NLRB v. Dorsey Trailers Inc ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DORSEY TRAILERS, INCORPORATED, 
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
 No. 99-1390
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA; LOCAL 1868,
UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA,
Intervenors.

NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
v.
DORSEY TRAILERS, INCORPORATED,
Respondent,
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
 No. 99-1561
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA; LOCAL 1868,
UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA,
Intervenors.

2 DORSEY TRAILERS, INC. v. NLRB
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board.
(4-CA-23996, 4-CA-24049, 4-CA-24356, 4-CA-24423)
Argued: September 27, 2000
Decided: December 1, 2000
Before WILKINSON, Chief Judge, and NIEMEYER and
LUTTIG, Circuit Judges.
Enforcement granted in part, denied in part, and remanded by pub-
lished opinion. Chief Judge Wilkinson wrote the opinion, in which
Judge Niemeyer and Judge Luttig joined.
COUNSEL
ARGUED: Michael S. Mitchell, FISHER & PHILLIPS, L.L.P., New
Orleans, Louisiana, for Dorsey Trailers. David Arthur Fleischer,
Senior Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Board. Stephen Anthony Yokich, CORN-
FIELD & FELDMAN, Chicago, Illinois, for Intervenors. ON
BRIEFS: Scott D. Schneider, FISHER & PHILLIPS, L.L.P., New
Orleans, Louisiana; James M. Walters, FISHER & PHILLIPS, L.L.P.,
Atlanta, Georgia, for Dorsey Trailers. Linda Sher, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board.
OPINION
WILKINSON, Chief Judge:
Dorsey Trailers, Inc. appeals a National Labor Relations Board
decision finding that the company committed various labor violations
DORSEY TRAILERS, INC. v. NLRB 3
at its plant in Northumberland, Pennsylvania. The Board ordered the
company to, among other things, cease and desist from the ongoing
labor violations and reopen its Northumberland plant. We find that
substantial evidence supports the NLRB’s conclusions regarding
some of the company’s violations of Sections 8(a)(1), 8(a)(3), and
8(a)(5) of the National Labor Relations Act. We hold, however, that
Dorsey Trailers did not violate Section 8(a)(3) by closing the plant,
and it did not violate Section 8(a)(5) by failing to bargain to impasse
with the union on the plant’s relocation. Furthermore, we find the
NLRB’s restoration order beyond the Board’s remedial power given
the remaining violations. Because the decision of where to locate a
business lies at the core of entrepreneurial discretion, enforcement of
the NLRB’s order shall be granted in part and denied in part. On
remand, the order shall be modified in conformity with this decision.
I.
Dorsey Trailers manufactured flatbed and dump trailers at its
Northumberland, Pennsylvania plant until late 1995. The plant had
been unionized since 1967. The previous contract between the union
and the company ran from March 4, 1992 until March 1, 1995. In that
contract, the union made concessions because the plant had not been
profitable. By early 1995, the plant had regained profitability. Indeed,
the operating profit for the first six months of 1995 was $1,500,000.
All was not well at the Northumberland plant, however. In Febru-
ary of 1995, the union and the company started to negotiate a new
collective bargaining agreement. The company wanted the ability to
subcontract work and to mandate overtime. The company asserted
that these provisions would allow Dorsey to meet the increasing
demand for its trailers. The union wanted to regain some of the bene-
fits it had conceded in the last contract. Consequently, it asked for
wage increases while opposing the subcontracting and mandatory
overtime provisions. Tensions also rose because the company insti-
tuted a new attendance policy which permitted the company to fire
workers for fewer unexcused absences. The company refused the
union’s demand to bargain about the new policy.
Negotiations on the new contract became more heated as the March
1 expiration date approached. On February 23, the company reiterated
4 DORSEY TRAILERS, INC. v. NLRB
its demand for a mandatory overtime provision, and said that the com-
pany was prepared to endure a strike to achieve this goal. The com-
pany president, Marilyn Marks, said that she would shut down the
plant if the parties could not reach an agreement on subcontracting
and mandatory overtime. The company’s lead negotiator told the
union that the company had to decide whether to keep the plant in
Northumberland or move it to another state. If subcontracting and
mandatory overtime were not allowed, he said, the company would
probably shut down the plant and move its operations to another facil-
ity. The plant manager told supervisors to tell employees that if
employees went on strike, the plant would close. One supervisor told
a union member that the president of the company had "no time to
waste" on contract negotiation. The supervisor also stated that if the
employees voted to strike, the president would close the plant. He
later emphasized to a group of workers that closing the plant was "not
a threat, it’s a promise, but you didn’t hear it from me."
