Southern Bakeries, LLC v. National Labor Relations Board

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.

Petition denied in part and granted in part.