Mid-Atlantic Regional Council of Carpenters v. National Labor Relations Board

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1971
MID-ATLANTIC REGIONAL COUNCIL OF CARPENTERS,
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent,
HIGH POINT CONSTRUCTION GROUP, LLC,
Intervenor.
No. 04-2113
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
HIGH POINT CONSTRUCTION GROUP, LLC,
Respondent.
On Petition for Review and Cross-application for Enforcement of an
Order of the National Labor Relations Board. (6-CA-32853-1)
Argued: March 17, 2005 Decided: May 27, 2005
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Petition for review denied, and cross-application for enforcement
granted by unpublished opinion. Judge Shedd wrote the opinion, in
which Judge Williams and Judge Motz joined.
ARGUED: Charles F. Donnelly, DONNELLY & CARBONE, P.L.L.C.,
Charleston, West Virginia, for Mid-Atlantic Regional Council of
Carpenters, United Brotherhood of Carpenters and Joiners of
America. Fred B. Jacob, Supervisory Attorney, NATIONAL LABOR
RELATIONS BOARD, Appellate Court Branch, Office of the General
Counsel, Washington, D.C., for the Board. Frederick Fairfax
Holroyd, II, HOLROYD & YOST, Charleston, West Virginia, for High
Point Construction Group, L.L.C. ON BRIEF: Arthur F. Rosenfeld,
General Counsel, John E. Higgins, Jr., Deputy General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, Kira Dellinger Vol, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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SHEDD, Circuit Judge:
The Mid-Atlantic Regional Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America (the “Union”)
petitions for review of an order issued by the National Labor
Relations Board (the “Board”). The Union seeks to modify the
Board’s order so that the employer, High Point Construction Group,
LLC (“High Point”), is required to bargain with the Union. The
Board cross-applies, seeking enforcement of its order finding that
High Point violated § 8(a)(1), 29 U.S.C. § 158(a)(1), of the
National Labor Relations Act (the “Act”), but not imposing a
bargaining order pursuant to NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). Because the Board did not abuse its discretion in
fashioning a remedy, we grant enforcement of the Board’s order and
deny the Union’s petition for review.*
I.
High Point is a limited liability company owned and operated
by Tim Shaw, Tim Critchfield, and Chris Critchfield, all of whom
are member-managers. Certain High Point employees, dissatisfied
with how they were being treated by their employer, met with a
director of the Union about securing its representation. These
employees solicited the support of their fellow employees, and
*
To the extent that High Point argues that the Board’s order
should not be enforced because the company has “fully complied”
with the order, we find this argument unpersuasive.
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sometime thereafter a majority of the employees at High Point
signed authorization cards requesting Union representation. The
Union sent a request for recognition to High Point via facsimile
and mail, but the company did not respond. Ultimately, a Union
official spoke with Chris Critchfield, who acknowledged receipt of
the Union’s request, but declined recognition. The Union filed a
petition for representation with the Board’s regional office later
that day.
The Union called a meeting at the home of employee Randall
Burke, and several employees gathered there. Shaw arrived at the
meeting accompanied by his brothers Tom and Terry, as well as two
friends Bill Clevenger and Chris Chapman. Each of the men was
described as large, and Tom was drinking beer. Shaw asked the
employees why he had not been invited to the meeting, and the
employees did not answer. Burke’s wife told the men that no
drinking was allowed on her property and asked that they put away
the beer or leave. When Tom ignored her, she repeated her demand.
Tom, becoming irate, began to yell profanities at the employees
regarding their relationship with the Union. The five men then
drove away.
The Union representative at the meeting, having been advised
that Shaw sometimes carried a gun, called the state police. State
Trooper John Smith responded to the call. While Trooper Smith was
completing an incident report, one of the employees at the meeting
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spotted Shaw’s truck pass by Burke’s house. Trooper Smith
immediately pursued the truck and stopped it approximately one mile
from Burke’s house. When Trooper Smith questioned the truck’s
occupants, Shaw responded with a profane tirade about how the Union
was trying to destroy his company.