On June 26, 1995, the strike began. In response, the company
began to look at other options to fill the work orders that were back-
logged due to the strike. On September 25, the company investigated
purchasing a new facility in Cartersville, Georgia. The company
found that the economics of the Cartersville plant surpassed the
Northumberland plant in nearly all respects.
Specifically, the company found that the Cartersville plant layout
allowed workers to build trailers along a 500-foot long assembly line.
By contrast, the assembly line at the Northumberland plant was 250
feet long and had to make four sharp turns. This change in assembly
line structure would allow the company to increase the number of
trailers it could build. It would also provide more flexibility in deter-
mining the type of trailer to be built. Moreover, Cartersville’s geo-
graphic location would substantially reduce shipping and freight costs
since a large percentage of the company’s customers were located in
the Southeast. The State of Georgia also provided a free training pro-
gram for employees, a tax credit of one thousand dollars per
employee, and a twenty percent reduction in utility costs. Pennsylva-
nia, by contrast, did little to entice the company to remain in North-
umberland. The Cartersville plant also had an asphalt parking lot
around the entire building, thereby reducing wear and tear on equip-
ment by decreasing the amount of dust and dirt in the building. In
DORSEY TRAILERS, INC. v. NLRB 5
short, the company found that although the Northumberland plant was
adequate, the Cartersville location would be much better for the com-
pany. By October 5, the company agreed to buy the Cartersville plant.
On October 9, the company informed the union of the impending
purchase of the Cartersville plant, and of the possibility of closing the
Northumberland facility and relocating the work to Cartersville. The
company made clear that the continued operation of the Northumber-
land facility was open to bargaining. On October 16, the union made
an unconditional offer to return to work. The company did not rein-
state all of the strikers immediately.
The company told the union that thirty-one concessions were nec-
essary to keep the plant in Northumberland. These included a five-
year contract with an immediate twenty percent wage cut followed by
a wage freeze for the duration of the contract. The parties met for the
last time on November 6. The union made an extensive counter-
proposal. On November 9, the company notified the union that it was
closing the plant. By the end of the year, the company shut down the
Northumberland facility. All employees were terminated. The
Cartersville plant had a total net loss of $1,500,000 in 1996.
The NLRB General Counsel issued a complaint against Dorsey
Trailers alleging that the company: 1) threatened union members with
plant closure and job loss if they went on strike; 2) failed to immedi-
ately reinstate union workers after an unconditional offer to return to
work; 3) encouraged union members to resolve disputes directly with
supervisors; 4) refused to comply with the union’s request for relevant
information; 5) closed the Northumberland plant due to anti-union
animus; 6) relocated work without bargaining to impasse; 7) created
the impression of surveillance and threatened an employee with
unspecified reprisals; and 8) unilaterally instituted a new attendance
policy in violation of the collective bargaining agreement.
On December 1, 1997, the Administrative Law Judge (ALJ) ruled
against the company on almost all counts, finding numerous viola-
tions of Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the NLRA. The ALJ
found that the strike was motivated at least in part by the company’s
unfair labor practices, and that therefore the strike was an unfair labor
practice strike. Consequently, he held that the company violated the
6 DORSEY TRAILERS, INC. v. NLRB
Act by failing to promptly reinstate the strikers after their uncondi-
tional offer to return to work. He also found that the decision to relo-
cate the plant from Northumberland to Cartersville was a mandatory
subject of bargaining. He found that the company had not bargained
in good faith concerning the relocation decision and that no impasse
existed when the company decided to close the plant, thus violating
the Act. The ALJ further found that the relocation decision violated
the Act because it was motivated by a desire to retaliate against the
union for going on strike. He also held that the company committed
various other violations of the Act.
The ALJ ordered the company to cease and desist from its unlawful
conduct. He also ordered the company to, among other things, reopen
the Northumberland plant, reinstate the workers who were terminated
due to the closure of the plant, and repay workers for lost earnings.
On March 12, 1999, the NLRB affirmed the ALJ’s findings and
adopted his order. Dorsey Trailers now appeals the Board’s order.
The NLRB General Counsel cross-appeals for its enforcement.
II.
