Perdue Farms Inc v. NLRB ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 3, 1998 Decided May 29, 1998
No. 97-1335
Perdue Farms, Inc., Cookin' Good Division,
Petitioner/Cross-Respondent
v.
National Labor Relations Board,
Respondent/Cross-Petitioner
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
D. Christopher Lauderdale argued the cause for
petitioner/cross-respondent. With him on the briefs was
Erin E. Swann.
David A. Fleischer, Senior Attorney, National Labor Rela-
tions Board, argued the cause for respondent/cross-petitioner.
With him on the brief was Linda Sher, Associate General
Counsel, and Aileen A. Armstrong, Deputy Associate General
Counsel. Margaret A. Gaines, Supervisory Attorney, and
Steven B. Goldstein, Attorney, entered appearances.
Before: Silberman, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Opinion dissenting in part filed by Circuit Judge Randolph.
Tatel, Circuit Judge: After a union lost a representation
election at a chicken processing plant, the National Labor
Relations Board found that the company had committed
unfair labor practices by interrogating employees about their
union sympathies, as well as by increasing wages and imple-
menting a new attendance policy in order to influence the
election. The Board also approved the administrative law
judge's issuance of a preclusion order as a sanction for the
employer's violation of a subpoena. Because substantial evi-
dence in the record supports the Board's findings, and be-
cause the ALJ's preclusion order was not an abuse of discre-
tion, we deny the company's petition for review and, with one
exception, grant the Board's cross-application for enforce-
ment.
I
Two months after petitioner Perdue Farms, Inc. acquired a
chicken processing plant in Dothan, Alabama, in January
1995, the Laborers' International Union of North America,
AFL-CIO, Local 784 began an organizational campaign. In
April, the Union filed a petition for a representation election.
The election occurred on June 15. The Union lost by a
substantial majority.
Objecting to the conduct of the election, the Union charged
Perdue with violating sections 8(a)(1) and (3) of the National
Labor Relations Act, 29 U.S.C. s 158(a)(1), (3) (1994). Sec-
tion 8(a)(1) makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in section 157 of this title." Id.
s 158(a)(1). Section 8(a)(3) prohibits "discrimination in re-
gard to hire or tenure of employment or any term or condi-
tion of employment to encourage or discourage membership
in any labor organization." Id. s 158(a)(3).
Following a seven-day hearing, the administrative law
judge found that the employer had violated sections 8(a)(1)
and (3) of the Act. Adopting the ALJ's findings, the Board
agreed that Perdue violated section 8(a)(1) by interrogating
employees about their union activities and sympathies, by
confiscating union materials from employees entering the
plant, by threatening to close the plant if the Union won the
election, by promising increased benefits, by changing the
plant attendance policy two days before the election, and by
timing a wage increase and elimination of an attendance
bonus program for the day before the election, all in order to
influence the election's outcome. Cooking Good Div. of Per-
due Farms, Inc., 323 N.L.R.B. No. 50, at 3-5, 8-10 (Mar. 31,
1997). The Board also found that the timing of the wage
increase and the changing of the attendance policy violated
section 8(a)(3), id. at 9-10, a somewhat surprising conclusion
in view of the fact that section 8(a)(3) has no applicability
where, as here, the record contains no evidence of discrimina-
tion. Conceding this point, agency counsel advised us at oral
argument that the Board no longer sought enforcement of the
section 8(a)(3) portion of its order. The Board found that the
interrogation of employees, the confiscation of union materi-
als, the timing of the wage increase, and the changing of the
attendance policy also constituted objectionable conduct af-
fecting the election. It thus issued a cease-and-desist order,
set aside the results of the election, and ordered a new one.
Id. at 12.
Perdue now petitions for review of the Board's findings
regarding the wage increase, the changed attendance policy,
and the interrogation of employees. Perdue also challenges
the ALJ's exclusion of certain evidence as a sanction for the
company's violation of a subpoena. The Board cross-applies
for enforcement.
