Bro-Tech Corp. v. National Labor Relations Board

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
1-31-1997
Bro-Tech Corp v. NLRB
Precedential or Non-Precedential:
Docket 95-3343,95-3399
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 95-3343 and 95-3399
___________
BRO-TECH CORP., t/a Purolite
Petitioner No. 95-3343,
v.
NATIONAL LABOR RELATIONS BOARD
Respondent.
___________
NATIONAL LABOR RELATIONS BOARD
Petitioner No. 95-3399,
v.
BRO-TECH CORPORATION, t/a PUROLITE,
Respondent.
___________
ON PETITION FOR REVIEW AND
CROSS APPLICATION FOR ENFORCEMENT
(Nos. 4-RC-17846 and 4-CA-234586)
___________
ARGUED JUNE 27, 1996
BEFORE: BECKER, NYGAARD and LEWIS, Circuit Judges.
(Filed January 31, 1997)
___________
Stephen J. Cabot, Esq. (ARGUED)
Harvey, Pennington, Herting & Renneisen
1835 Market Street
Eleven Penn Center, 29th Floor
Philadelphia, PA 19103
Attorney for Bro-Tech Corp. t/a Purolite
Aileen A. Armstrong, Esq.
Richard A. Cohen, Esq. (ARGUED)
National Labor Relations Board
1
1099 14th Street, N.W.
Washington, DC 20570-0001
Attorneys for National Labor Relations Board
___________
OPINION OF THE COURT
___________
BECKER, Circuit Judge.
Bro-Tech Corporation t/a Purolite ("Purolite")
petitions for review of orders of the National Labor Relations
Board ("Board" or "NLRB"): (1) certifying Local 107 of the
International Brotherhood of Teamsters as the collective
bargaining representative for certain of Purolite's employees;
and (2) finding that Purolite engaged in an unfair labor practice
by refusing to recognize and bargain with the union in violation
of § 8(a)(5) of the National Labor Relations Act. Purolite seeks
to invalidate the certification of the election results and the §
8(a)(5) order on the ground that the union engaged in prohibited
campaign practices under the Board's theory of campaign speech
announced in Peerless Plywood Co., 107 N.L.R.B 427 (1953), and
Alliance Ware, 92 N.L.R.B. 55 (1950), and that the Board acted
arbitrarily in failing to set aside the election under the
authority of those cases. The Board has cross-petitioned for
enforcement of its orders. Because we conclude that the Board
has neither adequately reconciled its decision in the present
case with the theory of campaign speech announced in Peerless
Plywood, nor created, with adequate explanation, a new theory of
campaign speech to replace the Peerless Plywood rationale, we
2
deny the petition for enforcement, grant the petition for review,
and remand for further proceedings.1
I.
A.
Local 107 (“the Union”) petitioned the Board to
represent the production, maintenance, warehouse, and laboratory
employees of Purolite. Pursuant to a stipulated agreement, the
Board conducted an election by secret ballot on July 17, 1992.
Employees cast their votes in the plant's ground floor conference
room, which we will refer to as the voting room.
On the day of the election, the Union parked a truck
equipped with loudspeakers across the street from the plant.
From 7:00 a.m. to 4:30 p.m., the truck broadcast taped music with
pro-union lyrics. Certain witnesses testified that the music
blared throughout the plant, except the so-called Cation plant
and the voting room. Other witnesses testified that, when the
doors were open, they could hear the songs inside the voting
room.
Because the tenor of the lyrics is so important to the
resolution of the case, we recite the words of the songs:
First song:
1. Purolite also made a charge of improper electioneering based
upon the testimony of witnesses Angelo Siano and Jose Mercado
about certain representations that Union observer Sammy Santana
allegedly made to several employees. The Hearing Officer
rejected this testimony, finding both Siano and Mercado
unreliable. Instead, the Officer credited the testimony of the
Board's observer DeNio, whose version was favorable to the Union.
The Board adopted the Hearing Officer's report in this respect.
The Board's finding is supported by substantial evidence, and we
will neither disturb it nor discuss it further herein.
