that
there has been any significant change in the family ownership
group, . . . other than the death of [former co-owner and Vice
President,] Steve Roberts.” Id. Finally, the Board declared that
 8

the “passage of time does not render a bargaining order
inappropriate.” Id.
On August 5, 2004, Cogburn filed a second motion for
reconsideration, claiming that additional employee and
management turnover and the passage of time justified vacating
the Board’s bargaining order. The Board denied Cogburn’s
motion. The Company then filed a timely petition for review
and the Board filed a cross-application for enforcement of its
order.
II. ANALYSIS
A. Unfair Labor Practices
The Board’s findings that Cogburn committed the cited
violations of §§ 8(a)(1), (3), and (4) are “‘supported by
substantial evidence on the record considered as a whole.’”
Palace Sports & Entm’t, Inc. v. NLRB, 411 F.3d 212, 220 (D.C.
Cir. 2005) (quoting 29 U.S.C. § 160(e)-(f) (2000)). The ALJ’s
discussion of the evidence, proposed findings, and
recommended remedies, nearly all of which were adopted by the
Board, are clearly unassailable under the applicable standard of
review. We therefore have no grounds upon which to second-
guess the Board’s determinations with respect to the §§ 8(a)(1),
(3), and (4) ULPs.
B. The Gissel Bargaining Order
1. Timeliness of Cogburn’s Motion for Reconsideration
Shortly after the Board issued its decision in September
2001, Cogburn moved to reopen the record. The Company
argued that the Board should reconsider its decision to impose
a Gissel bargaining order due to “changed circumstances” that
arose during the several years when the ULP case was pending
disposition. The Board denied the Company’s motion largely on
the ground that it was untimely. Cogburn contends that the
Board erred in refusing to address its motion and credit its
 9

evidence of changed circumstances on this procedural ground.
We review the Board’s decision not to reopen the record for an
abuse of discretion. E. Carolinas Broad. Co. v. FCC, 762 F.2d
95, 103 (D.C. Cir. 1985).
Citing its regulations, the Board contends that Cogburn
neglected to “‘state [why] the additional evidence sought to be
adduced . . . was not presented previously.’” Br. for NLRB at
56 (quoting 29 C.F.R. § 102.48(d)(1)). The Board’s finding on
this score is simply wrong. In its motion to the Board, the
Company stated:
Simply put, Cogburn cannot be expected to have presented
evidence of substantial employee turnover and management
changes which did not exist when this matter initially was
presented to the Board, more than three (3) years ago.
Indeed, the longer the Board delayed in issuing its decision,
the more changes occurred during the day to day operations
at Cogburn. As such, Cogburn now should be permitted to
introduce evidence of changed circumstances.
Cogburn Healthcare Center Inc.’s Request to Reopen the Record
and for Reconsideration, Cogburn Healthcare Ctr., Inc. (Nov.
1, 2001) at 8, Joint Appendix (“J.A.”) 30 (hereinafter “Cogburn
Motion”). It is plain that Cogburn explained that it did not
present evidence of changed circumstances when it filed its
1998 exceptions to the Board because those changes took place
over the ensuing three years.
The Board argues that Cogburn could have alerted the
Board to the “changed circumstances” during the three-year
interval between the ALJ’s decision and the Board’s order. To
support this claim, the Board relies on the decision in NLRB v.
U.S.A. Polymer Corp., 272 F.3d 289 (5th Cir. 2001). The Fifth
Circuit noted in Polymer that “[t]he Board’s procedural rules
permit an employer to submit a motion to reopen the record after
the ALJ’s decision but before the Board has ruled.” Id. at 295.
 10

The decision added that “[t]he Board is entitled to assume, in the
face of the parties’ silence, that the facts as initially presented
continue to adequately describe the employer’s workforce.” Id.
at 296. But Polymer also makes it clear that “there is no clear
procedural vehicle for such a motion.” Id. at 295. In our view,
this last point is the most telling. Nothing in the Board’s rules
required Cogburn to advise the Board of every changed
circumstance in its business operation and workforce between
the date of the ALJ’s decision and the Board’s final disposition
of the case. And we will not infer such a requirement.
The changed circumstances here were gradual, incremental,
and cumulative. There was no single event at Cogburn which,
alone, gave clear evidence of “changed circumstances.” Absent
a Board rule requiring it, Cogburn had no reason to think that it
was obliged to file a motion on every occasion of employee
turnover. Cogburn acted reasonably under the circumstances
and the Board abused its discretion in rejecting Cogburn’s
motion as untimely.
2. The Board’s Treatment of Cogburn’s Evidence of
“Changed Circumstances”
Despite deeming Cogburn’s motion “untimely,” the Board
nonetheless went on to consider Cogburn’s claim that “changed
circumstances” now “require a different result,” or, more
precisely, a different remedy. In its motion, Cogburn asserted
that a Gissel bargaining order was no longer necessary, because,
in the five years since the organizing campaign and election,
there had been substantial changes at the Company. Examples
of these changes included the following information: (1) only
44% of Cogburn’s 169 designated bargaining unit employees in
2001 were employed during the Union election campaign; (2) of
the 82 employees that signed authorization cards, only 25 were
still employed in 2001; (3) there had been significant
management turnover, including the death of the Company’s co-
owner and Vice President, Steve Roberts, who was identified by
 11