The National Labor Relations Act is designed to encourage indi-
vidual employees to join labor unions and bargain collectively, while
at the same time ensuring that a company can control the functioning
of its business. See 29 U.S.C. §§ 141, 151 (1994); Fibreboard Paper
Products Corp. v. NLRB, 379 U.S. 203, 211 (1964). One of the funda-
mental purposes of the Act is to promote the peaceful settlement of
industrial disputes by prohibiting employers from engaging in unfair
labor practices and by promoting the collective bargaining process.
See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 674
(1981).
This case revolves around three provisions of the Act, Sections
8(a)(1), 8(a)(3), and 8(a)(5), under which the NLRB General Counsel
accused Dorsey Trailers of committing numerous unfair labor prac-
tices. See 29 U.S.C. §§ 158(a)(1), 158(a)(3) & 158(a)(5). Section
8(a)(1) makes it an unfair labor practice for an employer "to interfere
with, restrain, or coerce employees in the exercise" of their rights to
form and join a union, to bargain collectively, and to "engage in other
concerted activities for the purpose of collective bargaining or other
DORSEY TRAILERS, INC. v. NLRB 7
mutual aid or protection." 29 U.S.C. § 158(a)(1); see also 29 U.S.C.
§ 157. Section 8(a)(3) in relevant part makes it an unfair labor prac-
tice to "discriminat[e] in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization." 29 U.S.C. § 158(a)(3).
Section 8(a)(5) makes it an unfair labor practice for an employer
"to refuse to bargain collectively with the representatives of his
employees. . . ." 29 U.S.C. § 158(a)(5). The obligation to bargain col-
lectively is further defined in Section 8(d) of the Act, which directs
the union and the employer to "confer in good faith with respect to
wages, hours, and other terms and conditions of employment . . . ."
29 U.S.C. § 158(d). Matters falling within the category of wages,
hours, and other terms or conditions of employment are mandatory
subjects of bargaining. An employer commits an unfair labor practice
under Section 8(a)(5) when it makes a unilateral change or otherwise
fails to bargain in good faith on any mandatory subject. See 29 U.S.C.
§ 158(a)(5); First National Maintenance, 452 U.S. at 675.
III.
A.
This court will uphold the NLRB’s findings of facts if they are sup-
ported by substantial evidence. See Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951); NLRB v. CWI of Maryland, Inc., 127 F.3d
319, 326 (4th Cir. 1997). The record supports the Board’s holding that
the company committed certain violations of Sections 8(a)(1), 8(a)(3),
and 8(a)(5) of the Act.
Under Section 8(a)(1), the NLRB General Counsel presented a
strong case that the company: 1) threatened the workers with plant
closure and job loss if the union went on strike; 2) told workers that
it would close the facility because it had no time to waste on negotia-
tions; 3) directed employees to bring grievances to supervisors before
going to the union; and 4) told workers not to talk to the union during
working hours without a supervisor’s approval. Accordingly, substan-
tial evidence exists that the company violated Section 8(a)(1) in these
four respects. See CWI of Maryland, 127 F.3d at 325-26. The record
also indicates that the company unilaterally changed its attendance
8 DORSEY TRAILERS, INC. v. NLRB
policy and refused to furnish the union with information relating to
employee attendance. Substantial evidence thus supports the Board’s
finding that the company violated Sections 8(a)(5) and (1) in these
two respects. See First National Maintenance, 452 U.S. at 677; Arrow
Automotive Indus. v. NLRB, 853 F.2d 223, 226 (4th Cir. 1988).
Indeed, the company no longer contests the above violations.
The company does contend that it did not violate Section 8(a)(3)
and (1) of the Act by failing to reinstate the strikers after their uncon-
ditional offer to return to work. We disagree. Although the company
maintains that the strike was motivated solely for economic reasons,
substantial evidence supports the Board’s determination that the strike
was an unfair labor practice strike. A strike that is caused in whole
or in part by an employer’s unfair labor practices is an unfair labor
practice strike. See Pirelli Cable Corp. v. NLRB, 141 F.3d 503, 515
(4th Cir. 1998); NLRB v. Stilley Plywood Co., 199 F.2d 319, 320-21
(4th Cir. 1952); Northern Wire Corp. v. NLRB, 887 F.2d 1313, 1319
(7th Cir. 1989); General Drivers and Helpers Union, Local 662 v.
NLRB, 302 F.2d 908 (D.C. Cir. 1962).
The union voted to strike in part because of the unilateral change
in attendance policy, the threats to close the plant down, and the
supervisors’ instructions to bring grievances to the company before
going to the union. The company is correct that the union also went
on strike for economic reasons — namely the mandatory overtime
provisions and the right to subcontract. These reasons, however, do
not eclipse the unfair labor practices that also precipitated the strike.