3
Throughout North America
you see us on the job
from Atlanta to Calgary
Vancouver to Cape Cod
You can't tell us by our color
you can't tell us by our hat
we're the backbone of the country
we take pride in being that
We're brothers and we're sisters
working hard for what is fair
you can always tell a Teamster
by that certain pride he wears
Meeting all the challenges
united we stand tall
Proud to be a Teamster
that's why we'll never fall
We are the North Americans
from sea to shining sea
we backed our country in the fight
we earned the right to be
When FDR put out the call
we kept him rolling through it all
we are the workers who stand united
we're Teamsters one and all
We're carving out a better life
for our loved ones old and young
we're giving them the melody
the song that's not been sung
In a moment of reflection
I close my eyes and see
the dreams our fathers had for us
are now reality
Second song:
Let's hail the Teamsters Union and sing of it with pride
Remember Teamster members, your Union's by your side
As long as we're together, our numbers will increase
and this will be our motto: prosperity and peace
Now all for one and one for all is something you have heard
But when the Teamsters say it, the boys mean every word
So hail the Teamsters Union and shout it loud and clear
The Brotherhood of Teamsters will always be right here . . .
4
When the election was completed, the Union's margin of
victory was five votes.2
B.
Purolite filed nine objections to the Union’s conduct
allegedly affecting the results of the election. Following an
investigation, the Regional Director recommended that all but two
of Purolite's objections be overruled without a hearing. The two
remaining objections involved the Union's use of the sound truck
and allegations that the Union observer engaged in improper
electioneering. The Regional Director determined that, because
these two objections raised substantial material issues of fact,
a hearing was necessary to determine whether the use of the sound
truck violated the rule promulgated in Peerless Plywood Co., and
whether Santana's conduct constituted improper electioneering in
the polling area in violation of the rule of Milchem Inc., 170
N.L.R.B. 362 (1968). See supra n.1. The Board adopted the
Regional Director's Report and Recommendations.
After conducting three days of hearings, the Hearing
Officer issued a Report and Recommendations on Purolite's two
remaining objections. As to the Union's use of the sound truck,
the Hearing Officer first considered whether the songs
constituted campaign speech, writing:
[T]he songs broadcast into the plant on the day of the
election were no different than a speech
because the lyrics of these songs include
campaign phrases such as “the brotherhood of
2. Purolite challenged the validity of two votes; however, these
votes were insufficient to change the outcome of the election.
5
Teamsters will always be right here;” ... .
These messages, although sung and accompanied
by music, are clearly emotional appeals to
sway voters in favor of the Petitioner by
telling the voters how the Petitioner will
benefit them if elected. ... These lyrics
contain significantly more meaning and are
more characteristic of a speech than is the
mere repetition of a slogan to vote for the
Petitioner accompanied by music, which the
Board determined not to be a campaign speech
in Crown Paper Board, 158 N.L.R.B. 440.
Although the songs contained no specific
mention of the Employer, or any campaign
issue, the message behind the lyrics is
clear: The Petitioner, if elected, will be
"working hard for what is fair" and "carving
out a better life," bringing "prosperity and
peace." ... Often, last minute campaign
speeches do not focus on any specific issue
but are more generalized themes of how voting
for a particular party will benefit the
employees. Such is the case here.
The Hearing Officer then recommended that Purolite's
first objection be sustained because the sound truck broadcasts
violated the Board's Peerless Plywood rule against holding
captive audience speeches within twenty-four hours of the
election. However, the Officer rejected Purolite's alternative
argument advanced in its post-hearing brief that the songs
violated the Board's rule, which it announced in Alliance Ware,
against electioneering at or near the polling place. In that
regard, she found that "there [wa]s no evidence that employees
were waiting in line to vote in th[e] corridor [outside the
voting room] where the broadcast was heard," and that "the record
is clear that the broadcast could not be heard within the polling
areas [itself]."
The Board adopted most of the Hearing Officer's Report
and Recommendations, but rejected her conclusion that the sound
6
truck broadcasts constituted campaign speech. Instead, the Board
concluded that the songs are "more similar to appeals to vote set
to music," which the Board had previously determined to be
unharmful in Crown Paper Board, 158 N.L.R.B. 440 (1966).