II
We begin with the company's challenge to the ALJ's exclu-
sion of evidence. Prior to the hearing, the Board's General
Counsel served Perdue's human resources manager, Jimmy
Chappell, with a subpoena duces tecum requesting notes and
other records "which reflect the content of meetings between
Jimmy Chapel [sic] and employees conducted between May 1,
1995 and June 15, 1995." Although Perdue produced undated
notes of meetings that it asserted occurred on or about May
11, it refused to produce any other documents relating to
meetings occurring between May 1 and June 15. Perdue
argued that the subpoena was "overly broad" because, al-
though the subpoena sought documents for a six-week period,
the original complaint alleged violations by Chappell only on
or about May 11. Rejecting Perdue's argument and quoting
the Federal Rules of Evidence's definition of "relevant evi-
dence," the ALJ concluded that the company's view of rele-
vance was overly narrow, noting that six unfair labor practice
allegations named Chappell, that witnesses testified to meet-
ings Chappell held from March to late May, and that the
notes could contain "admissions relating to other aspects of
the case." Cooking Good Div., 323 N.L.R.B. No. 50, at 5.
Pointing out that Perdue claimed no privilege and neither
asked for in camera review of the disputed notes nor offered
any other reason for refusing to produce them, the ALJ
barred the company from introducing virtually any evidence
regarding Chappell's meetings, including the May 11 meet-
ings for which Perdue had provided notes. Id.
Perdue challenges the ALJ's ruling on two accounts: It
claims that documents relating to the June meetings were
irrelevant; it also claims that having produced all requested
documents regarding Chappell's May 11 meetings, it should
have been allowed to present testimony and documentary
evidence about those meetings. Reviewing the ALJ's ruling
for abuse of discretion, Dayton Hudson Dep't Store Co. v.
NLRB, 79 F.3d 546, 552 (6th Cir. 1996), we reject both
arguments.
Section 11(1) of the National Labor Relations Act, 29
U.S.C. s 161(1), authorizes subpoenas for evidence "that re-
lates to any matter under investigation or in question." Id.Information sought in an administrative subpoena need only
be "reasonably relevant." United States v. Morton Salt Co.,
338 U.S. 632, 652 (1950); see also NLRB v. Line, 50 F.3d 311,
314 (5th Cir. 1995) (applying Morton Salt's "reasonably rele-
vant" standard to NLRB subpoenas). Citing In re Sealed
Case (Admin. Subpoena), 42 F.3d 1412 (D.C. Cir. 1994),
where we quashed a subpoena seeking information about
"other wrongdoing, as yet unknown," id. at 1419, Perdue
argues that the request for documents regarding meetings in
June lies beyond even the broadest notions of relevance. We
disagree. Unlike the subpoena in In re Sealed Case, the
subpoena here sought not information regarding "other
wrongdoing, as yet unknown," but information relating to
specific allegations of wrongdoing contained in the General
Counsel's complaint. As the ALJ found, the subpoenaed
material could have provided evidence regarding specific alle-
gations not involving Chappell and/or events occurring from
May 1 to the June 15 election. Under these circumstances,
the ALJ's conclusion that the subpoenaed material was rele-
vant did not amount to an abuse of discretion.
We reach the same conclusion with respect to the ALJ's
preclusion order. "The preclusion rule," we have said, "pre-
vents the party frustrating discovery from introducing evi-
dence in support of his position on the factual issue respecting
which discovery was sought." Atlantic Richfield Co. v. U.S.
Dep't of Energy, 769 F.2d 771, 794 (D.C. Cir. 1984). Pointing
out that it had not "frustrat[ed] discovery" with respect to
Chappell's May 11 meetings, Perdue argues that it should
have been allowed to offer testimony about those meetings
and to establish, contrary to the testimony of certain employ-
ees, that Chappell conducted no other meetings during the
month. Once a party's challenge to a subpoena has been
rejected, however, the party cannot "pick and choose which
parts ... it will obey and which parts it can ignore." UAW v.
