Date: 09-28-2017

Case Style:

Case Number: 16-3328

Judge: Murphy

Court: United States Court of Appeals for the Eighth Circuit (St. Louis County)

Plaintiff's Attorney: Not Available

Defendant's Attorney: Not Available

Description: Some production and sanitation employees of Southern Bakeries ("Southern"
or "company") attempted several times to end their representation by the Bakery,
Confectionary, Tobacco and Grain Millers Union, Local 111 ("union"). The National
Labor Relations Board ("NLRB" or "Board") twice prevented union decertification
votes due to Southern's unfair labor practices that would have tainted such votes.
After employees later filed a withdrawal petition, the company withdrew its
recognition of the union, and the union again filed an unfair labor practices charge.
An administrative law judge ("ALJ") determined that Southern had committed a
number of unfair labor practices that had tainted the withdrawal petition. A divided
panel of the Board adopted the majority of the ALJ's rulings and, among other things,
ordered the company to recognize and bargain with the union. Southern now
petitions for review of the Board's order and the Board cross petitions for
enforcement. For the reasons that follow, in substantial part we deny Southern's
petition for review and grant the Board's cross petition to enforce its order. We also
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grant the petition for review and deny the cross petition for enforcement as to several
portions of the Board's order.
I. Facts
Southern Bakeries is a commercial bakery that in 2005 purchased its facility
from Meyer's Bakeries. Southern hired most of the employees and recognized the
existing union as the bargaining representative for the approximate 200 production
and sanitation employees. Southern and the union negotiated several subsequent
collective bargaining agreements. The most recent expired in February 2012.
In 2009 a Southern employee petitioned the Board for an election to decertify
the union. Most of the employees voted to retain the union. Another decertification
petition was filed in December 2011. The union then alleged that Southern had
engaged in unfair labor practices. No election was held after the Board determined
that Southern had unlawfully assisted the decertification petition. These charges were
later settled without Southern admitting fault.
Southern started restricting the union's access to its bakery in March 2012. The
previous collective bargaining agreement had allowed the union bakery visits to
ensure that the agreement was being honored. According to union representative
Cesar Calderon, however, the union had in practice been free to meet with employees
in the break area with no restrictions as to topic or frequency. Southern now
repeatedly told the union that it could only discuss compliance with the previous
collective bargaining agreement and could not lobby employees about the
decertification efforts. Southern moved Calderon's visits to a small cubicle with only
one chair and no table, and director of manufacturing Dan Banks threatened to call
the police if Calderon met with employees in the break area. Subsequently, on March
23, Southern banned him from visiting with employees at the bakery after the
company had allegedly received reports about his harassing employees. After some
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seven months he and other union representatives were again allowed to visit with
employees at the bakery. Southern continued to limit their access and emphasized
that they were not permitted to solicit union support.
In May 2012, employee John Hankins filed a third decertification petition with
the Board. It had been signed by a majority of bargaining unit employees. A
decertification vote was scheduled for February 2013, but when union representatives
came to the bakery in January 2013, they discovered that without notice or
bargaining, Southern had installed surveillance cameras and divided the break area
with plywood. The company claimed that it had installed the cameras to deter theft
and replaced the windows with plywood to provide adequate ventilation.
Southern posted a memo to employees in January 2013 stating that the union
appeared to have plans to take employees on strike as it had at Hostess bakeries,
which had resulted in 18,000 lost jobs and 33 closed bakeries. Over the next month,
Southern executive Rickey Ledbetter gave a series of mandatory speeches that
between 150 and 170 bargaining union employees were required to hear. In the first
speech he told them that unions can harm companies in many ways and leave less
money for employee wages and benefits. Ledbetter specifically referred to Meyer's
Bakeries and Hostess, stating that the strike at Hostess had caused 18,000 people to
lose their jobs and 33 bakeries to be closed.
Ledbetter repeated similar points in later speeches. He said that strikes
sometimes backfire and hurt employees and their families, that strikers can be
permanently replaced, and that jobs can be lost at a striking facility. He told the
employees that "[i]f a strike does succeed in crippling a company," it might thereafter
be unable to meet customer demands and survive. He also added that Southern
employees who were not represented by a union had received pay increases each year
while the bargaining unit employees had not received raises in three of the prior five
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years. The union thereafter filed unfair labor practice charges, and the Board declined
to hold the decertification election that had been scheduled for February 2013.
Southern disciplined a number of pro union employees between March and
May 2013. After Sandra Phillips discussed the closure of Hostess with another
employee and gave him a related newspaper article, she was investigated and received
a written warning. Vicki Loudermilk and Lorraine Marks were also investigated after
discussing votes with another employee. After Marks left the production line for an
emergency bathroom break of fewer than five minutes when no supervisor was
available to give permission, she was suspended for six days. Southern officials also
urged individual employees to oppose the union for their wages to increase and to
avoid the kind of strike that purportedly caused Hostess to fail.
In June 2013 Hankins submitted a petition to the company signed by a majority
of the bargaining unit employees. They asked Southern to withdraw recognition of
the union which Southern did. The union did not regard its withdrawal as legitimate,
however. Several months later, the company unilaterally raised employee wages by
an average of 27 cents per hour without notice or bargaining.
The Board then filed its complaint against Southern. Before the ALJ issued a
ruling on the charges, however, the Board filed a petition for injunctive relief. The
district court then enjoined Southern from refusing to recognize the union. This
injunction was later vacated by our court on the ground that the Board had not
sufficiently shown a threat of irreparable harm, in part because the union lacked the
support of most employees. See McKinney ex rel. NLRB v. S. Bakeries, LLC, 786
F.3d 1119 (8th Cir. 2015). Thereafter, the ALJ determined in the administrative
proceeding that Southern had engaged in a number of unfair labor practices. The
company and the Board's general counsel each filed exceptions to the ALJ's decision.
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A three member panel of the Board largely affirmed in a split decision. The
majority decided that Southern had interfered with employees' exercise of collective
bargaining rights, thus violating § 8(a)(1) of the National Labor Relations Act
("NLRA" or "Act"). Southern had threatened discipline, job loss, and other
unspecified reprisal for protected activity; interrogated employees about protected
activity; created the impression of surveillance of such activity; assured employees
that continued unionization was futile; promised benefits if they did not retain the
union; disparaged the union; threatened closure of the company; and implemented a
rule requiring that employees report harassment. The Board also determined that
Southern had discriminated against employees to discourage unionization, in
violation of § 8(a)(3) and (1), by investigating and disciplining Loudermilk, Marks,
and Phillips because of their union activity. It finally concluded that the company
had failed to bargain with the union, violating § 8(a)(5) and (1) of the Act, when it
withdrew recognition from the union, unilaterally installed surveillance cameras in
the break area, unilaterally changed the union's plant access rights, barring it from
entering the plant for much of 2012 and after February 2013, and unilaterally
increased employee wages in September 2013.
The Board ordered Southern to remedy these violations. Southern was ordered
to cease its unlawful conduct, bargain with the union, restore union access rights, and
reverse employee discipline. The third member of the panel concurred in part but
dissented in part, arguing that although the company's campaign statements were
lawful, its withdrawal of union recognition had not been because of the unfair labor
practices it had committed. Southern then filed the current petition for review of the
Board's order, and the Board filed a cross petition for enforcement. Southern claims
that the Board erred by concluding that the company violated § 8(a)(1), (3), and (5).
We will address each set of violations in turn.
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II. Analysis
When reviewing an NLRB order, we "afford[] great deference to the Board's
affirmation of the ALJ's findings." Cintas Corp. v. NLRB, 589 F.3d 905, 912 (8th
Cir. 2009) (internal quotation marks omitted). We will enforce the Board's "order as
long as the Board has correctly applied the law and its factual findings are supported
by substantial evidence on the record as a whole." Id. (internal quotation marks
omitted). We have defined substantial evidence to mean "such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion." Id. (internal
quotation marks omitted). To determine whether the Board's decision is supported
by substantial evidence, we also consider adverse evidence. See Nichols Aluminum,
LLC v. NLRB, 797 F.3d 548, 553 (8th Cir. 2015). Although the Board is permitted
to draw reasonable inferences and may select between conflicting accounts of the
evidence, it may not "rely on suspicion, surmise, implications, or plainly incredible
evidence." Id. (internal quotation marks omitted). On legal issues, "we defer to the
Board's interpretation of the Act, so long as it is rational and consistent with that
law." NLRB v. Am. Firestop Sols., Inc., 673 F.3d 766, 768 (8th Cir. 2012).
A. Section 8(a)(1) violations
Section 7 of the Act guarantees employees the right to organize and bargain
collectively. See 29 U.S.C. § 157. Under § 8(a)(1), an employer commits an unfair
labor practice if it "interfere[s] with, restrain[s], or coerce[s] employees in the
exercise of their rights" under § 7. Id. § 158(a)(1). Section 8(c) provides that "[t]he
expressing of any views, argument, or opinion, or the dissemination thereof . . . shall
not constitute or be evidence of an unfair labor practice . . . if such expression
contains no threat of reprisal or force or promise of benefit," id. § 158(c), and thereby
"implements the First Amendment," NLRB v. Gissel Packing Co., 395 U.S. 575, 617
(1969).