According to the Board, the songs "do not make any specific
campaign promises; do not address wages, hours, terms or
conditions of employment or other collective bargaining issues;
do not refer in any way to the Employer; and indeed, do not
contain specific appeals to vote in favor of Petitioner." As
such, "[t]hese phrases do not convey the type of message that
requires a response or rebuttal from the employer," and the
Union's broadcasts of the songs thus did not violate the Board's
rule against campaign speech to a captive audience within 24
hours of an election. Based on its characterization of the
songs, the Board also rejected Purolite's argument that the songs
constituted improper electioneering "at or near the polls.” A
certificate of representation was then issued.
Despite the Board's decision, Purolite refused to
negotiate with the Union. In response, the Union filed an unfair
labor practice charge with the Board. Purolite admitted its
refusal to bargain but challenged the validity of the Board's
certification of the Union. Following motions for summary
judgment, the Board concluded that Purolite's refusal to bargain
with the Union violated § 8(a)(1) and (5) of the National Labor
Relations Act, 29 U.S.C. § 158(a)(1) & (5). This appeal
followed. The Board had jurisdiction over the unfair labor
practice charge under 29 U.S.C. § 160(a) & (b). We have
7
jurisdiction to review the Board's decision under 29 U.S.C.
§ 160(e) & (f).
II.
Our authority to review an order of the NLRB is
limited. "If the Board adopts a rule that is rational and
consistent with the Act, then the rule is entitled to deference
from the courts. Moreover, if the Board's application of such a
rational rule is supported by substantial evidence on the record,
courts should enforce the Board's order." District 1199P,
National Union of Hospital and Health Care Employees v. NLRB, 864
F.2d 1096, 1101 (3d Cir. 1989) (quoting Fall River Dyeing &
Finishing Corp. v. NLRB, 107 S. Ct. 2225, 2235 (1987)); see also
NLRB v. Joy Techs., Inc., 990 F.2d 104, 107-08 (3d Cir. 1993).
Deference to the Board, however, is not automatic but depends
"substantially on the persuasiveness of the agency view." Local
825, Int’l Union of Operating Eng’rs v. NLRB, 829 F.2d 458, 460
(3d Cir. 1987).
Where the review is not a question of fact, “but of a
judgment as to the proper balance to be struck between
conflicting interests, ‘[t]he deference owed to an expert
tribunal cannot be allowed to slip into a judicial’ inertia which
results in the unauthorized assumption by an agency of major
policy decision properly made by Congress.” Id. (quoting NLRB v.
Brown, 85 S. Ct. 980, 988 (1965)). In order to persuade the court
in these situations, the Board must provide the “reasons for its
actions" in addition to "sufficient factual findings to support
them." Local 467, Upholsterers' International Union of North
8
America v. NLRB, 419 F.2d 179, 182 (3d Cir. 1969); see also
Atchison, Topeka, & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412
U.S. 800, 807 (1973) (The "arbitrary and capricious" standard of
review requires that an "agency [] set forth clearly the grounds
on which it acted."); Local 825, Int’l Union Operating Eng’rs,
829 F.2d at 460 ("A position without reasoning has little power
to persuade."); NLRB v. Auciello Iron Works, Inc., 980 F.2d 804,
813 (1st Cir. 1992) (quoting Northport Health Servs., Inc. v.
NLRB, 961 F.2d 1547, 1553-54 (11th Cir. 1992) (“A court may
require that the Board’s decision be supported by articulate,
cogent and reliable analysis.”).
Additionally, where, as here, the Board has reversed a
Hearing Officer's findings in its decision, the Board must offer
some explanation for the reversal before the court of appeals
will defer to its determinations. See Alabama Ass’n of Ins.
Agents v. Bd. of Governors of the Fed. Reserve System, 533 F.2d
224, 247 (5th Cir. 1976) (Board's findings are vulnerable "where
it merely announces an opposite conclusion from the [ALJ] without
explanation”); ITT Continental Baking Co. v. FTC, 532 F.2d 207,
219 (2d Cir. 1976) (when agency departs from the ALJ's findings
"it must explain why"); Greater Boston Television Corp. v. FCC,
444 F.2d 841, 853 (D.C. Cir. 1970) ("agency's departures from the
Examiner's findings are vulnerable if they fail to reflect
attentive consideration to the Examiner's decision"); cf.
Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000, 1008 (3d
Cir. 1981) (quoting Eastern Eng'g & Elevator Co. v. NLRB, 637
F.2d 191, 197 (1980)) (Board's decision may be less "substantial"
9
when an "impartial experienced examiner who has observed the
witnesses and lived with the case has drawn conclusions different
from the Board's ... .").
