National Labor Relations Board v. Taylor MacHine Products, Inc. , 136 F.3d 507 ( 1998 )

NATHANIEL R. JONES, Circuit Judge,

concurring in part and dissenting in part.

I concur in all of the majority’s opinion except for its refusal to enforce the bargaining order instituted by the National Labor Relations Board. Although I recognize that bargaining orders are extraordinary remedies, I believe that such a remedy was appropriate in this case. The ALJ below, found among other things, that several of Taylor’s high level employees threatened workers, interrogated union supporters, permitted and condoned harassment of pro-union employees, and disparately treated pro-union employees. The Board adopted all of those findings and, primarily because Taylor wholly failed to make any substantive challenge to those findings, we did not disturb them on appeal.

This court specifically found, additionally, that substantial evidence supported the Board’s determination that Taylor terminated employee James Howell because of anti-union animus. We also found that the Board’s determination that Taylor relocated its entire secondary operations (and consequently discharged the pro-union employees in those operations) due to anti-union animus was also supported by substantial evidence. Given all of these findings of Taylor’s numerous anti-union activities, including what many courts have found to be the most egregious act an employer can do, threatening to and actually closing plant operations, I would find that the Board’s imposition of a bargaining order was well founded.

I do recognize that there were allegations of union related misconduct in this case, but the minor allegations of misconduct¹ in this case fall far below that which might necessitate a denial of an otherwise proper bargaining order. See, e.g., NLRB v. Triumph Curing Center, 571 F.2d 462, 476 (9th Cir.1978) (enforcing bargaining order even with “extremes of verbal abuse and serious threats of physical violence” on the part of the union, where there was no actual violence); Donovan v. NLRB, 520 F.2d 1316, 1320-24 (2d Cir.1975) (finding union members’ mass picketing, threats, assaults and some property damage insufficient to sustain the “extraordinary sanction of withholding an otherwise appropriate remedial bargaining order”); cf. NLRB v. World Carpets of New York, Inc., 463 F.2d 57, 62 (2d Cir.1972) (denying enforcement of bargaining order where union representative was arrested for physical violence, combined with a campaign of threats and intimidations designed to force cessation of business). In addition, while a substantial amount of Taylor’s anti-union activities occurred before the Union won the set aside election on March 25, 1994, the most egregious occurred after that election. Therefore, I would enforce the bargaining order in this ease.