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Southern argues that the Board erred in determining that it violated § 8(a)(1)
of the NLRA by making a number of unlawful campaign statements that threatened
plant closure, communicating that unionization was futile, promising benefits if the
union was decertified, creating a harassment reporting rule, and disparaging the
union. The company also challenges the Board's determination that it violated
§ 8(a)(1) by creating the impression that union activity was under surveillance,
interrogating employees, and threatening discipline, job loss, and other reprisals. We
will consider each of these determinations.
1. Plant closure threats
Southern claims that the Board erroneously determined that it violated § 8(a)(1)
of the Act by threatening plant closure if the union was not decertified. The NLRA
allows an employer to predict the effects of unionization only if such prediction is
"carefully phrased on the basis of objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his control or to convey a management
decision already arrived at to close the plant in case of unionization." Gissel, 395
U.S. at 618. Under Gissel, the expression "of the employer's belief, even though
sincere, that unionization will or may result in the closing of the plant" is a violation
of § 8(a)(1) "unless, which is most improbable, the eventuality of closing is capable
of proof." Id. at 618–19 (internal quotation marks omitted); see also NLRB v. Noll
Motors, Inc., 433 F.2d 853, 854–56 (8th Cir. 1970).
In one of the captive audience meetings, Southern executive Rickey Ledbetter
said to the company's employees:
From an economic standpoint, we do not want a union because we
believe it drags our Company down in so many ways. If we can't meet
or beat the competition we can't survive. Just look at what happened to
the Hostess Bakeries, Automobile companies and Steel companies.
Unions strangled these companies to death. . . . There are lots of things
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a union can do to hurt these ingredients for success. Higher costs, less
flexibility, lower productivity and loss of team unity can be crippling to
a business and cost employees their jobs.
In another speech, Ledbetter told employees that "[j]ust because the contract is for a
certain period of time doesn't mean that a company has to stay open or keep all of its
employees during that period."
In a similar case, we determined that an employer violated § 8(a)(1) when it
"called [employees'] attention to other plants in the community where employees had
been laid off following their vote to unionize." Noll Motors, 433 F.2d at 854. We
concluded that "the employer's prediction was not carefully phrased to demonstrate
probable consequences beyond [its] control nor to convey a management decision
already arrived at to close the plant in case of unionization." Id. at 856. Rather, the
employer's statements were "phrased to predict that unionization would inevitably
cause the plant to close, throwing employees out of work regardless of the economic
realities." Id.; see also NLRB v. Mark I Tune-Up Ctrs., Inc., 691 F.2d 415, 417 (8th
Cir. 1982) (per curiam). We also conclude that substantial evidence supports the
Board's determination that Southern's statements implied an unlawful threat that
continued unionization would cause the bakery to close and employees to lose their
jobs. Although the company argues that it also assured employees that it would
continue to work with them under the same conditions if the union prevailed, these
assurances did not make its threats of plant closure lawful. Cf. A.P. Green Fire Brick
Co. v. NLRB, 326 F.2d 910, 914 (8th Cir. 1964).
2. Futility statements
Southern claims that the Board erred by determining that it violated § 8(a)(1)
by communicating to employees that continued unionization was futile. During
captive audience meetings, Southern management told employees that the union
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could only make promises but could not guarantee that they would come true. The
company also told employees that the union would only win what the company was
voluntarily willing to give and that "a union is powerless in guaranteeing changes."
While the Board found that these statements suggested that unionization was futile,
it did not determine that they contained a "threat of reprisal or force or promise of
benefit." 29 U.S.C. § 158(c). The Board therefore erred in determining that these
statements violated the NLRA. See id.
3. Promises of benefits
The Board also determined that Southern had committed an unfair labor
practice under § 8(a)(1) by promising employees benefits if they were to decertify the
union. Southern argues that its speeches merely explained to employees the costs
associated with dealing with a union and provided wage information for non union
employees. In one speech, Ledbetter had stated the company's desire to "work
together" with the union "to make Southern Bakeries a successful, competitive
company that can provide greater job security and better wages and benefits for all
of us." Later in the speech, he said, "If you think about the issue logically, you will
know the answer to the question of what will happen to your wage, benefits and
working conditions if the . . . union is voted out." These statements implied that
Southern would provide benefits to employees if they voted out the union and
therefore provide substantial evidence to support the Board's conclusion.
4. Harassment reporting rule
Southern disputes the Board's determination that it violated § 8(a)(1) by
promulgating an unlawful reporting rule. In the speech at issue, Ledbetter instructed
employees as follows:
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Keep in mind that the company is not the only party to this election that
has a right to state its views. The union has the same right—and so do
you. The most important thing you can do for yourself in the weeks
leading up to the election is learn and consider the facts—not rumors,
not lies, not groundless fears, but facts. Some of you may have faced
harassment or intimidation because you signed a decertification petition
or otherwise oppose the union. If any of you are harassed or threatened
on any basis during this election campaign, regardless of whether you
are for or against the union, we want to know about it immediately so we
can address the problem, just as we always have.
We will not tolerate the abuse of any employee rights in this work place.
But to remedy the problem and prevent recurrence, you must bring it to
our attention.
We have previously enforced an NLRB order finding that an employer violated
§ 8(a)(1) when it asked "its employees to report union solicitation activities." Bank
of St. Louis v. NLRB, 456 F.2d 1234, 1235 (8th Cir. 1972) (per curiam). In that case,
an executive had "received a report from supervisors that some employees were
'badgering and pestering' other employees during working hours to sign Union
authorization cards." Id. He had then written a letter to employees stating, "[I]f you
are threatened in any way or subjected to constant badgering by union proponents to
sign these cards, please report these matters to your Department Head immediately."
Id. The NLRB "concluded that in the context of the general anti-union tenor of the
letter, the concluding paragraph could reasonably be interpreted by the employees to
request the reporting to management of the names of employees who were engaging
in persistent union solicitation," and we upheld the Board's determination. Id.
The facts in the present case are similar to those in Bank of St. Louis, and we
conclude that substantial evidence supports the Board's determination that Ledbetter's
statements were unlawful. Although the reporting rule was worded in neutral terms,
it was announced by Ledbetter immediately after his comments about union
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harassment of opponents. And while a statement encouraging employees to report
harassment might appear harmless, Ledbetter's comments may have been understood
to equate persistent union activity with harassment. The NLRA allows employees to
"engage in persistent union solicitation even when it annoys or disturbs the
employees who are being solicited." Brandeis Mach. & Supply Co. v. NLRB, 412
F.3d 822, 830 (7th Cir. 2005) (quoting Ryder Truck Rental, Inc., 341 N.L.R.B. 761,
761 (2004)). The company encouraged employees to report such purported
"harassment" and stated that it would "address the problem." These statements may
reasonably be understood as a threat of reprisal against employees who solicited their
coworkers to support or oppose the union. Considering the statements in context, we
conclude that the Board's determination that Ledbetter's statements were unlawful
threats was supported by substantial evidence, regardless of whether "we might have
reached a different decision had the matter been before us de novo." Town &
Country Elec., Inc. v. NLRB, 106 F.3d 816, 819 (8th Cir. 1997).
5. Disparagement of union
The NLRB determined that Southern's campaign statements violated § 8(a)(1)
of the NLRA by unlawfully disparaging the union in two ways. First, Southern stated
that "[t]he union appear[ed] to have plans to take our employees out on strike" as it
had at Hostess, which the Board interpreted as a threat that continued unionization
would lead to a strike and plant closure. As discussed above, the Board's conclusion
that this statement threatened plant closure was reasonable. We therefore uphold the
Board's determination that the statement was unlawful.
The Board also concluded that Southern unlawfully disparaged the union "by
appealing to racial prejudice" by its memo to employees stating that it had "raised
concerns that the [union] was discriminating against Hispanics through targeted
grievance allegations." The Board determined that this statement was unlawful
because it was not supported by additional evidence. The Board's practice, however,
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is not to "probe into the truth or falsity of parties' campaign statements." U-Haul Co.
of Nev., Inc., 341 N.L.R.B. 195, 195 (2004). Moreover, the NLRB has not shown
that this statement was a threat to employees. See 29 U.S.C. § 158(c). The Board has
not identified any case in which such a statement has been deemed unlawful
disparagement because it alleges racial prejudice. The NLRB therefore erred in
concluding that this statement was unlawful.
6. Impression of surveillance
Southern also argues that the Board erred in concluding that it violated
§ 8(a)(1) by creating the impression that protected activities were under surveillance
when it installed surveillance cameras in the break area. We have previously
concluded that "[c]reating an impression that a company keeps its employees' union
activities under surveillance violates Section 8(a)(1) because it could inhibit the
employees' right to pursue union activities untrammeled by fear of possible employer
retaliation." NLRB v. Chem Fab Corp., 691 F.2d 1252, 1258 (8th Cir. 1982). The
company does not appear to dispute this rule but instead claims that the ALJ ignored
evidence suggesting that employees would not have believed they were under
surveillance.
The record contains substantial evidence to support the Board's conclusion.
Southern installed cameras in the union's meeting space during the decertification
efforts. The company argues that the cameras pointed only at storage racks and were
installed as a response to employee complaints of theft from these racks. It also
argues that it disconnected the camera in the small breakroom, covered it with a black
garbage bag during union meetings, and received no employee complaint about these
cameras. The company had, however, only disconnected the camera and covered it
with a plastic bag after the union held at least one meeting with the camera
uncovered. Based on the timing and location of the cameras, a reasonable employee
could have felt that the company had surveilled protected activity for at least one
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meeting before the camera was covered. Cf. In re Stevens Creek Chrysler Jeep
Dodge, Inc., 353 N.L.R.B. 1294, 1295–96 (2009). We therefore conclude that
substantial evidence supports the Board's conclusion that the cameras created an
impression of surveillance, at least for a short period of time.