An additional consideration informs our application of
the deference principle in the elections context: the Board acts
in this context with scant direction from Congress. Congress has
said no more than that elections must be "fair" and free of
"interfere[nce], restrain[t], [and] coerc[ion]." See 29 U.S.C.
§§ 158-160. The Board has been asked to translate these
guideposts into practical rules of election procedure. See,
e.g., General Shoe Corp., 77 N.L.R.B. 124 (1948). Considering
the limits of Congress's constitutional power to delegate its
authority, it gives us pause when the Board acts legislatively
without clear Congressional direction unless there is rigorous
judicial review.
The line-drawing that the non-delegation doctrine
requires has kept the Supreme Court from enforcing it. See
Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J.,
dissenting) ("But while the doctrine of unconstitutional
delegation is unquestionably a fundamental element of our
constitutional system, it is not an element readily enforceable
by the courts."). We believe, however, that when the
circumstances we have described herein operate together, we have
an especial right to insist on rigorous, reasoned NLRB decision
making. The Board has not supplied such decision making here.
III.
10
A.
In Peerless Plywood, the NLRB prohibited both employers
and unions "from making election speeches on company time to
massed assemblies of employees within 24 hours before the
scheduled time for conducting an election." 107 N.L.R.B. at 429.
The Board felt compelled to limit preelection campaigning in
these circumstances because experience had demonstrated that last
minute speeches delivered to massed assemblies tended "to create
a mass psychology which overrides arguments made through other
campaign media and gives an unfair advantage to the [speaking]
party," and "to destroy freedom of choice and establish an
atmosphere in which a free election cannot be held." Id. at 429-
30. In an attempt not to circumscribe overly the free speech
interests of employers and unions, the Board also noted that the
Peerless Plywood rule does not prohibit the use of "any other
legitimate campaign propaganda or media," or even the delivery of
speeches within 24 hours of an election on or off the premises
provided "employee attendance is voluntary and on the employees'
own time." Id. at 430.
The NLRB has since applied the Peerless Plywood rule to
limit the use of sound trucks as well as assembly speeches. In
United States Gypsum Co., 115 N.L.R.B. 734 (1956), the Union used
a sound truck to broadcast campaign speeches over a 7 1/2 hour
period the day before the election. While the Board noted that
Peerless Plywood was usually applied to a group or assembly of
employees gathered together for the purpose of hearing a speech,
it concluded that "the critical factor in this regard is not the
11
location of the speaker but whether the employees are exposed to
his remarks." Id. at 735. Because the sound truck broadcast
triggered the same considerations operative in establishing the
Peerless Plywood rule, the Board determined that the Union's
conduct had "destroy[ed] the freedom of choice of the employees,"
and set aside the election. Id.
In Crown Paper Board Co., 158 N.L.R.B. 440 (1966), the
Union used a sound truck to broadcast during a change of shifts
"vote for Local 286" interspersed with music. The Board
distinguished both Peerless Plywood and Gypsum, and determined
that this use of the sound truck was permissible. The Board
first emphasized that, because most employees were not on company
time when they were exposed to the broadcasts, Peerless Plywood
was inapplicable. Id. at 443. The Board then distinguished
Gypsum on several grounds, namely that the broadcast in Crown
Paper Board was "only an appeal to vote ... with musical
interludes," as opposed to a speech; the broadcast lasted "about
an hour," and not all day; and most employees heard the broadcast
while arriving or departing from work, and not on company time.
Id. at 443-44. Finally, the Board specifically addressed the
concerns expressed in Peerless Plywood, concluding that, while
the "Union's repetition of a voting slogan and its music may have
been ``blaring,' ``cacophonous,' or even likely to ``befoul' the
plant ``with a babble of commercials and public cheerleading,'"
the messages were not the type of messages that would influence
voters by creating a mass psychology that overrides other
arguments. Id. at 445.
12
B.
The overarching question in this case is whether the
songs played by the Teamsters constitute prohibited campaign
speech. The Board determined that they were not. If the Board
had adequately explained how its decision can be reconciled with
the Peerless Plywood theory of "campaign speech," or, to the
extent that it cannot, what the analytical basis is for the new
theory that supports the Board's decision, we would be
constrained to defer to the Board's judgment and enforce its
order. But the Board has given no such explanation(s).