The company admits that it did not promptly reinstate the strikers
after their unconditional offer to return to work. This failure to rein-
state the workers violated Section 8(a)(3) and (1) because the strike
was an unfair labor practice strike. See NLRB v. Fleetwood Trailer
Co., 389 U.S. 375, 378 (1967); Newport News Shipbuilding and Dry
Dock Co. v. NLRB, 738 F.2d 1404, 1408 (4th Cir. 1984).
B.
The company further argues that it did not violate Section 8(a)(3)
of the Act by transferring work from Northumberland. On this point,
we find the company’s argument persuasive.
DORSEY TRAILERS, INC. v. NLRB 9
Section 8(a)(3) protects against work transfers or firings due to
anti-union animus. See Textile Workers Union of America v. Darling-
ton Manufacturing Co., 380 U.S. 263, 268-69 (1965); Alpo Petfoods,
Inc. v. NLRB, 126 F.3d 246, 250 (4th Cir. 1997). Wright Line, 251
N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), requires
a two step analysis in order to find a discriminatory transfer or dis-
charge. See also CWI of Maryland, 127 F.3d at 330-32 (applying
Wright Line). First, the NLRB General Counsel must prove by a pre-
ponderance of the evidence that anti-union animus was a substantial
or motivating factor in the discharge. See NLRB v. Transp. Mgmt.
Corp., 462 U.S. 393, 400-02 (1983); CWI of Maryland, 127 F.3d at
330-31. Substantial evidence supports the Board finding that the com-
pany’s anti-union animus played a motivating role in the move to the
Cartersville facility. The company knew about the strike, repeatedly
threatened to move the plant because of the strike, told workers to
bypass the union in dealing with grievances, and unilaterally changed
its attendance policies.
The analysis under Wright Line does not stop with the prima facie
showing of anti-union animus, however. The second step of Wright
Line shifts the burden to Dorsey Trailers to prove that it would have
relocated its Northumberland operations even in the absence of anti-
union animus. See CWI of Maryland, 127 F.3d at 330 (citing FPC
Holdings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995)). If the
employer can satisfy this burden, it has not violated Section 8(a)(3).
In assessing the company’s affirmative defense, the Board basically
ignored the economic reasons why the company decided to move.
It is not, of course, our job to review de novo the factual determina-
tions of the Board. See Sam’s Club v. NLRB, 173 F.3d 233, 239-40
(4th Cir. 1999). Still, substantial evidence review is an objective
assessment of the sufficiency of the evidence. See Pirelli Cable
Corp., 141 F.3d at 514. Substantial evidence is "such relevant evi-
dence as a reasonable mind might accept as adequate to support a
conclusion." Id. (internal quotations omitted). Indeed, a substantial
evidence review requires a court to weigh "whatever in the record
fairly detracts from the Board’s fact finding as well as evidence that
supports it." Id. (internal quotations omitted).
The record indicates that economic reasons drove the company’s
decision to move the plant from Northumberland to Cartersville. The
10 DORSEY TRAILERS, INC. v. NLRB
Board found that the company had not proven that it would have
moved the plant despite the anti-union animus. In support of this
point, the Board cited the fact that the Northumberland facility was
the company’s most profitable plant. The Board dismissed off-
handedly the "alleged advantages offered by the Cartersville facility."
A fair glimpse at the record, however, would have demonstrated the
error of ignoring the company’s economic arguments. See Sam’s
Club, 173 F.3d at 240 (inadequate reason by Board enough to over-
turn its finding); CWI of Maryland, 127 F.3d at 326 (explaining that
substantial evidence does not exist where the Board provides inade-
quate reason for its finding).
The company searched for a facility after the strike began because
it needed to fill backlogged orders, not because of anti-union animus.
Indeed, Dorsey Trailers had to fill the two biggest orders in its his-
tory. Builders Transport, Inc. had just given the company an order of
five hundred trailers. Michael Gordy, the plant manager, testified that
he was concerned the strike would jeopardize the order. The company
risked losing a large amount of business if it was unable to fulfill its
obligations to customers like Builders Transport. The need to resume
production led Dorsey Trailers to investigate the advantages of the
Cartersville plant. Before deciding to relocate to Cartersville, the
company tried to find other ways to fill its orders. It tried to use sala-
ried workers and it investigated hiring temporary help. Gordy even
visited the plants of two competitors, Oshkosh Trailers in Florida and
Pines Trailers in Illinois, to inquire about their availability. Finally,
the company turned to the Cartersville facility in order to restart pro-
duction and to build the trailers that the Northumberland plant was
not producing.