7. Employee interrogations
The Board also determined that Southern violated § 8(a)(1) when it unlawfully
interrogated employees Phillips, Loudermilk, and Marks for engaging in union
activity. The company argues that this finding violated its due process rights because
it had lacked notice of the charge since the administrative complaint had mistakenly
stated that these interrogations occurred during the captive audience meetings. The
Board determined that even though there was such an error in the complaint, Southern
had still been put "on notice of the dates, the individuals, and the basic substance of
the claim, and the parties fully litigated the matter." The Board's decision issued after
the company had received notice of the substance of the claim and the parties had
litigated it, and we therefore decline to find a due process violation. See
McGraw-Edison Co. v. NLRB, 419 F.2d 67, 77 (8th Cir. 1969).
8. Threats of discipline, job loss, and other reprisals
Southern disputes the ALJ's determinations that the company threatened
employees with discipline, job loss, and other unspecified reprisals if they engaged
in union activity. The Board adopted these findings by the ALJ after observing that
the company had merely offered conclusory exceptions and no argument in response
to the ALJ recommendations (other than with respect to Southern's harassment
reporting rule). Since the record shows that Southern filed exceptions and arguments
disputing the ALJ's determination, the Board erred in adopting the ALJ's
recommendation as unopposed. We therefore decline to enforce this portion of its
order.
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B. Section 8(a)(3) violations
Southern next challenges the Board's determination with respect to § 8(a)(3)
and (1) of the Act. The Board determined that Southern violated § 8(a)(3) and (1) by
investigating and disciplining employees Loudermilk, Phillips, and Marks. The
company does not meaningfully challenge the Board's conclusion with respect to
Loudermilk. It does, however, argue that the Board erred with respect to Phillips and
Marks.
Section 8(a)(3) of the NLRA prohibits employers from "discriminati[ng] in
regard to hire or tenure of employment or any term or condition of employment to
encourage or discourage membership in any labor organization."1 29 U.S.C.
§ 158(a)(3). The NLRB applies the Wright Line analysis "when an employer
articulates a facially legitimate reason for its [disciplinary] decision, but that motive
is disputed." NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 780 (8th Cir. 2013);
see also Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.
1981). Under Wright Line, the Board's general counsel bears the initial burden "to
establish that the employee's protected activity was a motivating factor in his or her
eventual [discipline]." RELCO Locomotives, 734 F.3d at 780 (internal quotation
marks omitted). The general counsel satisfies this burden by making a prima facie
showing that "(1) the employee was engaged in protected activity; (2) . . . the
employer knew of the employee's protected activity; and (3) . . . the employer acted
as it did on the basis of anti-union animus." Id. (alterations in original) (quoting
NLRB v. Rockline Indus., 412 F.3d 962, 966 (8th Cir. 2005)). "If the general counsel
meets this burden, the conduct is unlawful unless the employer proves it would have
taken the same action absent the protected activity." Id. (internal quotation marks
omitted).
1Retaliation for protected activity that violates § 8(a)(3) is also a violation of
§ 8(a)(1). See Wilson Trophy Co. v. NLRB, 989 F.2d 1502, 1510 (8th Cir. 1993).
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The company argues that the Board lacked sufficient evidence to support the
determination that it disciplined Phillips for engaging in protected union related
activity. Southern issued Phillips a written warning after she had brought an article
about the Hostess closure onto the bakery floor and given it to another employee.
The company claims that it disciplined Phillips under a legitimate rule banning
newspapers on the floor in order to protect sanitation and safety. The Board
determined that the company's investigation and discipline of Phillips showed,
however, that it had been unlawfully motivated by anti union animus. Phillips
testified that other unnamed employees regularly brought newspapers onto the floor
and had not been investigated or punished. This testimony was sufficient to support
the inference that Southern disciplined Phillips based on anti union animus. The
company failed to prove it would have similarly disciplined her if she had not passed
along a union related article. The Board's determination was thus supported by
substantial evidence.
Southern similarly claims that the Board lacked sufficient evidence to support
its determination that the company had unlawfully punished Marks for her union
activity. Marks was an active union supporter, and the company issued her a one
week suspension and final warning after she left her work area for five minutes to use
the restroom, having been unable to find a supervisor to ask for permission. The
Board adopted the ALJ's determination that this discipline was an unlawful response
to her union activity and that the company had failed to show that it would have
issued the same discipline if Marks had not been actively involved in the union. The
record shows that other employees who took similar breaks had not received such
harsh punishment. This evidence is sufficient to support the Board's determination
that Southern was motivated by anti union animus, and the company did not prove
otherwise.
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C. Section 8(a)(5) violations
Southern finally argues that the Board erred by determining that it failed to
bargain with the union as required by § 8(a)(5) of the NLRA.2 See 29 U.S.C.
§ 158(a)(5). The Board concluded that Southern had failed to meet its § 8(a)(5)
obligations by installing surveillance cameras in the break area without first
negotiating with the union,3 restricting union access to the bakery, withdrawing
recognition of the union in July 2013, and unilaterally increasing employee wages in
September 2013.4
1. Union access to bakery
The Board determined that Southern violated § 8(a)(5) and (1) by limiting the
union's access to the plant in a number of ways. First, it upheld the ALJ's finding that
the company had barred the union from entering the bakery to visit with employees
between March and November 2012. Southern argues that it banned only one union
representative, Cesar Calderon, from the plant during that period, implying that other
union representatives would have been allowed to meet with employees at the plant.
The record shows, however, that Ledbetter refused access to another union official,
2A violation of § 8(a)(5) for failure to bargain with a union is also a violation
of § 8(a)(1) because it interferes with employees' collective bargaining rights. See
Metromedia, Inc., KMBC-TV v. NLRB, 586 F.2d 1182, 1188 (8th Cir. 1978).
3Southern does not dispute that it violated the Act by installing surveillance
cameras without first bargaining or notifying the union. We therefore uphold the
Board's determination on this matter.
4The company's only argument with respect to the September 2013 wage
increase is that since its withdrawal of union recognition was lawful, it was under no
obligation to bargain before raising wages. Because we uphold the Board's
determination that the withdrawal of recognition was unlawful, as explained below,
we also uphold the Board's determination that the wage increase violated § 8(a)(5).
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David Woods, in July 2012. Even though Ledbetter offered conflicting testimony to
the effect that union representatives other than Calderon would have been allowed to
visit the plant, we conclude that there was sufficient evidence to support the Board's
determination that the company had restricted all union access during this time.5
Southern also challenges the Board's conclusion that, even when union
representatives were allowed to visit the bakery, the company had violated the NLRA
because it only permitted union visits for the purpose of ensuring that the collective
bargaining agreement was being followed. Although the agreement provided that a
union representative would be allowed to visit the Southern plant after giving notice
to the company for the purpose of ensuring that the agreement was being carried out,
the Board adopted the ALJ's finding that in practice such visits had not been so
limited. Under the NLRA, if "an employer has a past practice of providing union
representatives access to its facilities, that past practice becomes a term and condition
of employment that cannot be changed without first notifying and bargaining with the
union to agreement or good faith impasse." Frankl ex rel. NLRB v. HTH Corp., 693
F.3d 1051, 1064 (9th Cir. 2012). To establish a past practice, however, the party
bound by such a practice must have been aware of its existence. See In re Regency
Heritage Nursing & Rehab. Ctr., 353 N.L.R.B. 1027, 1027–28 (2009).
We conclude that the Board has not provided evidence that the company was
aware that the union had been using its visits to conduct any business other than
monitoring performance of the collective bargaining agreement. The Board therefore
erred by finding Southern violated the NLRA by making efforts to restrict the union's
visits other than those described in the collective bargaining agreement. The Board
Southern also disputes the determination that 5 at other times it barred union
visits when the company's union steward was not scheduled to work. Since resolution
of the union steward issue is not necessary to support our decision that the company
violated § 8(a)(5) by banning union access, we decline to address the issue. See
NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775, 788 n.8 (1990).
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however did not err in determining that the company violated § 8(a)(5) and (1) by
unilaterally restricting union meetings to a cubicle because the union's meeting space
was a subject of mandatory bargaining. See BASF Wyandotte Corp., 274 N.L.R.B.
978, 980 (1985), enforced, 798 F.2d 849 (5th Cir. 1986).
2. Withdrawal of recognition
The NLRB concluded that Southern committed an additional violation of
§ 8(a)(5) when it withdrew recognition of the union based on the June 2013
withdrawal petition. The Board concluded that this petition had been tainted by the
company's unfair labor practices and therefore ordered the company to continue
recognizing and bargaining with the union. Southern challenges the Board's
bargaining order.