In addition to surveilling and intimidating employees at the
meeting, the management of High Point threatened employees that it
would close down the plant and file for bankruptcy. Also, on
certain occasions, Shaw interrogated one employee about his
involvement with the Union. Further, while at a job site, Tim
Critchfield threatened High Point employees with a lack of upcoming
work if they chose the Union to represent them.
After a hearing before an Administrative Law Judge (ALJ), the
ALJ found that High Point committed several labor violations.
Among the remedies that the ALJ recommended was a Gissel order,
mandating that High Point bargain with the Union even though the
Union had not yet prevailed in an election by employees. See
Gissel, 395 U.S. at 614-615. On review, although the Board upheld
most of the ALJ’s findings relating to liability, it fashioned a
less severe remedy. Rather than require High Point to bargain with
the Union, the Board enjoined High Point not only from recommitting
the specific violations found, but also from violating the Act “in
any other manner.” J.A. 139. Further, the Board required a High
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Point manager to read aloud the Board’s notice to employees at its
facility. J.A. 139.
II.
In its petition for review of the Board’s order, the Union
argues solely that the Board erred in refusing to issue a Gissel
bargaining order. Id. We review the Board’s choice of remedy for
an abuse of discretion. NLRB v. Williams Enters., Inc., 50 F.3d
1280, 1289 (4th Cir. 1995). The Board has broad discretion to
choose a remedy, and we “must enforce its choice unless it can be
shown that the order is a patent attempt to achieve ends other than
those which can fairly be said to effectuate the policies of the
[NLRA].” Id. (internal quotations omitted). Because the Union has
made no showing that the Board’s remedy was arbitrary, capricious,
or manifestly contrary to the statute, we cannot say that the Board
abused its discretion. See Coronet Foods, Inc. v. NLRB, 158 F.3d
782, 788 (4th Cir. 1998).
The preferred method for employees to select a bargaining
representative is through secret-ballot elections. Gissel, 395
U.S. at 602; see also Overnite Transp. Co. v. NLRB, 280 F.3d 417,
435-36 (4th Cir. 2002) (en banc) (stating that “it is the strong
preference of our national labor policy not to impose collective
bargaining representatives on employees except when they have . .
. elected to be so represented”). However, where the “coercive
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effects” of unfair labor practices would prevent a “fair and
reliable election,” Gissel, 395 U.S. at 614, the court may impose
forced bargaining pursuant to Gissel without such an election.
Overnite, 280 F.3d at 436. Because “the extraordinary and drastic
remedy of forced bargaining pursuant to [Gissel] is reserved for
only the most unusual cases[,] Gissel orders are available only
when traditional remedies are insufficient to make possible a fair
and reliable election.” Id. (internal quotations and citations
omitted). Further, we require specific, detailed findings to
impose such orders. Id.The Board found that “under the circumstances presented here
. . . the imposition of special remedies should serve to cleanse
the atmosphere of the effects of [High Point’s] unlawful conduct,
and that a bargaining order is therefore unnecessary.” J.A. 139.
Although it determined that a Gissel order was not warranted, the
Board issued a broad cease-and-desist order and required a
management official to “read aloud to employees the notice” that
would have otherwise merely been posted. J.A. 139. Having a
manager read aloud the notice, the Board reasoned, is “an effective
but moderate way to let in a warming wind of information, and more
important, reassurance.” J.A. 139 (internal quotations omitted).
Further, the cease-and-desist order prohibited High Point not only
from repeating its past violations as in customary orders, but also
from violating the Act in “any other manner.” J.A. 139.
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The Board’s decision that “special remedies,” J.A. 139, less
severe than a Gissel order could facilitate a “fair and reliable
election,” see Gissel, 395 U.S. at 614, is not arbitrary,
capricious, or manifestly contrary to the statute. The Board
determined that an intermediate remedy was appropriate and
fashioned such a remedy accordingly. Because of the extraordinary
nature of Gissel orders, the Board acted within its discretion in
upholding the strong preference for secret-ballot elections over
forced bargaining.
III.
The Board did not abuse its discretion in refusing to issue a
Gissel bargaining order. Accordingly, we deny the Union’s petition
for review and grant enforcement of the Board’s order.
PETITION FOR REVIEW DENIED, AND
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
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