the Board as a major perpetrator of Cogburn’s ULPs, and the
replacement of Company co-owner and Administrator, Suzanne
Hughes, who was also responsible for various ULPs; and (4)
subsequent to the ALJ’s decision in 1998, no ULP charges had
been filed. See Cogburn Motion at 2, 5-6, J.A. 24, 27-28. Based
on these developments and the long passage of time between the
alleged ULPs and the issuance of the bargaining order, Cogburn
argued that it was now possible for the Board to hold a fair and
impartial election. Id. at 8, J.A. 30.
This court has, on numerous occasions, directed the Board
to provide a reasoned analysis when considering the imposition
of a bargaining order. See, e.g., Douglas Foods Corp. v. NLRB,
251 F.3d 1056, 1065 (D.C. Cir. 2001); Vincent Indus. Plastics,
Inc. v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000); Flamingo
Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1170 (D.C. Cir.
1998); Avecor, Inc. v. NLRB, 931 F.2d 924, 937-39 (D.C. Cir.
1991). The required analysis must contain “an explicit
balancing of three considerations: (1) the employees’ § 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., 209 F.3d at 738.
Furthermore – and most relevant here – we have made it clear
that the Board must consider the appropriateness of a bargaining
order at the time the order is issued. See Charlotte
Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1079 (D.C. Cir.
1996); Avecor, 931 F.2d at 937.
The Board may have undertaken a thorough Gissel analysis
with respect to the information it had at the time of its original
order in 2001. See Cogburn Healthcare Ctr., 335 N.L.R.B. at
1398-1401. But its analysis failed when Cogburn proffered
evidence of “changed circumstances.” In response to Cogburn’s
motion to reopen the record, the Board stated:
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Although [Cogburn] has recited changed circumstances as
grounds for rescinding the Gissel order, the Board’s
established policy is to assess the propriety of a bargaining
order as of the time that the respondent committed the
violations. We therefore conclude that [Cogburn]’s motion
does not comply with the Board’s Rules.
Cogburn Healthcare Ctr., 2004 WL 1413262, at *3. The
Board’s decision on this point was wrong as a matter of law. As
we explained in Charlotte Amphitheater:
Circumstances . . . may change during the interval between
the occurrence of the employer’s unfair labor practices and
the Board’s disposition of a case. There is, therefore, the
obvious danger that a bargaining order that is intended to
vindicate the rights of past employees will infringe upon the
rights of the current ones to decide whether they wish to be
represented by a union. Therefore, we have repeatedly
instructed the Board to determine the appropriateness of a
Gissel bargaining order in light of the circumstances
existing at the time it is entered.
82 F.3d at 1078 (emphasis added). “If the Board continues to
disagree with us, it is of course free to seek Supreme Court
review.” Id. at 1079. But “[s]o long as the Board persists on its
current course we have no choice but to remand each offending
order.” Douglas Foods, 251 F.3d at 1067.
The Board points out that in Charlotte Amphitheater, this
court stated that “‘the Board has no affirmative duty to inquire
whether employee turnover or [the] passage of time has
attenuated the effects of earlier unfair labor practices.’” Br. for
NLRB at 53 (quoting Charlotte Amphitheater, 82 F.3d at 1080).
But our decision in Charlotte Amphitheater also states that “an
employer must be allowed the opportunity to introduce evidence
of changed circumstances that would mitigate the need for a
bargaining order.” Charlotte Amphitheater, 82 F.3d at 1080.
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There is no doubt here that the Board was obligated to consider
thoroughly Cogburn’s timely motion to reopen the record.
The little bit that the Board offered in a defense of the
proposed Gissel bargaining order falls far short of what is
necessary. With respect to Cogburn’s claims of management
turnover – the death of co-owner and Company Vice President,
Steve Roberts, and the departure of co-owner and Company
Administrator, Suzanne Hughes – the Board responded that
Hughes’s replacement, Prentiss Smith, played a role in illegally
thwarting the Union’s organizing drive in 1996, and added that
Dietary Manager, Sonya O’Shea, who was found to have
interrogated three employees and threatened other employees
with facility closure, had been rehired after a two-year absence
from the Company. The Board also claimed that Cogburn “d[id]
not contend that there has been any significant change in the
family ownership group, . . . other than the death of Steve
Roberts.” Cogburn Healthcare Ctr., 2004 WL 1413262, at *3.
The Board said nothing about employee turnover. Rather, in
response to Cogburn’s evidence of the dwindling percentage of
voting employees still employed by the Company (44%) and the
small percentage of those employees still with the Company
who signed authorization cards (30%), Board counsel argued
that 44% is a “substantial percentage” which constitutes a
“remaining core of employees” sufficient to support a
bargaining order. Br. for NLRB at 58 (quotation marks
omitted).
The Board’s rote treatment of Cogburn’s evidence is
entirely unconvincing. For one thing, as noted above, the Board
simply ignored the evidence of employee turnover. This error
alone dooms the Board’s order, for we have made it clear that
“the Board is not free to disregard employee turnover when
issuing a bargaining order.” Douglas Foods, 251 F.3d at 1066;
see also Avecor, 931 F.2d at 937.
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Moreover, the Board’s cursory review of the change in
Company management hardly reflects reasoned decisionmaking
to which we might otherwise defer. The Board summarily
discounted the departure of two of the most prominent
executives of the Company, who were significantly responsible
for approximately 15 ULPs, five of the 15 instances of unlawful
interrogations, and four of the six discharges. The Board
undertook no analysis of the effect these changes might have
had on the employees and, instead, merely concluded that,
because two management officials still remained, a bargaining
order was the appropriate remedy. And the Board’s suggestion
that Cogburn “does not contend that there has been any
significant change in the family ownership group,” without
more, proves nothing. The Board never made the ownership
group the main culprit for the ULPs; rather the Board’s focus in
the ULP case was on the management group, and most of the
cited managers are no longer with the Company.
Finally, the Board failed to address Cogburn’s perfectly
reasonable argument that the five-year span of time between the
ULPs and the Board’s decision warranted a second look at the
need for a bargaining order. The Board stated, without
explanation, that the “passage of time does not render a
bargaining order inappropriate.” Cogburn Healthcare Ctr.,
2004 WL 1413262, at *3. This is a specious argument, both as
a matter of commonsense and in light of the governing case law.
Time is a factor that should be considered by the Board, along
with employee and management turnover. See Flamingo
Hilton-Laughlin, 148 F.3d at 1171; Charlotte Amphitheater, 82
F.3d at 1078. As we noted in Peoples Gas System, Inc. v.
NLRB:
[W]ith the passage of time, any coercive effects of an unfair
labor practice may dissipate, employee turnover may result
in a work force with no interest in the Union, and a fair
 15