A union generally "enjoys a presumption that its majority representative status
continues." Bryan Mem'l Hosp. v. NLRB, 814 F.2d 1259, 1262 (8th Cir. 1987). This
"presumption can only be rebutted by a good faith belief of the employer, based on
objective factors, that the union has lost its majority status." NLRB v. Am. Linen
Supply Co., 945 F.2d 1428, 1433 (8th Cir. 1991). The "employer is not permitted,
however, to rely on a union's loss of majority support caused by the employer's own
unfair labor practices." Radisson Plaza Minneapolis v. NLRB, 987 F.2d 1376, 1383
(8th Cir. 1993). To determine "whether a causal relationship exists between the
unremedied unfair labor practices and the subsequent expression of employee
disaffection with an incumbent union," the Board considers factors including:
(1) the length of time between the unfair labor practices and the
withdrawal of recognition; (2) the nature of the violations, including the
possibility of a detrimental or lasting effect on employees; (3) the
tendency of the violations to cause employee disaffection; and (4) the
effect of the unlawful conduct on employees' morale, organizational
activities, and membership in the union.
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In Re Miller Waste Mills, Inc., 334 N.L.R.B. 466, 468 (2001), enforced, 315 F.3d 951
(8th Cir. 2003).
Violations are more likely to "have detrimental and lasting effects" if they
involve "coercive conduct such as discharge, withholding benefits, and threats to
shutdown the company operation." Tenneco Auto., Inc. v. NLRB, 716 F.3d 640, 650
(D.C. Cir. 2013). Here, Southern's unfair labor practices included implicitly
threatening to close its bakery, promising benefits if the union was decertified,
punishing employees for union activity, and restricting the union's access to the
bakery. Given the nature and extent of Southern's unfair labor practices in the months
leading up to the June 2013 withdrawal petition, as described above, we conclude that
substantial evidence supports the Board's conclusion that the company had tainted
such petition.
Southern argues that the Board erred in ordering it to bargain with the union
because a majority of bargaining unit employees opposed the union, as shown by the
December 2011 and May 2012 decertification petitions. The 2011 petition did not
show that the union lacked majority support, however, because, as the Board
determined at the time, Southern had assisted in that petition, leading to an unfair
labor practice charge that was later settled. A decertification petition that has been
assisted by the employer is tainted and does not show a lack of majority support. See
Am. Linen, 945 F.2d at 1433–34.
The 2012 petition also failed to show a lack of majority support for the union
because Southern's unfair labor practices had tainted this petition. In the company's
previous appeal of the bargaining injunction, we stated that "the unrefuted evidence
before us indicates a majority of Southern Bakeries' employees have not supported
the Union since at least May 2012 when Hankins circulated his first petition."
McKinney, 786 F.3d at 1124. We explained that "[a]lthough the Director alleged
Southern Bakeries solicited the 2011 petition, an allegation the Company settled
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while denying any fault, the Director has not pointed to evidence suggesting the 2012
petition is not a genuine reflection of employee sentiment." Id. at 1124 n.5.
On its current appeal, however, the Board has produced evidence that the
company first limited—then barred—union access to the bakery during the two
months before the May 2012 decertification petition. Beginning on March 20,
Southern had restricted the union representative's access to the breakroom so
Calderon could then only meet with employees in the adjacent vending machine area.
Although Banks did offer to contact any employee with whom Calderon wanted to
meet, he would do so only after Calderon identified the employee as well as the topic
for discussion. The meeting area was visible to management, and employees were
aware that anyone in attendance could be observed. Three days later, on March 23,
Southern banned Calderon from any visits to bakery employees during the work day,
allegedly because of harassment complaints not found credible by the ALJ. On this
record there was sufficient evidence to support the Board's findings that the 2012
petition was tainted by the company's unfair labor practices.
III. Conclusion
For these reasons we grant Southern's petition for review in part and deny it in
part, and grant the Board's cross petition for enforcement in part and deny it in part,
as described above.
GRUENDER, Circuit Judge, concurring in part and dissenting in part.
By its own terms, the National Labor Relations Act (“NLRA”) is designed to
protect workers, not unions. See 29 U.S.C. § 157; see also, e.g., Lechmere, Inc. v.
NLRB, 502 U.S. 527, 532 (1992) (“[T]he NLRA confers rights only on employees, not
on unions or their nonemployee organizers.”). Notwithstanding this clear statutory
mandate, the Board’s decision protects a union at the expense of employees. It does
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so by trumpeting several alleged unfair labor practices (“ULPs”), the majority of
which are unsupported by substantial evidence. Because I believe that “[t]he wrongs
of the parent should not be visited on the children, and the violations of [this
employer] should not be visited on these employees,” Overnite Transp. Co., 333
N.L.R.B. 1392, 1398 (2001) (Member Hurtgen, dissenting), I respectfully dissent
from the bulk of the court’s opinion.6
I.
Southern Bakeries (“SBC” or “the Company”) operates a commercial bakery
in Hope, Arkansas. SBC began operations in 2005, when it purchased assets from the
defunct Meyer’s Bakeries and hired most of its employees. As Meyer’s successor,
SBC recognized the Bakery, Confectionary, Tobacco Workers and Grain Millers
International Union, Local 111 (“BCTGM” or “the Union”) as the collectivebargaining
agent for the two hundred or so employees in its production and sanitation
unit. The Company and the Union subsequently entered into several collective
bargaining agreements (“CBAs”), the most recent of which expired in February 2012.
Employee-led efforts to remove BCTGM started a few years after SBC took
over the bakery. In 2009, an SBC employee filed a “decertification petition” seeking
to oust BCTGM. The National Labor Relations Board (“NLRB” or “the Board”) held
an election, but a majority of employees voted to retain the Union. Two years later,
employee Nadine Pugh led another decertification campaign. Although a majority
While I might have reached a different 6 conclusion if unencumbered by the
deference we accord agency determinations, I concur in sections II.A.6-7 and II.B as
to the findings that Southern created an impression of surveillance, interrogated
certain employees, and unlawfully investigated and disciplined these employees. I
also agree that Southern did not communicate that unionization was futile, disparage
unions, or threaten discipline or other reprisals, per sections II.A.2, II.A.5, and II.A.8.
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of unit employees called for BCTGM’s ouster in this new petition, the Union filed
“blocking charges.” SBC ultimately settled the allegations with the Board without
admitting fault, but the Board never held an election.
In May 2012, employee-amicus John Hankins filed yet another decertification
petition that was signed by 59 percent of unit employees. This prompted the NLRB
to schedule a new decertification election for February 7, 2013. Over the intervening
eight months, SBC and the Union continued a long-running dispute over BCTGM’s
access to the facility. Also during the campaign period, in January and early February
2013, SBC made its opposition to the Union known in several ways. First, the
Company posted a memorandum suggesting that the Union was planning to lead a
strike similar to one it organized at Hostess Bakeries, which SBC tied directly to the
loss of more than 18,000 jobs at Hostess. Second, SBC’s executive vice president
and general manager, Rickey Ledbetter, gave a series of captive-audience speeches
intended to highlight certain negative facts about unionization. These speeches were
critical of unions in general and of BCTGM in particular. For instance, Ledbetter
repeatedly referenced the Hostess layoffs and suggested that unions had “strangled”
Hostess and a variety of companies in other industries. At the same time, Ledbetter
assured employees that SBC would not retaliate if BCTGM won the election and
pledged to continue bargaining with the Union if it were retained. Additionally, he
told employees, “If any of you are harassed or threatened on any basis during this
election campaign, regardless of whether you are for or against the [U]nion, we want
to know about it immediately so we can address the problem, just as we always have.
We will not tolerate the abuse of any employee rights in this work place.” See ante
at 11 (emphasis added). After these speeches, the Union filed another set of blocking
charges, and the NLRB once again postponed the election pending an investigation.7
7As this court once observed in another blocking-order case, “it appears clearly
inferable . . . that one of the purposes of the Union in filing the unfair practice
charge[s] was to abort [the] petition for an election.” See NLRB v. Hart Beverage
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Undeterred, but frustrated by what he considered to be stall tactics, Hankins
changed strategy. Based on the advice of the National Right to Work Foundation, he
and another employee circulated a “withdrawal petition,” which would allow for the
end of BCTGM representation without an election. Out of 200 unit employees, 66
percent signed the withdrawal petition calling for the Union’s ouster. In July 2013,
after verifying the authenticity of the signatures, SBC withdrew recognition of
BCTGM, denied further Union access to the plant, ceased dues checkoffs, and,
several months later, raised employee wages by an average of 27 cents per hour.
In response, the NLRB Regional Director filed a consolidated complaint
against SBC with the Board on January 10, 2014. An administrative law judge
(“ALJ”) held a four-day hearing on the matter the following month. In mid-July
2014, the ALJ issued a decision finding that SBC committed a series of ULPs that
together “spawned significant disaffection.” Specifically, the ALJ held that SBC had
violated section 8(a)(1) of the NLRA, by interrogating employees about their union
activities, making unlawful campaign statements, promulgating a
harassment-reporting rule, and disparaging the Union; sections 8(a)(3) and 8(a)(1),
by investigating and disciplining certain employees; and sections 8(a)(5) and 8(a)(1),
by unilaterally installing two cameras in the break area, changing BCTGM’s access
rights, wrongfully withdrawing recognition of the Union, and unilaterally raising
employee pay after the BCTGM’s ouster. See ante at 6 (explaining the specific
allegations in greater detail). Based on these findings, the ALJ ordered SBC to
recognize and bargain with BCTGM as the collective-bargaining representative for
unit employees, among other remedies.
Prior to the issuance of the ALJ decision, in February 2014, the NLRB
Regional Director sought section 10(j) injunctive relief in federal court to force SBC
Co., 445 F.2d 415, 420 (8th Cir. 1971). See generally Brief for John Hankins as
Amicus Curiae at 2 n.2 (discussing the strategic use of blocking charges).