When the company learned that a plant in Cartersville was for sale,
it sent three top managers to investigate the facility. The company
found that the Cartersville location was "tremendous," and better
suited its needs in every regard. The Cartersville plant would allow
the production of more trailers because it was over seventy-five per-
cent larger than the Northumberland facility. The size of the Carters-
ville plant meant that the company could manufacture trailers on a
500-foot long assembly line. By contrast, the Northumberland plant
had an assembly line only 250 feet long that had to turn four different
times. Each turn slowed down production. In sum, the long assembly
DORSEY TRAILERS, INC. v. NLRB 11
line and the vast increase in the amount of space at Cartersville
offered substantial efficiency gains over the Northumberland plant.
The company also contended that the Georgia location would
reduce shipping costs by at least $100,000 per year because most of
the flatbed trailers were sold to customers in the Southeast. Although
the NLRB General Counsel currently disputes the amount of money
saved by the difference in shipping costs, three of the company’s
major competitors — Great Dane Trailers, Fontaine Trailers, and
Utility Trailers — were located in the same region of the country. The
State of Georgia also provided a training program for new workers as
well as a one thousand dollar tax credit per employee. In addition, the
State promised to reduce Dorsey Trailer’s utility costs by twenty per-
cent. The Cartersville plant also offered an asphalt parking lot around
the entire building, which would prolong the life of the company’s
equipment by substantially reducing dust.
The Board considered none of this evidence in the record, except
to casually dismiss the shipping costs argument and to concede that
the State of Georgia offered the company incentives to move to the
state. The Board made no genuine effort to address the company’s
economic reasons for moving the plant. The Board simply stated that
because the Northumberland plant was the company’s most profitable
operation, its asserted economic justification was a "pretext." This
argument completely overlooks the fact that Dorsey Trailers made a
reasoned business decision that for the long term, the Cartersville
plant was a superior facility to the Northumberland plant. Although
the strike might have precipitated the search for a new plant, eco-
nomic reasons drove the company to purchase and retain the Carters-
ville facility. Therefore, substantial evidence does not support the
Board’s holding that the company would have remained in Northum-
berland absent the protected union activity.
An employer does not violate Section 8(a)(3) when it would have
taken the same action for legitimate business reasons. See
Ultrasystems Western Constructors, Inc. v. NLRB, 18 F.3d 251, 257
(4th Cir. 1994). Because the company met its burden under the sec-
ond part of Wright Line by proving that legitimate business reasons
drove the decision to relocate, the company did not violate Section
8(a)(3) when it transferred work from Northumberland to Cartersville.
12 DORSEY TRAILERS, INC. v. NLRB
C.
The company argues that it did not violate Section 8(a)(5) when it
failed to bargain to impasse with the union on the plant relocation.
Dorsey Trailers now concedes that it did not bargain to impasse on
this point. The question, therefore, turns on whether the plant reloca-
tion was a "term or condition of employment," and thus a mandatory
subject of bargaining. See 29 U.S.C. § 158(d). For the reasons that
follow, we hold that it was not.
The Supreme Court’s decision in First National Maintenance v.
NLRB provides our starting point. See 452 U.S. at 666. First National
Maintenance concerned a company that closed one of its facilities and
terminated all of its workers there three weeks after the union
attempted to bargain with the company. See 452 U.S. at 669-70. In
First National Maintenance, the Supreme Court held that a compa-
ny’s decision to eliminate part of its business is not a term or condi-
tion of employment, and therefore not a mandatory subject of
bargaining. See First National Maintenance, 452 U.S. at 686 (adopt-
ing Justice Stewart’s concurrence from Fibreboard Corp. v. NLRB,
379 U.S. 203, 217 (1964) (Stewart, J., concurring)); see also 29
U.S.C. §§ 158(a)(5), 158(d). The Court held that bargaining over the
decision to partially close a business does not "advance the neutral
purposes of the Act." First National Maintenance, 452 U.S. at 681.
Because "Congress had no expectation that the elected union repre-
sentative would become an equal partner in the running of the busi-
ness enterprise in which the union’s members are employed," partial
closings are not mandatory subjects of bargaining. Id. at 676. Indeed,
the Court stated that a business needs "some degree of certainty
beforehand as to when it may proceed to reach decisions without fear
of later evaluations labeling its conduct an unfair labor practice." Id.
at 679.