We must first consider the Board's decision itself,
which, unless we are missing something, is one whose reasoning
fails to withstand scrutiny. The Board's seminal Peerless
Plywood decision was driven by a concern that the mass psychology
created by campaigning tends to interfere with the "sober and
thoughtful choice which a free election is designed to reflect".
Peerless Plywood, 107 N.L.R.B. at 429. The Hearing Officer, who
observed the witnesses and lived with the case, found that test
met, concluding that the Teamsters’ songs constituted “emotional
appeals to sway voters” and as such were “no different than a
speech.”
Despite the Officer’s findings, the Board reversed her
decision and certified the election. Although expressly adopting
the Officer’s credibility findings and acknowledging that the
sound truck broadcasts were audible within the plant throughout
the day, the Board reasoned that: “Contrary to the [H]earing
13
[O]fficer, we find that the Teamsters songs are more similar to
appeals to vote set to music, which have been found not to
violate the Peerless Plywood prohibition.” According to the
Board, the songs did not constitute campaign speech because they
did "not make any specific campaign promises," and therefore did
“not convey the type of message that require[d] a response or
rebuttal from the employer.” When faced with the rationale
underlying Peerless Plywood, the Board peremptorily stated “the
broad and amorphous quality of the lyrics would not create the
type of ‘mass psychology’ that concerned” the Peerless Plywood
Board. As we see it, in doing so, the Board abandoned without
explanation any standard conception of campaign speech it had
previously articulated.
Like the Hearing Officer, we believe that the songs at
issue clearly fall under the Board's rationale in Peerless
Plywood. Referencing the lyrics set forth supra at 5-6, we
cannot imagine what would more create "mass psychology" that
"tend[s] to interfere with that sober and thoughtful choice which
a free election is designed to reflect" than these lyrics, which,
especially when set to music, appeal to the most visceral
emotions of the workers. That rhetoric is at least as likely and
probably more likely to induce "mass psychology" than a dry
speech addressing specific campaign issues, even wages and hours.
If modern political campaigns have taught us anything, it is
that this type of emotional rhetoric has a heavy impact upon the
voter. It certainly warrants no less a response from the
employer than more specific campaign rhetoric. While we may not
14
substitute the Board’s conclusion with our own, even though we
find the Board’s conclusion to be illogical, we can at the least
require that the Board do more than discard its Peerless Plywood
doctrine without explanation.
The Board's failure to distinguish the precedent of
Peerless Plywood engenders greater concern when viewed as part of
the Board's total jurisprudence in this area. As reflected by
our previous description of the Peerless Plywood case law, the
Board has chosen to develop union election law through ad hoc
adjudication. We recognize that the Board generally retains this
discretion. See SEC v. Chenery Corp., 332 U.S. 194, 203 (1947).
But it is especially unfortunate when the Board puts forth such
a patchwork of adjudications without adequate rationalization,
thereby abandoning potential litigants inside a maze of decisions
with no means to map an exit. In the end, Peerless Plywood, 107
N.L.R.B. 427 (1950), United States Gypsum, 115 N.L.R.B. 734
(1956), Crown Paper, 158 N.L.R.B. 440 (1966), and now this case,
create exactly this peril.
The Board defends its decision in part by asserting its
congressional mandate to establish the rules in this area. We do
not question this mandate. But, as we have noted, in fashioning
a new rule, the Board's authority is not without boundaries. The
Board may not, by ipse dixit, simply issue new rules (or
"interpret" its old ones) without explaining the reason for their
issuance (or reinterpretation). See Atchison, Topeka & Santa Fe
Ry., 412 U.S. at 807. In light of its disregard for the Hearing
Officer's findings and its departure from the Peerless Plywood
15
rule, the Board must explain itself in order to obtain the
deference that it seeks.
The Board, therefore, had two options in approaching
this case: it could have (1) explained how its decision to make
the existence of specific campaign issues the dispositive issue
in this case is consistent with the Peerless Plywood rationale;
or (2) with adequate explanation, created a new theory of
campaign speech to replace the Peerless Plywood rationale. It
did neither. For this reason, and in order to provide the Board
with the opportunity to satisfy this standard, we will deny the
petition for enforcement, grant the petition for review, and
remand for further proceedings.