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to bargain with BCTGM. On August 14, 2014, the district court granted the NLRB’s
request to reinstate the Union with immediate effect. SBC then appealed the grant of
the injunction, and we reversed in McKinney ex rel. NLRB v. S. Bakeries, LLC, 786
F.3d 1119, 1126 (8th Cir. 2015). Specifically, we held that the district court abused
its discretion in granting the injunction because there was no threat of irreparable
harm in allowing the case to go through the Board’s normal adjudicatory process. Id.
at 1125. Central to this holding was the fact that “the Union lacked majority support
for nearly two years before the Director filed her § 10(j) petition.” See id. While
acknowledging that there was no need to “resolve whether the Company’s allegedly
unlawful activities caused the employees’ disaffection [reflected in the withdrawal
petition],” id. at 1124, we found that “the unrefuted evidence before us indicate[d] a
majority of [SBC] employees ha[d] not supported the Union since at least May 2012
when Hankins circulated his first petition,” id. In other words, although the February
2013 vote had been canceled, there was no indication that the petition represented
anything other than a “genuine reflection of employee sentiment,” id. at 1124 n.5,
confirming evidence that BCTGM “had long been out of favor,” id. at 1125.
Meanwhile, both parties filed exceptions to the initial ALJ decision, and a
three-member panel of the Board adopted the ALJ’s findings and conclusions in
nearly all respects. S. Bakeries, LLC, 364 N.L.R.B. No. 64, at *1 (Aug. 4, 2016).
Where the Board departed, it did so in favor of the Union. For example, the Board
accepted the NLRB General Counsel’s exceptions regarding SBC’s promulgation of
a harassment-reporting rule and interrogation of employees. Id. at *1, *5-7. It also
affirmed the ALJ’s determination that SBC engaged in various unlawful campaign
activities. Id. at *2-5. Member Miscimarra dissented as to the findings concerning
campaign statements, the harassment-reporting rule, and disparagement of the Union.
Id. at *9-10 (Member Miscimarra, dissenting in part). Additionally, the Board
ordered the reinstatement of the Union. SBC now appeals this order, as well as each
of the ULP findings, and the Board cross-petitions for enforcement of its order.
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II.
My primary concern with the Board’s decision is that, based on a number of
questionable findings, it imposes BCTGM on an unconsenting group of workers who
have repeatedly indicated a desire to be free from its representation. Worse still, the
resulting harm to employees could go on indefinitely, as the bargaining order blocks
any future decertification election until the NLRB determines that a “reasonable time”
has passed. See Lee Lumber & Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1460
(D.C. Cir. 1997) (per curiam). Given my view that “the Board’s actions in this matter
are more consistent with the role of an advocate than an adjudicator,” see Fred Meyer
Stores, Inc. v. NLRB, 865 F.3d 630, 642-43 (D.C. Cir. 2017), I would not make
employees wait any longer to exercise their free will.
“We review appeals from the National Labor Relations Board with deference,”
NLRB v. Hardesty Co., Inc., 308 F.3d 859, 862 (8th Cir. 2002), and “[w]e will enforce
the Board’s order if [it] correctly applied the law and its factual findings are
supported by substantial evidence on the record as a whole,” ConAgra Foods, Inc. v.
NLRB, 813 F.3d 1079, 1084 (8th Cir. 2016) (quotation omitted); see also Fred Meyer
Stores, 865 F.3d at 636 (“Judicial review of NLRB determinations in unfair labor
practice cases is generally limited, but not so deferential that the court will merely act
as a rubber stamp for the Board’s conclusions.” (citation omitted)). While we defer
to the Board’s interpretation of the NLRA so long as it is rational and consistent with
the statute, Cellular Sales of Mo., LLC v. NLRB, 824 F.3d 772, 775 (8th Cir. 2016),
we review all other conclusions of law de novo, and we are “not obligated to defer to
[the Board’s] interpretation of Supreme Court precedent under Chevron or any other
principle,” Owen v. Bristol Care, Inc., 702 F.3d 1050, 1054 (8th Cir. 2013) (quotation
omitted). As for factual findings, we have explained that “[s]ubstantial evidence is
more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” ConAgra Foods, 813 F.3d at 1084
(citation omitted). We also are required, however, to consider adverse evidence and
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to weigh the strengths and weaknesses of the Board’s inferences. Nichols Aluminum,
LLC v. NLRB, 797 F.3d 548, 553 (8th Cir. 2015). While the Board is permitted to
draw reasonable inferences based on the record, it cannot rely on “suspicion, surmise,
implications, or plainly incredible evidence.” Id. (citation omitted). Because several
of the Board’s conclusions regarding the alleged violations of sections 8(a)(1) and
8(a)(5) either are not supported by substantial evidence or are based on a
misapplication of governing law, I respectfully dissent from the portions of the
court’s opinion upholding these findings.
A. Section 8(a)(1) violations
Section 7 of the NLRA guarantees employees “the right . . . to form, join, or
assist labor organizations, to bargain collectively . . . and to engage in other concerted
activities for the purpose of collective bargaining [as well as] the right to refrain from
any or all of such activities.” 29 U.S.C. § 157. Section 8(a)(1), in turn, makes it an
unfair labor practice for employers “to interfere with, restrain, or coerce employees
in the exercise of [their] rights” under section 7. Id. § 158(a)(1). At the same time,
an employer retains the right to communicate to 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., 395 U.S. 575, 618 (1969) (quoting 29 U.S.C. § 158(c));
see also Fred Meyer Stores, 865 F.3d at 642 (“[W]ords of disparagement alone
concerning a union or its officials are insufficient for finding a violation of Section
8(a)(1).” (citation omitted)); Children’s Ctr. for Behavioral Dev., 347 N.L.R.B. 35,
35 (2006) (“[A]n employer may criticize, disparage, or denigrate a union without
running afoul of Section 8(a)(1), provided that its expression of opinion does not
threaten employees or otherwise interfere with the Section 7 rights of employees.”).
See generally U.S. Const. amend. I.
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The Board found that SBC committed eight ULPs under section 8(a)(1), and
the court affirms five of these determinations. See ante at 9-10, 12-14. I believe that
the Board erred in its conclusions concerning three of the remaining five purported
unfair labor practices—that SBC threatened plant closure, promised benefits, and
promulgated an unlawful rule—because its findings impermissibly relied on
suspicion and implications and failed to adequately account for adverse evidence.
1. Threats of plant closure
The Board’s conclusion that SBC unlawfully threatened plant closure involved
three related errors. First, the Board incorrectly applied the Supreme Court’s decision
in NLRB v. Gissel Packing Co. by implying that Ledbetter’s statements were
predictions about “precise effects.” See 395 U.S. at 618. Second, the Board
misinterpreted as threats Ledbetter’s comments about the potential economic effects
of union retention. Finally, the Board gave insufficient weight to the numerous
instances in which SBC expressed its commitment to continue bargaining with the
Union if it were retained, mitigating any reasonable perception of a threat.
a. No predictions of “precise effects”
The Board applied the wrong standard in concluding that Ledbetter’s campaign
statements were unlawful because they were not “carefully phrased on the basis of
objective fact.” See S. Bakeries, 364 N.L.R.B. No. 64, at *4 (quoting Gissel, 395 U.S.
at 618). Under Gissel, not all campaign speech is required to meet this stringent
standard. See 395 U.S. at 618. Rather, the “carefully phrased” requirement applies
only to an employer’s statements that “make a prediction as to the precise effects he
believes unionization will have on his company.” Id. (emphasis added).
Notwithstanding the Board’s insinuations to the contrary, the record betrays no
indication that Ledbetter made a single “prediction” of the “precise effects” that
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retaining BCTGM would have on employees, such as layoffs or closure. Instead, as
dissenting Member Miscimarra explained, “Ledbetter merely conveyed general views
about unionization (e.g., that unions have ‘strangled’ companies in various industries)
and views on a particular union (that the BCTGM had contributed to the demise of
Hostess).” S. Bakeries, 364 N.L.R.B. No. 64, at *15 (Member Miscimarra, dissenting
in part). Even Ledbetter’s statements about the potential impact that a retention vote
could have on SBC’s success in a competitive market were cabined to general
observations about how unions can affect a company’s ability to compete. “Of course
the employees are free to draw their own conclusions therefrom, but employee
conclusions are certainly not to be viewed as employer predictions.” Michael’s
Markets, 274 N.L.R.B. 826, 826 (1985); see also Crown Cork & Seal Co. v. NLRB,
36 F.3d 1130, 1134 (D.C. Cir. 1994) (finding that a letter could not be read to
threaten plant closure because it linked job preservation to the plant’s ability to
compete regardless of unionization); EDP Med. Comput. Sys., Inc., 284 N.L.R.B.
1232, 1264 (1987) (holding that employers have a “right to . . . stat[e] ‘economic
reality’ by informing employees of [unionized companies that had closed].”).