Although the Court in First National Maintenance did not have to
reach the question of whether a plant relocation is a term or condition
of employment, this court made clear in Arrow Automotive Indus. v.
NLRB that the reasoning of First National Maintenance encompassed
plant relocations. See Arrow, 853 F.2d at 229-30. Arrow involved a
company that remanufactured automobile and truck parts. It operated
four plants: one each in Massachusetts, South Carolina, Arkansas, and
DORSEY TRAILERS, INC. v. NLRB 13
California. Each plant made identical products. See Arrow, 853 F.2d
at 224. After the Massachusetts plant went on strike, the company
relocated the Massachusetts operations to the pre-existing facility in
South Carolina. See id. The company found that the South Carolina
plant could "more efficiently" perform the work previously done at
the Massachusetts facility. Id.
This circuit held that the move to South Carolina was not a term
or condition of employment, and therefore not a mandatory subject of
bargaining. See Arrow, 853 F.2d at 225. Arrow noted that First
National Maintenance "established a per se rule that an employer has
no duty to bargain over a decision to close part of its business." 853
F.2d at 227. Arrow emphasized, however, that the reasoning of First
National Maintenance was not limited to partial closings. See Arrow,
853 F.2d at 228-30. Rather, the Arrow court’s "conclusion that [the
company’s] closing decision was not a mandatory subject of bargain-
ing is not dependent on the ‘partial closing’ label." Id. at 230. In
Arrow, the company’s actions, "however they might be labeled, were
not a subject of mandatory bargaining when examined in light of the
analysis set forth by the Supreme Court." Id. at 230. We emphasized,
in fact, that cases were not "to be resolved by placing decisions within
rigid categories such as ‘partial closing,’ ‘relocation,’ or ‘consolida-
tion.’" Id. at 229.
The reasoning behind such conclusions is straightforward. The
ability to decide where to commit "investment capital" is so "funda-
mental to the basic direction of a corporate enterprise" that a plant
relocation is not a term or condition of employment, and thus not a
Section 8(a)(5) obligation. Fibreboard, 379 U.S. at 223 (Stewart, J.,
concurring). If the decision of where to locate a plant is, as the
Supreme Court says, a core entrepreneurial decision, then the "benefit
for labor-management relations and the collective bargaining process"
cannot be deemed to outweigh "the burden placed on the conduct of
the business." First National Maintenance, 452 U.S. at 679; see also
Arrow, 853 F.2d at 230-32. The benefit to the collective bargaining
process is limited because just like partial closings, the plant reloca-
tion decision is not "amenable to resolution through the bargaining
process." First National Maintenance, 452 U.S. at 678. On the other
side of the ledger, the burden to the company remains high. A com-
pany would lose the freedom to decide where to locate its business
14 DORSEY TRAILERS, INC. v. NLRB
and where to invest finite capital resources. See id. at 678-79; Arrow,
853 F.2d at 231-32 (stressing the "magnitude of the decision . . . to
reallocate large amounts of capital"). In this case, Dorsey Trailers had
to spend a significant amount of capital to buy its new Cartersville
plant and to move its equipment there.
The Act itself provides support for the conclusion that a plant relo-
cation is not a mandatory subject of bargaining. Certainly, there is no
support in the statute for fitting plant relocations within the terms of
Section 8(d). A plant relocation that results in termination may affect
the "tenure" of employment, but tenure is not the same thing as a
"term or condition of employment." 29 U.S.C. §§ 158(a)(3), 158(d).
In the Act, the word "tenure" includes length of employment. See 29
U.S.C. § 153(a) (making clear that tenure includes length of employ-
ment by defining "tenure" to mean the length of employment at the
NLRB); 29 U.S.C. § 153(d) (the "tenure" of the General Counsel of
the NLRB is a four-year term). Tenure, or length, of employment is
pointedly not one of the elements included in the mandatory bargain-
ing obligation, which is triggered by Section 8(d) of the Act. See 29
U.S.C. § 158(d) (requiring employers to "confer in good faith with
respect to wages, hours, and other terms and conditions of employ-
ment").