election might be held which accurately reflects uncoerced
employee wishes as of the present time.
629 F.2d 35, 47 (D.C. Cir. 1980). This matter is now 10 years
old, largely because of the Board’s extraordinary delays in case
processing. In this situation, it is the height of chutzpah for the
Board to pronounce that the passage of time is irrelevant.
C. The Appropriate Remedies
There is little question that the Board’s order to reinstate
and make whole the six discharged employees is an appropriate
remedy, as is the Board’s cease and desist order. The Board’s
affirmative bargaining order is another matter, however. The
law of this circuit, which the Board flouted, compels reversal of
the Gissel bargaining order. In some cases involving a disputed
bargaining order, we will remand the case to the Board for
further consideration. In this instance, however, a remand
would be fruitless, because the record in this case cannot support
a bargaining order.
Cogburn tells us that, were we to remand the case, the
Board would find that, at least as of 2004, only 21 of the 82
members of the proposed bargaining unit who signed
authorization cards are still employed by the Company. It
would also learn that, as of 2004, Steve Roberts and Suzanne
Hughes were no longer running the day-to-day operation of the
Company. And it would learn that Prentiss Smith, whose
presence the Board found significant in its denial of Cogburn’s
first motion to reopen the record, has been replaced as the acting
administrator. We need not credit these additional “changed
circumstances,” however, in order to justify a reversal in this
case.
As noted above, the Board’s decision rejecting Cogburn’s
motion to reopen the record gave no hint of reasoned
decisionmaking and it was wrong as a matter of law. Indeed, the
Board made it clear that it had no intention of following the law
 16

of this circuit. The telling point here is that more than a decade
has passed since a majority of employees in the unit signed
authorization cards, making it nearly impossible for the Board
to determine whether a majority of today’s workforce at
Cogburn desires Union representation. At this late stage, only
a new election can accomplish that goal.
III. CONCLUSION
For the reasons articulated herein, we grant in part and deny
in part Cogburn’s petition for review, and we grant in part and
deny in part the Board’s cross-application for enforcement. We
affirm the Board’s substantive conclusions and enforce the
Board’s remedial order insofar as it requires the Company to
cease and desist all unfair labor practices, post notices, and make
whole and offer employment to former Cogburn employees Hill,
Husband, Wiggins, Langham, Kirk, and Collins. Finally, we
hold that there is simply no basis in this record for an
affirmative bargaining order or the Board’s finding that Cogburn
failed to bargain in violation of §§ 8(a)(1) and (5).