The Board erroneously imposed Gissel’s “carefully phrased” requirement on
all campaign speech involving “predictions.” However, as the D.C. and Sixth
Circuits have held in interpreting Gissel, such general commentary does not trigger
the “carefully phrased” standard. See, e.g., Flamingo Hilton-Laughlin v. NLRB, 148
F.3d 1166, 1173 (D.C. Cir. 1998) (concluding that statements such as “loss to
employees was an inevitable consequence of their unionizing” are “partisan, but
largely permissible”); NLRB v. Pentre Elec., Inc., 998 F.2d 363, 369 (6th Cir. 1993)
(“[A]n employer may make predictions of consequences that will occur no matter
how well disposed the company is toward unions, and such predictions are not
unlawful threats of retaliation . . . [where] nothing in the record demonstrates that the
predicted consequences were driven by [the employer’s] desire to punish employees
for a pro-union vote.”), abrogated on other grounds by Holly Farms Corp. v. NLRB,
517 U.S. 392, 409 (1996). These circuits instead preserve the “highly desirable
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[exchange of ideas wherein] employees involved in a union campaign . . . hear all
sides of the question in order that they may exercise the informed and reasoned
choice that is their right.” NLRB v. Lenkurt Elec. Co., 438 F.2d 1102, 1108 (9th Cir.
1971). As such, I would follow these courts in concluding that there are campaign
predictions, like Ledbetter’s, that do not trigger the “carefully phrased” requirement.
b. Economic predictions and historic references
The Board also erred by misconstruing SBC’s campaign statements as threats
of plant closure. While there is often a risk that employer predictions concerning the
consequences of unionization could be interpreted as a pledge to effectuate them, that
danger alone is insufficient to convert such predictions into unlawful threats of
reprisal. See NLRB v. Village IX, Inc., 723 F.2d 1360, 1367 (7th Cir. 1983)
(distinguishing between predictions of inevitability and threats of retaliation). Based
on their plain meaning, the comments at issue here merely conveyed SBC’s opinions
as to the potential economic repercussions that might accompany union retention,
based in part on a historical reference to the Hostess layoffs and other past plant
closures. Nevertheless, in a single, conclusory sentence, the court suggests that
SBC’s references to the Hostess closure and Ledbetter’s speeches were “phrased to
predict that unionization would inevitably cause the plant to close” and thus
constituted an implicit threat against union retention. See ante at 9 (quoting NLRB
v. Noll Motors, Inc., 433 F.2d 853, 856 (8th Cir. 1970)).
Yet, “as the dictionaries tell us, 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., 36 F.3d at 1138 (citation omitted).
“For a statement to constitute a threat, it must at least purport to describe an action
the speaker or author of the statement may take.” S. Bakeries, 364 N.L.R.B. No. 64,
at *12 (Member Miscimarra, dissenting in part). Neither the court nor the Board
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point to a single instance where Ledbetter predicted “the precise effects that
continued unionization would have on the Hope bakery, and he certainly did not
either state or predict that the Hope bakery would close unless employees voted to
decertify the Union.” Id. at *15. In discussing how SBC might respond to retention,
Ledbetter did not so much as hint at retaliation or otherwise imply that the Company
would “throw employees out of work regardless of the economic realities.” See
Gissel, 395 U.S. at 619. Rather, he described only what the Union might do and the
economic impact that could result.
An employer is free to tell employees “what he reasonably believes will be the
likely economic consequences of unionization that are outside his control,” as
distinguished from “threats of economic reprisal to be taken solely on his own
volition.” Id. at 619 (citation omitted). Otherwise, “[i]f § 8(c) does not permit an
employer to counter promises of pie in the sky with reasonable warnings that the pie
may be a mirage, it would indeed keep Congress’ wor[d] of promise to the ear but
break it to the hope.” NLRB v. River Togs, Inc., 382 F.2d 198, 202 (2nd Cir. 1967).
Accordingly, I believe the Board erred by inferring unlawful threats from SBC’s
economic predictions about unionization and references to relevant historic events.
c. Commitment to continued good-faith bargaining
The final consideration weighing against the Board’s finding that SBC
threatened plant closure is that SBC repeatedly and consistently committed to bargain
with the Union if employees voted for retention. In his speeches, Ledbetter reiterated
this point in various ways, such as: “I want to stress that if the [U]nion were somehow
to win the election and continue to represent you, we wouldn’t reduce wages,
benefits, or working conditions just because the [U]nion won.” These and other
similar pledges led Member Miscimarra to conclude that SBC effectively conveyed
the sentiment that “[the Company] would continue to bargain in good faith with the
Union . . . [and] would not retaliate by making unfavorable changes ‘just because the
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[U]nion won.’” S. Bakeries, 364 N.L.R.B. No. 64, at *16 (Member Miscimarra,
dissenting in part). The Board inexplicably discounted these statements solely on the
basis of the general anti-union tenor of the campaigning speeches. This represents
a failure to properly consider adverse evidence.
In sum, I believe the Board’s conclusion that SBC implicitly threatened plant
closure is not supported by substantial evidence because the campaign statements at
issue did not involve predictions of precise effects, because these statements cannot
reasonably be interpreted as threats, and further, because SBC assured employees of
its willingness to continue bargaining with the Union if it were to win retention.
2. Promises of benefits
The Board’s finding that SBC unlawfully promised benefits is likewise
unsupported by substantial evidence. As noted above, SBC has a statutorily protected
right to comment on the potential economic consequences of unionization. See River
Togs, 382 F.2d at 202 (citing 29 U.S.C. § 158(c)). Further, employers “may make
truthful statements to employees concerning benefits available to their represented
and unrepresented employees, may compare wages and benefits at their unionized and
non-unionized facilities, and may offer an opinion, based on such comparisons, that
employees would be better off without a union.” Unifirst Corp., 346 N.L.R.B. 591,
593 (2006). Here, SBC provided employees with wage information for nonrepresented
employees, which showed that these workers received higher pay and
more frequent raises than their unionized colleagues. Also, in one speech, Ledbetter
said, “If you think about the issue logically, you will know the answer to the question
of what will happen to your wage, benefits and working conditions if the . . . [U]nion
is voted out.” Yet, earlier in the same speech, he described SBC’s desire to work with
the Union to find a balance between competitiveness, wages, and job security.
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The Board read these expressions as an implied promise of wage increases in
exchange for decertification. In reality, however, the statements merely explained
that SBC would have more money if not for the expenses associated with
unionization—such as administrative costs and legal fees—and suggested that some
of the added funds could flow to employees. Of course, employees also would enjoy
direct savings by avoiding union dues. In these respects, this case is similar to Deer
Creek Mining Co., 308 N.L.R.B. 743 (1992). There, the Board found no implied
promise in an employer’s verbal acknowledgement that “the costs of existing union
benefits plans were so high that the [employer] could not afford to pay them without
reducing existing wages.” Id. at 743. Similarly, Ledbetter’s statements conveyed
objective economic facts beyond SBC’s control. As such, substantial evidence does
not support the conclusion that SBC made an implied promise of benefits.
3. Harassment-reporting rule
While I accept the Board’s finding that SBC’s application of its
harassment-reporting policy violated section 8(a)(3), I disagree that the promulgation
of this rule was itself an independent violation of section 8(a)(1)—if indeed
Ledbetter’s comment can be interpreted as a rule at all. See S. Bakeries, 364 N.L.R.B.
No. 64, at *17-18 (Member Miscimarra, dissenting in part) (“Ledbetter did not issue
a generally applicable directive or rule, and he did not threaten anyone with discipline
if they neglected to report being harassed or threatened. Rather, Ledbetter indicated
a desire to know if anyone were threatened or harassed.”). It strains credulity to
suggest that encouraging employees to report harassment would “reasonably tend to
chill employees in the exercise of their Section 7 rights,” see Lafayette Park Hotel,
326 N.L.R.B. 824, 825 (1998), enforced, 203 F.3d 52 (D.C. Cir. 1999). The court
cites Bank of St. Louis v. NLRB in support of its position that the promulgation of a
harassment-reporting requirement constitutes a ULP. See ante at 11 (citing 456 F.2d
1234, 1235 (8th Cir. 1972) (per curiam)). However, Bank of St. Louis involved a rule
requiring employees to report only union-solicitation activities. 456 F.2d at 1235.
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Ledbetter’s neutral harassment-reporting policy—which covered all employees,
“whether [they were] for or against the union”—is far different.
Furthermore, employees could not “reasonably construe” the plain wording of
SBC’s purported rule to prohibit protected speech, as it targeted only harassment,
which falls outside the protection of section 7. The Board ignores the fact that
“[h]arassment and intimidation are not protected union activities” and that “offensive,
hostile language and threats are not protected even if under the guise of union
activity.” NLRB v. Arkema, Inc., 710 F.3d 308, 316 (5th Cir. 2013). Although
employees are certainly allowed to engage in union solicitation and employers cannot
treat this protected activity as harassment, SBC has a right and a responsibility to
create a workplace environment free from harassment and threats. See Martin Luther
Mem’l Home, Inc., 343 N.L.R.B. 646, 648-49 (2004) (holding that rules prohibiting
harassment were lawful because “employees have a right to a workplace free of
unlawful harassment, and both employees and employers have a substantial interest
in promoting a workplace that is ‘civil and decent’” (citation omitted)). The timing
of Ledbetter’s statement coincided with the period when harassment was most likely
to occur, the prohibited conduct is clearly distinguishable from legitimate solicitation,
and the context of the alleged rule, taken together, suggest that SBC wanted to protect
against abusive activity in light of an increasingly acrimonious campaign. Moreover,
the policy contained no threat of sanction and applied to both sides of the debate; it
simply was an invitation to employees on all sides to bring incidents of harassment
to the attention of the Company. This neutral wording also belies the argument that
the policy was promulgated in response to protected activity. Unlike the court, I
would not require employers to hesitate before acting to maintain order in the
workplace for fear of being held to task by the Board.