IV.
Purolite's alternative argument is that, because the
broadcasts could be heard directly outside the voting room and
inside the room when the door was open, the broadcasts violated
the rule established in Alliance Ware, 92 N.L.R.B. 55 (1950),
and, therefore, the Board's failure to apply Alliance Ware
amounts to an abuse of discretion. See Industrial Acoustics Co.
v. NLRB, 912 F.2d 717, 722 (4th Cir. 1990) (holding that the
failure to apply Peerless Plywood rule without abandoning it
constitutes an abuse of discretion).
In Alliance Ware, a sound truck broadcast
"electioneering material" across the street from the employer's
parking lot. Although there was no evidence that the sound truck
broadcasts were audible inside the plant or in the voting room
itself, all employees entering the plant could hear them. After
16
considering the employer's objection, the Board set aside the
election, explaining that:
The sole question is whether the electioneering
conducted by the Petitioner by means of the
sound truck was "at or near" the polling
place. We believe that it was. The
determining factor is not the linear distance
from the sound truck to the employees'
entrance or the polling place, but the
immediacy of the voice of the electioneering
broadcaster to the eligible voters as they
approached the polling place ... .
Id. at 56.
In the case at bar, the Hearing Officer concluded that
Alliance Ware was inapplicable because "there is no evidence that
employees were waiting in line to vote in this corridor where the
broadcast was heard, and the record is clear that the broadcast
could not be heard within the polling areas." Had the Board
based its decision exclusively upon the Hearing Officer's
conclusion, we would be compelled to grant review and deny
enforcement outright for, in Alliance Ware, the Board found that
the facts that workers were not waiting in line and that the
broadcast could not be heard in the polling place were
irrelevant.
The Board, however, found Alliance Ware inapplicable
based upon different reasoning. According to the Board:
For the same reasons that we do not find the [Union's]
conduct objectionable under Peerless Plywood,
we find no merit in the Employer's argument
that the [Union's] broadcast of the Teamsters
songs constituted improper electioneering "at
or near the polls" under Alliance Ware, 92
N.L.R.B. 55 (1950). In addition, we find it
significant that although Alliance Ware is a
soundcar case, it predates Peerless Plywood
and the Board's application of the Peerless
Plywood rule in soundcar cases.
17
Bro-Tech Corp., 315 N.L.R.B. 1014, 1015 n.7 (citations omitted).
Purolite submits that because Alliance Ware defines "at or near
the polls," and Peerless Plywood defines campaign speech, the
inquiries are clearly distinct. We are less certain; as is
evident, the reasoning in this case defies easy explanation. In
contrast, counsel for the Board argues that the Board simply
overruled Alliance Ware as incompatible with Peerless Plywood.
That too is far from clear. The Board’s decision here appears to
adopt or recognize the same definition for campaign speech and
electioneering in the context of sound trucks. But if
electioneering deserves more protection than campaign speech, as
it may, then the status of Alliance Ware after Peerless Plywood
and the decision in this case is a mystery.
Because of our disposition of the Peerless issue, we
have no need to reach the Alliance Ware issue. But as the
discussion in Part III as well as this Part IV suggest, the
Board’s law in this area is in a state of confusion. We will
leave the Alliance Ware issue to the Board on remand, but we
suggest that this area of Board law could benefit from
thoroughgoing review and clarification.
V.
For the foregoing reasons, the Board's Petition for
Enforcement will be granted in part and denied in part, and the
petition for review will be granted in part and denied in part.
18
The case will be remanded to the Board for further proceedings
consistent with this opinion.3
3. Purolite has argued that it was entitled to an evidentiary
hearing for its objection that the totality of the circumstances
required an new election. With election challenges, however, a
party is only entitled to an evidentiary hearing if the challenge
raises "substantial and material factual issues." NLRB v. ARA
Services, Inc., 717 F.2d 57, 67 (3d Cir. 1983) (in banc); St.
Margaret Mem’l Hosp. v. NLRB, 991 F.2d 1146, 1156 (3d Cir. 1993).
We leave it to the Board to determine on remand whether an
evidentiary hearing on the "totality" issue is in order.
19