NLRB, 459 F.2d 1329, 1342 (D.C. Cir. 1972). A party refus-
ing to comply with a subpoena risks application of the preclu-
sion rule: "Without an adequate evidentiary sanction, a party
served with a discovery order in the course of an administra-
tive adjudicatory proceeding has no incentive to comply, and
ofttimes has every incentive to refuse to comply." Atlantic
Richfield, 769 F.2d at 795.
III
Turning to Perdue's substantive challenges, we will not set
aside a Board decision unless, "reviewing the record as a
whole, it appears that the Board's factual findings are not
supported by substantial evidence or that the Board acted
arbitrarily or otherwise erred in applying established law to
the facts at issue." Synergy Gas Corp. v. NLRB, 19 F.3d
649, 651 (D.C. Cir. 1994). Our review of the Board's factual
conclusions is "highly deferential." LCF, Inc. v. NLRB, 129
F.3d 1276, 1281 (D.C. Cir. 1997); see also Synergy Gas Corp.,
19 F.3d at 654 (Silberman, J., concurring) ("Our review, both
in theory and in practice, is quite deferential."). "If there is
substantial evidence to support the Board's conclusions, we
will uphold the Board's decision even if we would have
reached a different result had we considered the question de
novo." Id. at 651.
Interrogation of Employees
Claiming the Board erroneously applied the relevant legal
standard, Perdue challenges the Board's determination that
Chappell violated section 8(a)(1) by interrogating employees
when he asked them if Union representatives had visited
them at their homes. Interrogation of employees violates
section 8(a)(1) if, under all the circumstances, it reasonably
"tends to restrain, coerce, or interfere with rights guaranteed
by the Act." Rossmore House, 269 N.L.R.B. 1176, 1177
(1984). Both the Board and the courts agree that the start-
ing point for determining whether unlawful interrogation has
occurred is the five-factor test set forth in Bourne v. NLRB,
332 F.2d 47 (2d Cir. 1964):
(1) The background, i.e., is there a history of employer
hostility and discrimination?
(2) The nature of the information sought, e.g. did the
interrogator appear to be seeking information on which
to base taking action against individual employees?
(3) The identity of the questioner, i.e., how high was
he in the company hierarchy?
(4) Place and method of interrogation, e.g., was em-
ployee called from work to the boss's office? Was there
an atmosphere of "unnatural formality"?
(5) Truthfulness of the reply.
Id. at 48; see also Chauffeurs, Local 633 v. NLRB, 509 F.2d
490, 494 (D.C. Cir. 1974). Determining whether employee
questioning violates the Act does not require strict evaluation
of each factor; instead, "[t]he flexibility and deliberately
broad focus of this test make clear that the Bourne criteria
are not prerequisites to a finding of coercive questioning, but
rather useful indicia that serve as a starting point for assess-
ing the 'totality of the circumstance.' " Timsco Inc. v. NLRB,
819 F.2d 1173, 1178 (D.C. Cir. 1987).
Reviewing the entire record and the Board's decision and
" 'recogniz[ing] the Board's competence in the first instance
to judge the impact of utterances made in the context of the
employer-employee relationship,' " Southwire Co. v. NLRB,
820 F.2d 453, 456 (D.C. Cir. 1987) (quoting NLRB v. Gissel
Packing Co., 395 U.S. 575, 620 (1969)), we think the Board
properly applied the Bourne factors and that its section
8(a)(1) finding is supported by substantial evidence. Employ-
ee Willie Jackson testified that during a meeting with about
fifty employees on or about May 19, Chappell asked whether
"our homes and everything had been visited, you know, by
the union associate." According to Jackson, he and one other
man raised their hands in response. Chappell denied that the
meeting ever occurred, but the ALJ discredited his testimo-
ny, credited Jackson's testimony instead, and found that
Chappell had questioned employees in violation of section
8(a)(1). The ALJ said:
The setting of the interrogation was a general meeting of
employees and the record does not reflect that the union
sympathies of those present were known to [Perdue].
The questioner was a high official of [Perdue] who gave
no assurances that by asking the question the employees
would have nothing to fear. Additionally, Chappell was
from the Maryland headquarters and did not have any
established friendly relationship with the Alabama work-
ers. There was no apparent legitimate reason for the
question, but by seeking this information [Perdue] could
learn who had been talking to the Union's organizers.