B. Section 8(a)(5) violations
Section 8(a)(5) makes it “an unlawful labor practice for an employer . . . to
refuse to bargain collectively with the representatives of his employees.” 29 U.S.C.
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§ 158(a)(5). An employer violates this section by failing to notify or bargain with a
union before changing the terms and conditions of employment. While I agree with
the court that SBC impermissibly installed two surveillance cameras in the break area
without negotiation, I respectfully dissent from its findings that the Company violated
section 8(a)(5) by restricting Union access to the facility, withdrawing recognition of
the Union in July 2013, and increasing wages shortly thereafter.
1. Union access rights
First, the Board lacked substantial evidence to support its finding that SBC
“prohibit[ed] all access between March and November 2012, and at other times
thereafter.” S. Bakeries, 364 N.L.R.B. No. 64, at *31-32 (emphasis added). At most,
SBC temporarily barred one BCTGM representative (Cesar Calderon) after repeatedly
warning him of numerous violations of the CBA and denied access to a second
representative (David Woods) until he read the terms of the CBA—both while
expressing a willingness to allow visits from other nonemployee union
representatives. As the D.C. Circuit recently explained, “nonemployee union agents
on an employer’s premises for the purpose of communicating with represented
employees are engaged in activities protected by Section 7 of the [NLRA] only to the
extent that they comply with the parties’ contractual access clause.” Fred Meyer
Stores, 865 F.3d at 637. Accordingly, “to establish a NLRA violation, the General
Counsel of the NLRB carries the burden to show the Union representatives were in
compliance with the parties’ Access Agreement.” Id. (citation omitted). Because the
CBA created only a limited visitation right “for the purpose of seeing that the
Agreement is being observed” and because BCTGM violated the terms of the CBA
on numerous occasions, I believe SBC had the right to exclude the two
representatives in question. More importantly, the Board offered no evidence
rebutting SBC’s claim that it would have allowed other Union representatives to visit
during the alleged period of exclusion. Thus, because the Board failed to meet its
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burden and because substantial evidence does not support its factual determinations,
I would conclude that SBC did not violate section 8(a)(5) by restricting union access.
2. Withdraw of recognition
Second, I disagree that SBC unlawfully withdrew recognition from BCTGM
as the unit’s collective-bargaining representative because the Union had lost majority
support, thereby compelling—or, at the very least, permitting—the Company to take
this course of action. See Tenneco Auto., Inc. v. NLRB, 716 F.3d 640, 648 (D.C. Cir.
2013) (“When an employer has objective evidence that a union has lost majority
support, such as ‘a petition signed by a majority of the employees in the bargaining
unit,’ it may unilaterally withdraw recognition.” (citation omitted)); Levitz Furniture
Co., 333 N.L.R.B. 717, 724 (2001) (holding that, “[u]nder Board law, if a union
actually has lost majority support”—as opposed to its status merely being in
doubt—“the employer must cease recognizing it” (emphasis added)). As the court
correctly notes, however, employers are not permitted “to rely on a union’s loss of
majority support caused by the employer’s own unfair labor practices.” See ante at
9 (quoting Radisson Plaza Minneapolis v. NLRB, 987 F.2d 1376, 1383 (8th Cir.
1993)). Thus, the crux of this issue—and the very heart of this appeal—centers on
whether the Company’s ULPs caused employees disaffection with the Union.
Because I believe that the Board lacked substantial evidence to establish a causal link
between any remaining unfair labor practices and the Union’s loss of support, I would
reverse the Board decision as to this finding and vacate its order reinstating BCTGM.
“Gissel bargaining orders,” which compel employers to recognize a union, are
an “extreme remedy” and are “justified only in ‘exceptional circumstances’” because
they deny employees free choice regarding unionization. Skyline Distribs. v. NLRB,
99 F.3d 403, 411 (D.C. Cir. 1996) (citations omitted); see also id. at 410 (“[A]
bargaining order is not a snake-oil cure for whatever ails the workplace.” (citation
omitted)). In fact, “[t]here could be no clearer abridgment of § 7 of the Act . . . [than]
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grant[ing] exclusive bargaining status to an agency selected by a minority of its
employees, thereby impressing that agent upon the nonconsenting majority.” Int’l
Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 737 (1961). For this
reason, “courts have been strict in requiring the Board to justify [such] orders” and
have required an explanation as to why a less intrusive remedy would be inadequate.
Skyline Distribs., 99 F.3d at 410-11. Gissel bargaining orders cannot be enforced
simply because an employer engaged in even “numerous unfair labor practices,” see
Harper & Row Publishers, Inc. v. NLRB, 476 F.2d 430, 435 (8th Cir. 1973), as “not
every unfair labor practice will taint evidence of a union’s subsequent loss of majority
support,” Lexus of Concord, Inc., 343 N.L.R.B. 851, 852 (2004). Instead, “the Board
has the burden of adducing substantial evidence to support its finding that an
employer’s unfair labor practices have ‘significantly contributed’ to the erosion of a
union’s majority support.” Tenneco, 716 F.3d at 648 (citation omitted).
Where, as here, “the unfair labor practices do not involve a general refusal to
recognize and bargain with the union, ‘there must be specific proof of a causal
relationship between the unfair labor practice[s] and the ensuing events indicating a
loss of support.’” Champion Enters., Inc., 350 N.L.R.B. 788, 791 (2007) (citation
omitted). Thus, although I acknowledge 8 that SBC committed a few ULPs, the
8I acknowledge that some of our sister circuits have adopted a presumption that
the commission of any ULP taints subsequent expressions of employee disaffection,
even without proof of causation. See, e.g., Columbia Portland Cement Co. v. NLRB,
979 F.2d 460, 465 (6th Cir. 1992) (citing Fifth and Sixth Circuit cases requiring only
that a ULP “reasonably tended to contribute to employee disaffection” and rejecting
the need for a stricter causal showing). However, I would follow the D.C. Circuit’s
approach, which insists on direct proof of a causal nexus between alleged ULPs and
a union’s loss of majority support. The former approach, adopted by the Board,
would allow any ULP, no matter how trivial, to thwart decertification. The folly of
this approach becomes clear by imagining, for example, that the only unfair labor
practice SBC committed was replacing the break-room window with plywood.
Certainly, no one would find this to be a sufficient basis for concluding that SBC
caused a loss of union support, but the Board’s approach requires precisely that result.
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question is not whether the Company engaged in unfair labor practices; it is whether
there is substantial evidence showing that these labor practices caused or reasonably
could have caused employee disaffection with the Union.
I believe that the Board committed two errors in finding such a causal nexus
here. First, the Board ignored our decision in McKinney, which found that BCTGM
had lost majority support long before the May 2012 decertification petition. See 786
F.3d at 1124. If the Union already had lost majority support, it is unclear to me how
SBC could have caused this disaffection through subsequent acts. Second, although
the ALJ decision correctly identified the correct framework for analyzing causation
based on the oft-cited opinion in Master Slack Corp., 271 N.L.R.B. 78, 84 (1984), its
analysis was conclusory at best, and neither the Board nor the court offer any
additional basis for finding causation.
a. Eighth Circuit precedent confirms pre-ULP loss of majority support
“[E]vidence that employee disaffection arose prior to, and independently of,
the [employer’s] unfair labor practice conduct is relevant [to the inquiry into
causation]” and thus the Board has an obligation to consider it as adverse evidence.
Lexus of Concord, Inc., 343 N.L.R.B. at 852-53. In McKinney, we found that “the
unrefuted evidence . . . indicate[d that] a majority of Southern Bakeries’ employees
ha[d] not supported the Union since at least May 2012 when Hankins circulated his
first petition.” 786 F.3d at 1124. This petition was signed by 59 percent of unit
employees. Additionally, dating back to 2009, SBC workers struggled to oust the
Union with steadily growing momentum. This undisputed history demonstrates the
Union lost majority support prior to May 2012. The Board failed to adequately
address this adverse evidence, thereby calling into question its causal determination.
While McKinney did not find it immediately necessary to “resolve whether the
Company’s allegedly unlawful activities [before the 2012 decertification petition]
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caused the employees’ disaffection,” id., it did note that “the Director has not pointed
to evidence suggesting the 2012 petition is not a genuine reflection of employee
sentiment,” id. at 1124 n.5. I believe this still to be the case. In attempting to
undermine the petition as a valid expression of employee will, the court latches onto
the only ULP alleged to have occurred prior to May 2012—the temporary bar on
BCTGM representative Cesar Calderon’s access to the bakery. See ante at 20-21.
This, the court suggests, was sufficient to cause the employee disaffection that gave
rise to the decertification petition. See ante at 21. As an initial matter, based on my
analysis in the previous section, I do not believe that substantial evidence supports
the Board’s finding that the restriction on Calderon’s access was an unfair labor
practice. However, even if it was a ULP, I do not believe that the Union lost majority
support simply because one of its representatives was absent for a few weeks—if so,
its foothold at SBC was tenuous indeed. Therefore, McKinney demonstrates that
BCTGM lost majority support irrespective of any ULP committed after May 2012,
and the Board failed to adduce substantial evidence undermining that conclusion.
b. Master Slack factors
Separate and apart from McKinney, I disagree with the Board’s finding that
substantial evidence established a causal nexus between unfair labor practices and
employee disaffection. This is especially true given that the ULPs actually supported
by substantial evidence are fewer and much less severe than what the Board originally
found. Based on my analysis, I believe that SBC committed only three ULPs that
could have affected the June 2013 withdraw petition: (1) creating an impression of
surveillance, (2) interrogating several pro-Union employees, and (3) disciplining
those same employees. These three ULPs are simply too isolated and minor to have
caused the Union’s loss of majority support. However, even assuming that the court
is correct in upholding the additional three ULPs of threatening plant closure,
promising benefits, and promulgating an unlawful rule, the Board still failed to meet
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its burden of adducing substantial evidence to show a causal nexus between these
labor practices and employee disaffection.