This distinction between the concept of "tenure" and that of "terms
and conditions of employment" is borne out by other sections of the
statute. Section 8(a)(3), for instance, makes it an unfair labor practice
to discriminate "in regard to hire or tenure of employment or any term
or condition of employment . . . ." 29 U.S.C. § 158(a)(3) (emphasis
added). Section 8(a)(3) thus distinguishes "tenure" from a "term or
condition of employment." Indeed, the Supreme Court itself has rec-
ognized this distinction. See NLRB v. Waterman Steamship Corp.,
309 U.S. 206, 218-19 (1940). This statutory separation of "tenure"
from "term or condition of employment" suggests tenure is not synon-
ymous with terms and conditions of employment under Section
8(a)(3). See, e.g., Kungys v. United States, 485 U.S. 759, 778 (1988)
(plurality opinion) (it is a "cardinal rule of statutory interpretation that
no provision should be construed to be entirely redundant"); Colautti
v. Franklin, 439 U.S. 379, 392 (1979) (it is an "elementary canon of
construction that a statute should be interpreted so as not to render
one part inoperative").
DORSEY TRAILERS, INC. v. NLRB 15
To hold, therefore, that a plant closure or relocation or like decision
that affects the tenure of employees is a term or condition of employ-
ment under Section 8(d) would do violence both to the Supreme
Court’s decision in First National Maintenance and to the language
of the Act. See, e.g., Estate of Cowart v. Nicklos Drilling Co., 505
U.S. 469, 479 (1992) (it is a "basic canon of statutory construction
that identical terms within an Act bear the same meaning"); United
Savings Ass’n of Texas v. Timbers of Inwood Forest Assocs., 484 U.S.
365, 371 (1988) ("A provision that may seem ambiguous in isolation
is often clarified by the remainder of the statutory scheme — because
the same terminology is used elsewhere in a context that makes its
meaning clear."). Bargaining over the effects of a decision to close or
relocate the plant, by contrast, is a mandatory subject of bargaining
precisely because the effects of the decision concern matters such as
severance pay and retirement benefits. Section 8(d) specifically
includes these matters and others like them because they are "wages,
hours, and other terms and conditions of employment." 29 U.S.C.
§ 158(d). On the other hand, the language of the statute suggests that
"terms and conditions of employment" need not include entrepreneur-
ial decisions that have the effect of necessarily terminating employ-
ment. See Fibreboard, 379 U.S. at 223 (Stewart, J., concurring).
Of course, to recognize the statutory distinction is not to ride it for
all it is worth. See Fibreboard, 379 U.S. at 221-22 (Stewart, J., con-
curring) (recognizing limitations of phrase "conditions of employ-
ment" but listing some subjects touching length and conditions of
employment that could trigger a mandatory bargaining obligation). If,
however, Congress meant to include such traditional management
decisions as plant closures and relocations within the set of bargain-
able obligations, it stopped far short of saying so in Section 8(d). To
rest such a far-reaching bargaining obligation on such a thin statutory
reed would have judges expand the contours of the NLRA beyond all
proper bounds. See, e.g., First National Maintenance, 452 U.S. at 676
("Despite the deliberate open-endedness of the statutory language,
there is an undeniable limit to the subjects about which bargaining
must take place."); Fibreboard, 379 U.S. at 221 (Stewart, J., concur-
ring) ("Only a narrower concept of ‘conditions of employment’ will
serve the statutory purpose of delineating a limited category of issues
which are subject to the duty to bargain collectively."). "Terms and
conditions of employment" is simply not an all-inclusive phrase.
16 DORSEY TRAILERS, INC. v. NLRB
Indeed, another circuit has already held that Dorsey Trailers’ decision
to subcontract part of its work to the company that previously oper-
ated the Cartersville facility was not a mandatory subject of bargain-
ing. See Dorsey Trailers, Inc. v. NLRB, 134 F.3d 125, 131 33 (3d Cir.
1998).
The NLRB General Counsel argues, however, that Dubuque Pack-
ing Co., 303 N.L.R.B. 386 (1991), enforced sub nom. United Food &
Commercial Workers Int’l Union Local 150-A v. NLRB, 1 F.3d 24(D.C. Cir. 1993), compels the result that the plant relocation is a man-
datory subject of bargaining. We disagree. Dubuque Packing is sim-
ply incompatible with our decision in Arrow. Indeed, in Arrow we
specifically disapproved of Otis Elevator Company, 269 N.L.R.B. 891(1984) (Otis II), which was the predecessor of Dubuque Packing.
Dubuque Packing, just like Otis II, is "flatly inconsistent with First
National Maintenance. Where an employer closes down part of its
operation . . . the Court has made clear that bargaining over the deci-
sion is not required." Arrow, 853 F.2d at 228. Moreover, Dubuque
Packing posits a false dichotomy between economic and labor costs.
Under Arrow, however, economic reasons for moving "are not rea-
sons distinct and apart from a desire to decrease labor costs." 853
F.2d at 228. Indeed, labor costs are "inescapably" a part of the eco-
nomic calculus that a company must consider in deciding whether to
relocate. Id.
The union contends that Arrow is distinguishable because Arrow
did not involve a claim of anti-union animus. This distinction is
unavailing. The phrase "terms and conditions of employment" does
not magically change meaning with the infusion of anti-union animus.
Section 8(a)(5) simply does not cover plant relocations or partial clos-
ings. This does not mean, of course, that the union and the General
Counsel are without a remedy for anti-union animus. The relevant
section to redress this animus is the broader language of Section
8(a)(3), not the more circumscribed text of Section 8(d) and 8(a)(5).
See First National Maintenance, 452 U.S. at 682 ("[T]he union’s
legitimate interest in fair dealing is protected by § 8(a)(3)."); Darling-
ton, 380 U.S. at 268-69. Furthermore, the union can certainly protect
its interest through bargaining over the effects of the decision to relo-
cate, which is a mandatory subject of bargaining under Section
8(a)(5). See First National Maintenance, 452 U.S. at 681-82; Arrow,
DORSEY TRAILERS, INC. v. NLRB 17
853 F.2d at 231. And, of course, nothing in the Act prevents permis-
sive bargaining over a closure or relocation decision. What we decline
to do, however, is to expand the scope of mandatory or impasse bar-
gaining to matters which the relevant statutory sections do not
include. Because a plant relocation is not a term or condition of
employment, the company did not violate Section 8(a)(5) by failing
to bargain to impasse on the work transfer.
D.
The Board used its remedial powers under § 10(c) to order the res-
toration of operations at the Northumberland plant. See 29 U.S.C.
§ 160(c) (giving Board the power to issue an order requiring company
"to cease and desist from such unfair labor practice, and to take such
affirmative action including reinstatement of employees . . . as will
effectuate the policies of" the NLRA). The company alleges that
requiring it to reopen the plant will cause an undue economic bur-
den.* See Fibreboard, 379 U.S. at 216 (establishing undue burden
standard); see also Coronet Foods, Inc. v. NLRB, 158 F.3d 782, 795-6
(4th Cir. 1998) (applying undue burden test). Regardless, a restoration
order is beyond the authority of the Board when the unfair labor prac-
tice does not involve the discriminatory closing of a company facility.
See, e.g., Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 957
(D.C. Cir. 1988). We have found that the company did not commit
an unfair labor practice by moving the plant from Northumberland to
Cartersville or by failing to bargain to impasse about the move. Con-
sequently, the Board’s order is not supportable given the remaining
violations of the Act.
Indeed, the Supreme Court warned that restoration orders "trench[ ]
. . . closely upon otherwise legitimate employer prerogatives." Dar-
lington, 380 U.S. at 276. When a company must expend significant
funds or make new capital investments to restore operations, the order
will be unduly burdensome given its economic cost. See Coronet
Foods, 158 F.3d at 794-96 (despite the fact that company violated
*The company asserts in its brief that the Northumberland facility
"has, in fact, been sold." We do not rely on this point, however, since this
evidence is not in the record submitted to us, and was not in the record
before the ALJ or the Board.
18 DORSEY TRAILERS, INC. v. NLRB
Section 8(a)(3) by shutting down transportation facility, an order
requiring company to restore the abolished department constituted an
undue burden and therefore was invalid). Restoration orders to reopen
a facility are presumptively suspect given the substantial cost in both
human and monetary terms. See id. In this case, the unfair labor prac-
tices that have been upheld come nowhere close to allowing the
Board to order such a draconian remedy.
IV.
The decision of where to locate a business is fundamentally a man-
agerial decision. Companies must account for the costs of operating
a facility as well as the benefits of working in a particular place. Thus
a company is under no statutory obligation to bargain about judg-
ments that lie at the entrepreneurial heart of an enterprise. See First
National Maintenance, 452 U.S. at 676. In this case, the company
made its decision to relocate its plant for a variety of economic rea-
sons. Although Dorsey Trailers violated the Act in the ways we have
recounted, it did not do so by relocating its plant to a more favorable
business environment or by failing to bargain to impasse about the
move. Accordingly, enforcement of the Board’s order is granted in
part and denied in part. On remand, the order shall be modified to
conform with this decision.
ENFORCEMENT GRANTED IN PART,
DENIED IN PART, AND REMANDED