Cooking Good Div., 323 N.L.R.B. No. 50, at 5.
Although we agree with Perdue that the "place and meth-
od" of Chappell's questioning of employees (the fourth
Bourne factor) were not particularly coercive, the other
Bourne factors support the Board's finding of unlawful inter-
rogation. Chappell came from Perdue's headquarters and
served as its top human resources supervisor (factor 3). See
Bourne, 332 F.2d at 48; Midwest Reg. Joint Bd., Amalgam-
ated Clothing Workers of Am., 564 F.2d 434, 443 (D.C. Cir.
1977). In his questions to employees, Chappell appeared to
seek information about individual employee union sympathies
(factor 2). Cf. Allegheny Ludlum Corp. v. NLRB, 104 F.3d
1354, 1359 (D.C. Cir. 1997) (" '[A]ny attempt by an employer
to ascertain employee views and sympathies regarding union-
ism generally tends to cause fear of reprisal in the mind of
the employee if he replies in favor of unionism and, therefore,
tends to impinge on his [statutory] rights.' ") (quoting Struk-
snes Constr. Co., 165 N.L.R.B. 1062, 1062 (1967)). Perdue
claims that the ALJ considered circumstances outside the
Bourne factors, i.e., that Chappell "gave no assurances that
by asking the question the employees would have nothing to
fear," Cooking Good Div. 323 N.L.R.B. No. 50, at 5, but both
this court and the Board have found that failure to give such
assurances is relevant to the unlawful interrogation determi-
nation. See Midwest Reg. Joint Bd., 564 F.2d at 443; Fiber
Glass Sys., Inc., 298 N.L.R.B. 504, 504-05 (1990).
Challenging the ALJ's finding that Chappell had no legiti-
mate reason to interrogate employees, Perdue claims that
because it had received complaints that Union organizers
were representing themselves as Perdue agents when visiting
employees in their homes, it needed to know the answers to
Chappell's questions to gauge the reach of the Union's mis-
representations. But Perdue received the complaints over a
month before the Union filed its election petition, the compa-
ny immediately met with employees to warn them that Union
organizers representing themselves as Perdue agents were
reportedly visiting employee homes, and the meeting at which
Chappell questioned employees occurred over two months
later, a week after the election had been scheduled. Because
Perdue never claimed that it was still receiving complaints at
that time, we think the record supports the Board's conclu-
sion that Chappell had no legitimate reason for asking the
question.
June 14 Wage Adjustment
The day before the election, on June 14, Perdue informed
employees that they would receive an eighty-cents-per-hour
pay increase, in part to replace the predecessor company's
attendance bonus program under which employees received
bonuses for perfect attendance. Acknowledging that the
amount of the wage adjustment was not "out of the ordinary,"
the Board concluded that its timing was nevertheless "trou-
bling" because "it would be reasonable for the employees to
view the timing of the raise as designed to influence their
voting in the election." Cooking Good Div., 323 N.L.R.B. No.
50, at 9.
The Supreme Court has interpreted section 8(a)(1) to pro-
hibit "conduct immediately favorable to employees which is
undertaken with the express purpose of impinging upon their
freedom of choice for or against unionization and is reason-
ably calculated to have that effect." NLRB v. Exchange
Parts Co., 375 U.S. 405, 409 (1964). Granting benefits does
not violate the Act if it occurs "in the normal course of the
business of an employer, without any motive of inducing
employees to vote against the union." Pedro's Inc. v. NLRB,
652 F.2d 1005, 1008 (D.C.Cir.1981). Put another way, "[a]s a
general rule, an employer's legal duty in deciding whether to
grant benefits while a representation proceeding is pending is
to decide that question precisely as it would if the union were
not on the scene." United Airlines Servs. Corp., 290
N.L.R.B. 954, 954 (1988). Both the decision to confer bene-
fits and the timing of the announcement of such benefits are
subject to "in the normal course of business" analysis: "[T]he
timing of the announcement of a wage increase may violate
section 8(a)(1), 'even though the employer's initial decision to
raise wages was perfectly legitimate.' " St. Francis Fed. of
Nurses and Health Prof'ls v. NLRB, 729 F.2d 844, 850 (D.C.
Cir. 1984) (quoting J.J. Newberry Co. v. NLRB, 645 F.2d 148,
151 (2d Cir. 1981)).
Perdue claims that it always intended to follow the previous
owner's practice of granting wage increases between June 1
and July 1 and that the timing of the wage adjustment
occurred "in the normal course of business." "Doubt[ing],"
these assertions, the Board found that the company offered
no documentary evidence that it intended to follow the prac-
tices of the predecessor company, that Perdue "never told
employees to expect raises in June," and that the employees'
"first knowledge of when the raises would be received was the
day before the election." Cooking Good Div., 323 N.L.R.B.
No. 50, at 9. Evidence in the record supports these findings.
One employee testified that in January, shortly after Perdue
acquired the Dothan processing plant, it told employees it
would increase wages and eliminate the attendance bonus, but
that it gave no timetable. Responding to the Union's organiz-
ing efforts, the vice president and general manager of Per-
due's Dothan division, Larry Winslow, sent a March 30 letter
to all employees explaining the company's plans with regard
to changes in wages and benefits, but acknowledging that
Perdue had no "exact timetable for those decisions." The
Winslow letter merely promised improved benefits and wages
"[i]n the next few months." Employees who later asked
when the company would adjust wages and benefits testified
they received vague responses. One employee testified that
when she asked Jimmy Chappell about wages and benefits, he
responded "July 1"; but when she asked him the same
question on another occasion, "he said that he didn't want to
give [the] exact date of July 1, because he didn't want to say
July 1 and it wasn't." Another employee testified that when
Chappell was asked about pay raises at a May meeting, he
replied that he "couldn't give us any information on a pay
increase, but that there was supposed to be a person coming
later to discuss the pay increase." In sum, the record
supports the Board's finding that Perdue neither promised a
mid-June wage adjustment nor informed Dothan employees
that it intended to follow the predecessor's practice of award-
ing annual wage adjustments in June or early July. Thus,
even if the predecessor company's practice was to announce
wage adjustments only days before they were to take effect,
as Perdue contends, because Dothan employees had no rea-
son to know Perdue was following the predecessor's practice,
they could reasonably have viewed the election eve announce-
ment as an attempt to discourage their support for the Union.
Both Perdue and our dissenting colleague argue that June
14 was the only day Perdue could safely grant a wage
increase because any deviation from that date would have
risked a Board finding that it accelerated or postponed the
increase in order to influence the election. This argument
ignores not only that the Board's finding of a section 8(a)(1)
violation rested on the company's failure to inform its employ-
ees that it intended to follow its predecessor's practice, but
also the fact that the predecessor's practice was to raise
wages, not on June 14, but anytime between June 1 and July
1. By failing to announce that it intended to follow its
predecessor's practice and by announcing the pay increase on
the eve of the election, Perdue put itself in the worst possible
position to claim that it had not attempted to influence the
election.
Our dissenting colleague also criticizes the Board's case law
regarding wage increases implemented prior to elections.
See Diss. Op. at 1-2. Perdue, however, makes no such
argument, and normally we do not address issues the parties
fail to raise. See Ryan v. Bentsen, 12 F.3d 245, 249 n.5 (D.C.
Cir. 1993).
June 13 Change in Attendance Policy
Challenging the Board's conclusion that it violated section
8(a)(1) by announcing a change in its attendance policy two
days before the election in order to "discourage the employ-
ees' support for the Union," Cooking Good Div., 323 N.L.R.B.
No. 50, at 10, Perdue argues not that it implemented the
change for some reason other than to influence the election,
but rather that in June 1995, it made no change in the policy.
We think the record contains sufficient evidence to support
the Board's contrary finding. Dothan employee Bryan Smith
testified that he attended a June 13 meeting where Supervi-
sor Tony Williams told employees that the company was
changing the attendance policy. Although admitting that he
first learned the specific details of the old policy at the
meeting, Smith testified that under that policy employees
were "written up" the first time they were late or missed a
day, and that Williams described the new policy as "when you
missed a day, that would count as half an occurrence. And
that if you missed two days, that was like, then you missed
the whole day, so then you got ... wrote up." As corrobora-
tion for Smith's testimony, the Board pointed to a June 30
memorandum (two weeks after the election) from senior
human resources representative Ed Scarborough, stating:
We are having more associates to come in late to work
[sic], since we do not have the attendance bonus and each
late is a-half of an occurance [sic] against your attend-
ance record. An associate that is late (2) two times has
the equal of (1) one whole occurance [sic], which is the
same as missing one full day and it may cause you to get
a written letter of warning and may even cause termi-
nation if your record is already bad. We ask that each of
you be on time so that you will not have your attendance
record be a bad reflection on you.
According to Perdue, the Scarborough memorandum simply
reminded employees that the predecessor company's attend-
ance policy remained in effect. The Board interpreted the
memorandum differently: "The message in this memo is that
[Perdue] has made ... changes relative to the elimination of
the attendance bonus and the calculation of occurrences."
Cooking Good Div., 323 N.L.R.B. No. 50, at 10. We think the
Board's interpretation is not unreasonable. The memoran-
dum cites two reasons for increased tardiness: the elimina-
tion of the attendance bonus and the treatment of each
instance of tardiness as one-half of an occurrence. The
Board read the memorandum to mean that the latter, like the
former, resulted from a recent change in policy at Dothan.
Although Perdue offers an equally plausible interpretation of
the memorandum, the standard under which we review Board
findings does not permit us to "displace the Board's choice
between two fairly conflicting views, even though the court
would justifiably have made a different choice had the matter
been before it de novo." Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951). We will thus not disturb the
Board's finding that the June 30 memorandum signaled that
the attendance policy changed in June 1995.
Perdue points to Scarborough's testimony that the compa-
ny did not change the attendance policy until January 1996,
six months after the election. Even if true, Scarborough's
testimony does not undermine the Board's finding that Per-
due also changed the policy in June 1995. Although Scarbor-
ough's testimony (that the change occurred in January 1996)
differs from Smith's (that the policy changed in June 1995), so
long as the record contains substantial evidence supporting
the Board's findings, as it does here, we defer to the Board's
analysis, even if other evidence in the record could support an
alternative determination. See Harter Tomato Prods. Co. v.
NLRB, 133 F.3d 934, 938 (D.C. Cir. 1998); see also Synergy
Gas Corp., 19 F.3d at 651.
Finally, to the extent that Perdue challenges Smith's credi-
bility, it has failed to meet the heavy burden required to
overturn a credibility determination. " '[C]redibility determi-
nations may not be overturned absent the most extraordinary
circumstances such as utter disregard for sworn testimony or
the acceptance of testimony which is on its fac[e] incredible.' "
E.N. Bisso & Son, Inc. v. NLRB, 84 F.3d 1443, 1445 (D.C.
Cir. 1996) (quoting Amalgamated Clothing & Textile Workers
Union v. NLRB, 736 F.2d 1559, 1563 (D.C. Cir. 1984)). The
ALJ "credit[ed] Smith's testimony that Williams did an-
nounce a change in the attendance system to a less severe
method at the June 13 meeting." Cooking Good Div., 323
N.L.R.B. No. 50, at 10. While not expressly based upon
observation of the witness's demeanor, the ALJ's decision to
credit Smith's testimony reflected his consideration of con-
flicting testimony from Williams and Scarborough, as well as
of Scarborough's June 30 memorandum. Although Smith
admitted that his memory of the June 13 meeting was "not
good," and needed to refresh his recollection before testifying,
his testimony was neither incredible nor did it become so
simply because he was not completely certain of every detail
of the meeting. Because Perdue has failed to demonstrate
"extraordinary circumstances," we decline to overturn the
ALJ's decision to credit Smith's testimony. See NLRB v.
Creative Food Design Ltd., 852 F.2d 1295, 1297 (D.C. Cir.
1988) (refusing to overturn an ALJ's credibility determination
because, after evaluating conflicting testimony, the ALJ cred-
ited one version of the evidence presented).
IV
We deny Perdue's petition for review. Except for the
Board's section 8(a)(3) findings, we grant its cross-application
for enforcement.
So ordered.
Randolph, Circuit Judge, dissenting in part: When a
traffic light simultaneously blinks "Stop" and "Go" everyone
knows repairs are needed. If a motorist encountering the
light proceeds ahead while another motorist pauses, it is
unimaginable that both would be guilty of failing to heed the
signal. The Board's "law" governing pre-election wage in-
creases is like the faulty traffic light and the Board's enforce-
ment of that "law" approaches the unimaginable. As the
Board sees it, when yearly wage increases are the norm, and
the one-year anniversary falls just before a representational
election, employers who proceed to grant a raise on that date
are illegally trying to influence the vote. The Board also
believes that employers who hold back and let the date pass
are just as guilty of an unfair labor practice. Board theory
one is that a company giving the raise demonstrates its power
over its employees, implicitly threatening them with the
removal of benefits should they vote for the union; Board
theory two is that a company postponing the wage increase
until after the election unfairly attempts to scare its employ-
ees into voting against the union. Theory one has received
the Supreme Court's blessing, see NLRB v. Exchange Parts
Co., 375 U.S. 405, 409 (1964), and it has also received severe
criticism. See Derek C. Bok, The Regulation of Campaign
Tactics in Representation Elections Under the National La-
bor Relations Act, 78 Harv. L. Rev. 38, 113 (1964); Robert A.
Gorman, Basic Text on Labor Law: Unionization and Collec-
tive Bargaining 164 (1976). Regardless of how Board theory
one is judged working alone, when it is considered in tandem
with Board theory two it rises--or more accurately falls--to
the level of arbitrariness. Many courts and administrative
law judges have expressed exasperation with the Board's
Janus-faced doctrine. See, e.g., Pedro's, Inc. v. NLRB, 652
F.2d 1005, 1008 n.8 (D.C. Cir. 1981); J.J. Newberry Co. v.
NLRB, 645 F.2d 148, 151 (2d Cir. 1981); Free-Flow Packag-
ing Corp. v. NLRB, 566 F.2d 1124, 1130 (9th Cir. 1978);
NLRB v. Otis Hosp., 545 F.2d 252, 255 (1st Cir. 1976); Osco
Drug, Inc., 237 N.L.R.B. 231, 232-33 (1978). Why the Board
does not call a halt to this nonsense is unfathomable. The
Board plainly has the power do so. Through its Regional
Directors, the Board can simply schedule elections at a time
removed from the historical anniversary date for unit wage
increases.
Substantial evidence does not, in any event, support the
Board's finding that Perdue gave the wage increases on June
14, 1995, in order to influence the election scheduled for the
next day, and thereby violated s 8(a)(1). Perdue acted on
June 14 because the Board's bewildering doctrine gave the
company no other realistic option. Perdue took over the
Dothan, Alabama plant early in 1995. In previous years,
employees at the plant received their annual pay raises
between June 1 and July 1. In 1994, wage increases at
Dothan were granted on June 15, the first day of the new pay
period. We have held that employers may give wage increas-
es prior to an election "in the normal course of [ ] business,"
Pedro's, 652 F.2d at 1008, and "in a manner and at a time in
accord with past practice," Allen v. NLRB, 561 F.2d 976, 981
(D.C. Cir. 1977). There can be no dispute that it was
Perdue's "normal" practice to maintain an acquired compa-
ny's customary date for granting a pay raise. At Dothan,
only one day naturally suggested itself as the customary date:
June 14, 1995, which as in the 1994 Dothan raise, represented
the first day of the new pay period. Only that date could
clearly be considered "in the normal course of business" at
Dothan, and in compliance--if not with the precedents of the
Board--at least with the decisions of this court.
The obvious question is "What should the company have
done differently?" One idea is that before the election Per-
due should have announced (1) that it was withholding grant-
ing a wage increase on the customary date in order to avoid
the appearance of attempting to "bribe" employees to vote
against the union, but (2) that it would grant the raise after
the election no matter what the outcome. But in terms of the
effect on employees, there is only one difference between the
company's granting the wage increase on June 14 and giving
a promise that the increase will occur on June 16, or some
other time shortly after the election. The difference is not
that the employees will feel less threatened by the company.
The difference is that the announce-the-raise-but-give-it-later
approach means employees will not get their raise on the
customary date and thus will lose money. Who may the
employees blame? Maybe the union. Better yet, the Board,
and the courts who go along with the Board. As an alterna-
tive one might suppose that Perdue should have postponed
the wage increase but made it retroactive to June 14. But by
any measure there is no difference between announcing a
wage increase on June 14, and announcing that a wage
increase will be granted after the election, retroactive to June
14. In any event, both of these options, and others, errone-
ously place the burden on Perdue to alter its normal business
practice to accommodate the union election. See Newport
Div. of Wintex Knitting Mills, 216 N.L.R.B. 1058, 1058
(1975).
I wish also to explain why I would reject the Board's
conclusion that on June 13, two days before the election,
Perdue relaxed Dothan's attendance disciplinary policy in
order to influence votes, and thereby violated s 8(a)(1). See
Cooking Good Div., 323 N.L.R.B. No. 50, at 9-10 (Mar. 31,
1997). The evidence of any such change in policy is slim to
nil. The Board relied chiefly on the testimony of employee
Bryan Smith, who said he attended a meeting held by manag-
er Tony Williams. At first, Smith could not recall Williams
discussing such a policy change, nor could he remember the
date of the meeting, or whether it was close to the election.
Smith also testified that he had no knowledge of the attend-
ance policy in place before the meeting. Only after reviewing
his affidavit was Smith able to give June 13 as the meeting
date. Smith then said Williams announced that the attend-
ance policy "changed" so that "when you missed a day, that
would count as half an occurrence. And that if you missed
two days, that was like, then you missed the whole day, so
then you got write [sic] up...." J.A. 112. How Smith could
take this as a "change" in policy when he admitted not
knowing the existing policy is a mystery. Williams, on the
other hand, flatly denied announcing any change to the
attendance disciplinary policy at any time and Ed Scarbor-
ough, the human resources representative at Dothan, testified
that Perdue first altered this policy on January 15, 1996--six
months after the election.
Scarborough also testified that he was very familiar with
the attendance disciplinary policy instituted by the previous
employer, which he described as follows:
The first two times you are just verbally warned about
being absent; the third time you was [sic] out was a
written warning; the next time was a one-day suspen-
sion; the next time a three-day; and then termination.1
J.A. 276. This matches the description of the "change" Smith
said he heard about at the June 13 meeting.
The Board also relied on a memo by Scarborough issued to
employees on June 30, 1995. See Cooking Good Div., 323
N.L.R.B. No. 50, at 10. But the document merely describes
the existing attendance policy established by the previous
employer: "An associate that is late (2) two times has the
equal of (1) one whole occurrence, which is the same as
missing one full day and it may cause you to get a written
letter of warning...." J.A. 339.
No one produced any written record of a policy change and
not a single witness had a clear memory of any easing of the
attendance policy before the election. If Perdue's goal had
been to influence the election, one would have expected it to
__________
1 Scarborough described the new Perdue attendance policy
implemented on January 15, 1996:
The first two times you are [absent], there is just nothing done
about it, you are free; the third time you are out, you receive a
written verbal [sic] warning; the next time you get a second
warning; the third is a final warning; and then the fourth we
give a three-day suspension pending investigation of our rec-
ords to make sure that our records are correct. If they are
correct, when they get the three-day suspension, they are
term[inat]ed. They can work off an incident, though every 28
days with Perdue.
J.A. 277-78.
broadcast the new policy loudly and clearly. Yet on this
matter of importance to employees, there was no proof of any
widespread knowledge among them. Given this state of
affairs, there was no substantial evidence that Perdue made
any policy change, let alone that it intended to influence the
election.