The Board did not even engage with the issue of causation in its decision,
instead adopting the ALJ’s analysis of the issue in its entirety. The ALJ began by
correctly identifying the Master Slack factors as the governing approach for deciding
whether a causal relationship exists. Under this framework the Board considers: “(1)
the length of time between the unfair labor practices and the withdrawal of
recognition; (2) the nature of the illegal acts, including the possibility of their
detrimental or lasting effect on employees; (3) any possible tendency to cause
employee disaffection from the union; and (4) the effect of the unlawful conduct on
employee morale, organizational activities, and membership in the union.” Master
Slack, 271 N.L.R.B. at 84. However, the ALJ dedicated a mere four sentences to its
causal analysis, which included little more than a conclusory recitation of the alleged
ULPs. Without a deeper examination of how the Company’s actions could have
influenced the employees, I cannot agree with the court’s bald declaration that the
ALJ’s causal-disaffection determination was supported by substantial evidence. See
ante at 20. Indeed, a fuller Master Slack analysis suggests the opposite conclusion.
First, the length of time between the alleged ULPs and the circulation of the
withdrawal petition weighs in favor of the Union. Although there is some uncertainty
as to what constitutes a sufficiently short amount of time, compare Columbia
Portland Cement Co. v. NLRB, 979 F.2d 460, 465 (6th Cir. 1992) (holding violations
within one year had sufficient temporal proximity), with Tenneco, 716 F.3d at 649
(“[A] lapse of months fails to support, and typically weighs against, a finding of close
temporal proximity.”), it is clear that a strong temporal nexus exists where an
employer’s unlawful conduct was ongoing at the time of the petition, see Goya Foods
of Fla., 347 N.L.R.B. 1118, 1121 (2006), enforced, 525 F.3d 1117 (11th Cir. 2008).
I agree with the Board’s finding that SBC violated section 8(a)(3) in March and May
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2013, just before the withdrawal petition was circulated. Thus, temporal proximity
supports the Board’s finding of a causal nexus, at least for some of the ULPs.
The second and third factors—the nature of the violations and their likelihood
to cause employee disaffection—cut against finding a causal nexus. The ULPs here
are so innocuous that they could not have had a lasting impact on employees or
caused widespread loss of Union support. Moreover, neither the ALJ nor the court
point to evidence that employees were even aware of the offending labor practices.
Instead, the ALJ relied on sheer speculation to bridge the gap between the charged
ULPs and employee’s choice by simply pronouncing that SBC’s unfair labor practices
were “so voluminous and egregious that they naturally spawned significant
disaffection.” This approach plainly fails to establish “specific proof of a causal
relationship.” See Champion Enters., 350 N.L.R.B. at 791. Even assuming that SBC
committed all of the ULPs that the court upholds, the Board failed to produce
substantial evidence suggesting that these practices had an effect sufficient “to cause
a large majority of the employees to sign a decertification petition.”9 Tenneco, 716
F.3d at 650-51. Compared with instances where employers terminated employees,
refused to bargain with a union, or unilaterally granted benefits to employees, the
9Although there is precedent indicating the coercive nature of several of these
ULPs, I do not believe such violations can serve as per se proof of causation. This
is especially true where, as here, there is evidence that most employees were not even
aware of the practices or at least of their alleged anti-union impetus. For example,
SBC did not make a public example in disciplining the pro-Union employees, and
Hankins testified that their names never came up during the withdrawal-petition
process. Similarly, although there was an ongoing dispute about the Union’s access
rights, there is nothing in the record showing that BCTGM was ever denied access
for legitimate purposes or that the alleged limitations “actually prevented
communications between the employees and the Union.” See Tenneco, 716 F.3d at
650-51. The Union was even provided with a list of the employees eligible to vote
in the election and thus had the means of contacting them directly, unlike Tenneco.
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Board’s attempt at bundling a group of fairly minor ULPs to create the illusion of a
coercive atmosphere holds little water.
The fourth factor—the effect of unlawful conduct on union membership—also
cuts in favor of SBC because the Board again failed to identify evidence linking the
impression of surveillance or disciplining of three employees to the Union’s loss of
majority support. The Board’s reliance on the fact that Union support declined after
a few alleged ULPs confuses temporal correlation with causation, “rest[ing] more on
suspicion than on reasonable inference and upon resort to that shopworn logical
fallacy, post hoc ergo propter hoc.” See Riveredge Hosp., 205 N.L.R.B. 931, 935
(1973). Once again, even accepting the additional ULPs the court upholds, there is
no evidence of causation beyond mere temporal correlation. Indeed, in light of the
years-long trend of diminishing support for BCTGM, it is difficult to find that the
ULPs had any effect on employee sentiment. Thus, nothing more than pure inference
justifies the conclusion that the ULPs caused employee disaffection with the Union.
Despite the lip service paid to the Master Slack factors, the ALJ seemingly
rested its causality determination on the same paternalistic assumption that undergirds
many NLRB decisions in this context—that employees are incapable of navigating
the election process and making a reasonable, independent decision that advances
their own best interest. Admittedly, there can be a fine line between coercion and
persuasion in the context of an employer-employee relationship, and employers
certainly are capable of unfairly influencing employee sentiment through ULPs. See,
e.g., UARCO, 286 N.L.R.B. at 79 (“[T]he Board has often found that employees, who
are particularly sensitive to rumors of plant closings . . . take such hints as coercive
threats rather than honest forecasts.”). Nevertheless, “[i]t is the very essence of
election campaigning . . . to convince the voter not to support the other party,”
Mediplex of Conn., Inc., 319 N.L.R.B. 281, 289 (1995), and an employer’s ULPs
should not be assumed to have caused employee disaffection unless there is evidence
that the specific labor practices influenced, or reasonably could have influenced,
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employees’ choice. Attempts to persuade frequently involve disparaging the other
side’s position, and we must give unions and employers latitude to engage in a
spirited debate given the importance of the issues at stake. See, e.g., MikLin
Enterprises, Inc. v. NLRB, 861 F.3d 812, 837 (8th Cir. 2017) (en banc) (Kelly, J.,
dissenting) (“By limiting the content of employees’ communications to attacks on the
employer’s labor practices . . . the court deprive[s] employees of . . . their most cogent
argument . . .[,] dampen[s] the ardor of labor debate[,] and truncate[s] the free
discussion envisioned by the Act.” (quotations omitted)).
When coupled with the findings from McKinney showing that a majority of
employees stopped supporting the Union well before most of the alleged ULPs, the
Board utterly disregarded “material evidence that belie[d] any causal relationship
between the Company’s unfair labor practices and the employees’ petition for
decertification” and failed to satisfy the Master Slack factors. See Tenneco, 716 F.3d
at 649. Based on this record, I do not believe that there is substantial evidence of a
causal relationship between SBC’s unfair labor practices and the Union’s loss of
majority support. Therefore, I would not enforce this portion of the Board’s order.10
III.
The Board’s decision suggests that SBC can neither reference the potential
negative economic impacts of retaining the Union “regardless of the truth of those
claims because it will upset the tranquility of the voter,” Mediplex, 319 N.L.R.B. at
289, nor commit even a single ULP without automatically trammeling the right of
employees to rid themselves of an unwanted Union. Unfortunately, what often gets
lost in disputes like this are the unique interests of employees, as distinct from either
Based on the foregoing analysis, 10 I reject the Board’s determination that the
wage increases violated section (8)(a)(5), as SBC was no longer obligated to bargain
with the Union when it granted the raises. See ante at 17 n.4. Accordingly, I also
would not enforce this portion of the Board’s order.
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those of the companies or unions themselves, despite the NLRA’s clear mandate “to
protect the rights of individual employees.” 29 U.S.C. § 141(b). And because either
the Union or SBC may be more closely aligned with those interests depending on the
circumstances, we should be more concerned with enabling employees to
“recogniz[e] campaign propaganda for what it is” rather than protecting them from
the exchange of ideas. See U-Haul Co. of Nevada, Inc., 341 N.L.R.B. 195, 195
(2004). In fact, in the present case, there is good reason to believe that the employees
were more sophisticated than most regarding the decision of whether to retain union
representation, as they had been through a previous decertification election in 2009
and witnessed firsthand that SBC did not close its doors or otherwise retaliate after
BCTGM prevailed.
This case “demonstrates the lengths to which the Board will go to contort an
evenhanded Act into an anti-employer manifesto,” DirecTV, Inc. v. NLRB, 837 F.3d
25, 47 (D.C. Cir. 2016) (Brown, J., dissenting). Rather than checking this agency
overreach, the court’s decision today rubber-stamps a bargaining order that sacrifices
the will of employees for the sake of union incumbency.

Outcome: Petition denied in part and granted in part.

Plaintiff's Experts:

Defendant's Experts:

Comments: