United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2000 Decided April 17,
2001
No. 00-1076
Garvey Marine, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
International Longshoremen's Association,
Local 2038,
Intervenor
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Kenneth R. Dolin argued the cause for petitioner.
With
him on the briefs was Scott V. Rozmus.
Julie B. Broido, Supervisory Attorney, National
Labor
Relations Board, argued the cause for respondent.
With her
on the brief were Leonard R. Page, General
Counsel, and
Aileen A. Armstrong, Deputy Associate General
Counsel.
Charles P. Donnelly, Supervisory Attorney,
entered an ap-
pearance.
James B. Coppess argued the cause for intervenor.
With
him on the brief was Craig Becker.
Before: Ginsburg, Randolph and Rogers, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
Ginsburg.
Opinion concurring in part and dissenting
in part filed by
Circuit Judge Randolph.
Ginsburg, Circuit Judge: The International
Longshore-
man's Association, Local 2038, AFL-CIO sought
to represent
deckhands on one of several fleets of boats
belonging to
Garvey Marine, Inc., a company that provides
towing and
related services. The Union, after losing
a representation
election, filed a complaint with the National
Labor Relations
Board alleging that Garvey had engaged in
numerous unfair
labor practices (ULPs), in violation of ss
8(a)(1), (3), and (5)
of the National Labor Relations Act, 29 U.S.C.
ss 158(a)(1),
(3) & (5). The Board held that Garvey
had committed most
of the alleged ULPs, and ordered the Company
not only to
take various steps to remedy those violations
but also to
bargain with the Union. See Garvey Marine,
Inc. et al., 328
NLRB No. 147, slip op. at 7-8 (1999) (hereinafter
Decision).
Garvey petitions for review of the Board's
order, the Board
cross-applies for enforcement of its order,
and the Union
intervenes on behalf of the Board. Because
the agency's
findings are supported by substantial evidence
and its order
is reasonable, we deny Garvey's petition
and grant the
Board's application for enforcement.
I. Background
Garvey provides "barge towing, fleeting, switching
and
related harbor services for barge companies
and a variety of
other commercial entities" from docks in
five Illinois towns.
Decision at 12. This appeal involves only
Garvey's facility in
Lemont, Illinois, which is managed by its
vice president, Todd
Hudson. Each Garvey boat is staffed by a
crew of deckhands
supervised by two or more pilots, one of
whom serves as
captain. A dispatcher, with two assistants,
oversees the
movement of the boats and assigns pilots
and deckhands to
crews.
In early 1995 the Union filed with the Board
a petition to
represent the Lemont deckhands and pilots.
After Garvey
presented evidence that the pilots were supervisors,
the
Union agreed to exclude them from the bargaining
unit. A
representation election was held in March,
and the Union lost
by a narrow margin. Id. at 10.
The Union then filed an unfair labor practice
charge
against Garvey alleging that Garvey's agents
had made nu-
merous illegal threats, promises, and predictions
during the
election campaign; illegally implemented
a new disciplinary
system in order to discourage union support;
and warned and
dismissed employees for supporting the Union.
See 29
U.S.C. ss 158(a)(1), (3). The Union asked
the Board to issue
a so-called Gissel order directing Garvey
to bargain with the
Union notwithstanding the Union's having
lost the election.
See NLRB v. Gissel Packing Co., Inc., 395
U.S. 575, 614
(1969) (holding that Board may order employer
to bargain
with union that once had majority support
if "the possibility
of erasing the effects of past practices
and of ensuring a fair
[new] election ... by the use of traditional
remedies ... is
slight").
After a hearing, an Administrative Law Judge
held that
Garvey had committed many, though not all,
of the alleged
ULPs. The ALJ held that pilots, whom he determined
to be
"supervisors" under the Act, Decision at
27, had made a large
number of "patently coercive" promises and
threats to pro-
union employees. Id. at 28. Weighing the
credibility of
sometimes conflicting testimony, the ALJ
found that several
pilots had told deckhands that if the Union
lost the election
then the deckhands would get raises, overtime
pay, and
improved insurance benefits, but if the Union
won then
Garvey would refuse to negotiate with it,
there would be wage
reductions and a strike, employees would be
required to pay
for their equipment, and Garvey might close
the Lemont
facility. The ALJ also credited the testimony
of some deck-
hands that pilots had implied there would
be reprisals against
pro-union deckhands, one of whom was threatened
with a
"shipboard accident." Id. at 19-22.
The ALJ found further that during the election
campaign
Garvey had substituted a formal, written,
and progressive
system of disciplinary sanctions for its
earlier "loose, subjec-
tive, erratic practice of selective verbal
warnings." Finding
that the change had been made "solely in
reaction to the
filing of a representation petition," the
ALJ held that institu-
tion of the new policy was an ULP. Id. at
29.
Finally, the ALJ determined that Garvey had
illegally
dismissed two deckhands, Karl Senff and Steven
Bradley,
because of their union activities. That Senff
and Bradley
actively supported the Union is undisputed.
Senff was dis-
missed in April 1995 after having been given
repeated warn-
ings -- which he openly and purposely flouted
-- not to be
late for his shifts. Bradley was dismissed
in May when,
having received a job assignment that he
viewed as danger-
ous, he threatened to damage Company property
and to fake
a workplace accident. Despite these two employees'
admit-
tedly serious misconduct, the ALJ held their
dismissals were
unlawful. He offered several reasons, notably
Garvey's histo-
ry of less harshly disciplining employees
guilty of similar and
more serious infractions, warnings pilots
had given Senff that
his union advocacy made him a target, and
the dispatcher's
statement to Bradley that he was suspended
because of his
union activity. Id. at 30.
The ALJ denied the Union's request for a bargaining
order. He held that traditional remedies
-- ordering Garvey
to avoid future infractions, to retract its
new disciplinary code
and the warnings issued thereunder, and to
offer backpay and
reinstatement to Bradley and Senff -- would
be sufficient to
ensure a free and fair rerun election. Although
he did not
think a bargaining order was warranted, neither
did the ALJ
accept the Company's argument that he should
consider
turnover in Garvey's management. Id. at 31.
The ALJ did
observe, however, that Garvey's most egregious
violations
were all committed by pilots -- Garvey's
lowest level of
supervisors -- and that, of the deckhands
who were illegally
threatened or dismissed, most had themselves
engaged in
significant misconduct. He also emphasized
that most of the
pilots' threats and promises had been made
to only a handful
of pro-union deckhands who, by all accounts,
continued none-
theless to advocate election of the Union.
Id. at 31-32.
A three-member panel of the Board unanimously
affirmed
the ALJ's determinations regarding Garvey's
ULPs. The
majority went on to issue a bargaining order
in light of what
it called Garvey's "egregious[ ]" pattern
of violations. Id. at
3. The majority pointed out that the ALJ
had found more
than 30 violations, among them threats of
physical violence,
and that Garvey had persisted in violating
the Act even after
the election was held. See id. at 4. That
the threats had
been made by pilots, who were the deckhands'
immediate
supervisors, seemed to the majority to create
"precisely the
legacy of coercion that endures in the workplace
and that the
Supreme Court addressed in Gissel." Id. at
5. Member
Hurtgen dissented with respect to the bargaining
order for
essentially the reasons stated by the ALJ
and because he
regarded turnover as "a relevant factor in
determining
whether a fair election can be held." Id.
at 9.
Garvey moved to reopen the record in order
to introduce
additional evidence of turnover among its
employees and
managers, and asked the Board to reconsider
its orders on
the basis of this evidence. The Board denied
the motion,
Member Hurtgen again dissenting, and Garvey
petitioned
this court for review of the Board's orders.
II. Analysis
With regard to the ULP charges, Garvey argues
that
because it had expressly instructed its pilots
not to make
threats or promises during the representation
election cam-
paign, the Board erred in attributing to
management such
statements as were made, and that the dismissals
of Senff
and Bradley were based entirely upon their
own misconduct
and not at all upon their union activity.
With regard to the
remedy, Garvey maintains that the Board should
not have
issued a bargaining order because any ULPs
it committed
were not so "extensive[ ]" and "pervasive"
as to make "slight"
"the possibility of erasing the[ir] effects"
by means of a new
representation election. Gissel, 395 U.S.
at 614.
A. Pilots as Agents of Management
According to Garvey, the deckhands could not
reasonably
have believed that the pilots who made promises
and threats
to union adherents were acting on the Company's
behalf.
Garvey points out that its vice president,
Hudson, made
repeated written and oral statements disclaiming
any prom-
ises or threats and assuring deckhands there
would be no
reprisals taken for their union activity.
Garvey also notes
that it conducted formal training for its
pilots during which it
specifically forbade them to issue threats
or promises. In
view of all this, Garvey says, the deckhands
surely would have
discounted any offending statement made by
an errant pilot.
The Board took the opposite position, to which
we must
defer if it is supported by substantial evidence:
[T]he Board's determination of whether a particular
ac-
tor is properly considered an agent or was
acting with
apparent authority is granted only limited
deference ....
However, the standard of review is not de
novo ....
[T]he existence of an agency relationship
is a factual
matter ... which cannot be disturbed if supported
by
"substantial evidence on the record considered
as a
whole."
Overnite Transp. Co. v. NLRB, 140 F.3d 259,
265 (D.C. Cir.
1998). The Board's determination finds such
support. Gar-
vey required its pilots to sign a policy
that they would
support the Company in the Union campaign
-- and the
deckhands knew it. Decision at 13, 27-28.
A reasonable
deckhand, therefore, would not necessarily
have assumed that
a pilot's statement in contravention of Garvey's
official poli-
cies was unauthorized; he would as likely
have concluded that
Garvey's public statements were primarily
for show while the
pilot's private warnings reflected management's
actual posi-
tion. Similarly, the Board could reasonably
determine that
the close working relationship between the
pilots and the
deckhands they supervised enhanced rather
than undermined
the credibility of the pilots' statements.
Because the Board's
determination that Garvey's pilots were,
and were viewed as,
the Company's agents is based upon substantial
evidence,
those findings merit our deference.
B. The Dismissals of Senff and Bradley
Garvey suspended and then dismissed Senff
and Bradley
pursuant to its newly adopted disciplinary
code. See Part I
above at 3. It is unclear, however, whether
the Board
believes (as suggested in its order) that
the dismissals of
Senff and Bradley were perforce illegal because
they were
made "pursuant to the ... unlawfully implemented
progres-
sive disciplinary system," see Decision at
2, or (as the Board
suggests in its brief) merely that the unlawfulness
of the
policy "strongly support[s]" a further finding
that the dis-
missals were themselves ULPs. Because the
former claim is
doubtful, see Performance Friction Corp.
v. NLRB, 117 F.3d
763, 768 (4th Cir. 1997), we follow the General
Counsel in
attributing the latter view to the Board.
For the Board to hold that the dismissals
of Senff and
Bradley were unfair labor practices, the
General Counsel
must first have made out a prima facie case
that their union
activities were "a substantial or motivating
factor" in their
dismissals. Wright Line, 251 NLRB 1083, 1087
(1980), ap-
proved by NLRB v. Transp. Mgmt. Co., 462
U.S. 393, 401
(1983), overruled in other respects, Director,
Office of Work-
ers' Compensation Programs v. Greenwich Collieries,
512
U.S. 267, 278 (1994). The burden then shifts
to Garvey to
show that it would have dismissed the two
"regardless of [its]
forbidden motivation." Id. In our view the
Board correctly
determined that the General Counsel made
out a prima facie
case regarding both Senff and Bradley, and
that Garvey
failed to rebut either one.
1. Dismissal of Senff
Garvey contends that it dismissed Senff only
because of his
repeated and deliberate lateness and not
because of his
activity on behalf of the Union. Not only
was Senff consis-
tently and habitually tardy, he informed
supervisors that he
felt "entitled" to come in late whenever
he had been relieved
late at the end of his previous shift. Decision
at 23. On
several occasions boats were delayed beyond
their scheduled
departure times waiting for Senff; sometimes
they left with-
out him. After ignoring numerous warnings
Senff was dis-
charged for tardiness some time in 1994.
He was later
rehired, however, in "late 1994 or early
1995." Id.
Although the Board found Senff's intentional
and repeated
tardiness "provocative misconduct" worthy
of discipline, it
nevertheless held that his second dismissal,
in April 1995, was
due not to his lateness but to his activity
on behalf of the
Union. Id. at 2, 30. The Board based that
conclusion upon
several facts: Garvey was aware of Senff's
union activities; it
repeatedly threatened advocates of the Union,
and Senff in
particular, with discharge; it dismissed
Senff for the second
and final time only a short while after the
union election; and
it had had a "tradition of leniency prior
to the organizing
effort" that contrasted sharply with "the
progressive written
[disciplinary] system unlawfully imposed
during the cam-
paign." Id. at 2.
Garvey's awareness of Senff's union activities
and the tim-
ing of his dismissal are circumstantial evidence
that his
dismissal was motivated by impermissible
animus. See, e.g.,
Power Inc. v. NLRB, 40 F.3d 409, 418 (D.C.
Cir. 1994)
("[B]oth direct and circumstantial evidence"
of such factors
may be used to establish employer's unlawful
motive). The
prima facie case is clearly established,
however, by the other
factors upon which the Board relied: Garvey
had rehired
Senff before the union campaign notwithstanding
his record
of tardiness, and Garvey's agents had threatened
Senff's job
on several occasions expressly because of
his union sympa-
thies.
Garvey objects to the Board's reliance upon
the ALJ's
having credited Senff's testimony that several
pilots had
repeatedly threatened his job even as the
ALJ rejected other
portions of Senff's testimony as incredible.
Compare Deci-
sion at 20, 21 (crediting Senff's testimony
as to threats), with
id. at 25 (rejecting Senff's testimony as
to his own tardiness).
The trier of fact is surely entitled, however,
to credit some
but not all of a witness's testimony, particularly
when he must
resolve conflicts among witnesses none of
whom seems entire-
ly reliable.
The General Counsel having made his prima
facie case, the
burden shifted to Garvey to show that it
would have dis-
missed Senff even had he not favored the
Union. The Board
reasonably held that Garvey did not carry
that burden.
Decision at 3. Garvey suggests that its dismissal
of Senff for
tardiness in 1994, before the union campaign
began, demon-
strates that it would have dismissed him
again in 1995
regardless whether he had engaged in union
activity. This
argument fails to account, however, for Garvey's
decision to
rehire Senff after having dismissed him for
tardiness the first
time. Until Senff began to campaign for the
Union, Garvey
had apparently concluded that Senff's value
as an employee
outweighed the cost of keeping him, including
his seemingly
incorrigible tardiness. Therefore, Garvey
must persuasively
explain what change of circumstances -- other
than his union
activity -- induced it to change its position
and again fire
Senff.* Its conclusory protestation that
Hudson had finally
"tired" of Senff's conduct is unpersuasive.
Id. at 30.
__________
* Our dissenting colleague speculates that
Garvey may have fired
Senff the second time because the cumulative
costs of his brazen
tardiness, assessed in an everchanging environment,
simply be-
came too much for Garvey to bear. Dissent
at 2-3. A prima
facie case that Senff was fired for his union
advocacy having been
made, however -- a case supported not only
by his 1994 dismissal
but also by explicit warnings from Garvey's
agents that Senff's
job "was in jeopardy because of his union
activities," Decision at
30 -- it is Garvey, and not the Board, that
bears the burden of
demonstrating that the scenario in the dissent
is indeed what
occurred. See Transp. Mgmt., 462 U.S. at
401-02. Contrary to
2. Dismissal of Bradley
The Board's decision regarding Garvey's dismissal
of Brad-
ley parallels its decision regarding Senff,
and we uphold it for
similar reasons. Like Senff's tardiness,
the Board deemed
Bradley's threat to fake a workplace injury
"provocative
misconduct" for which discipline was reasonable.
Id. at 30.
The Board was nevertheless justified in concluding
that Brad-
ley's dismissal was motivated in part by
his union advocacy:
Garvey's dispatcher told him so. Id. at 3.
The Board also
relied upon Garvey's elaborate choreography
of Bradley's
initial suspension, which preceded his formal
dismissal by a
few days: Garvey sent Bradley's boat back
to the dock
midshift, where Bradley -- observed by the
crews of three
boats that had been held at the dock, presumably
so they
could witness the event -- was met by a sheriff's
officer who
escorted him off the premises. This procedure
suggests that
Garvey at the least wanted to make an example
of Bradley; it
had staged no such spectacle when, on an
earlier occasion, it
delayed until shift's end the dismissal of
a deckhand who had
threatened a pilot with a knife. See id.
at 3, 5. Finally, the
Board concurred in the ALJ's observation
that there was
reason to believe that Bradley, who was known
to have "a
tendency to rash, ill-considered remarks,"
was only joking
and was so understood by those present. Id.
at 3, 30.
These circumstances are adequate to make out
a prima
facie case that Bradley's dismissal was motivated
in part by
his union activity. See, e.g., Reno Hilton
Resorts v. NLRB,
196 F.3d 1275, 1282 (D.C. Cir. 1999) (upholding
Board's
determination that a prima facie case is
made out if "there is
substantial evidence supporting the [claim]
that anti-union
animus was a motivating factor in the employer's
decision").
Garvey is correspondingly unable to demonstrate
that it
__________
the dissent (at 3), we do not suggest that
an employer must
"tolerate misconduct so long as [a] problem
employee maintains
the same level of insubordination"; but an
employer does not
meet its burden under Wright Line when, after
a prima facie
demonstration of antiunion animus, it does
no more than contend,
without support, that it just couldn't take
it anymore.
would have fired Bradley even if he had not
engaged in such
activity. On this record, the dispatcher's
statement to the
contrary and the little mid-shift melodrama
of the suspension
are insurmountable ramparts protecting the
Board's position
from successful attack.
C. The Bargaining Order
The Board may order an employer to bargain
with a union
that has lost a representation election because
of the employ-
er's ULPs if, as here, the union at one time
enjoyed majority
support in the bargaining unit, see Gissel,
395 U.S. at 610.
Because a Gissel order is, however, an "extreme
remedy,"
Vincent Indus. Plastics, Inc. v. NLRB, 209
F.3d 727, 738
(D.C. Cir. 2000), we scrutinize with great
care the Board's
decision to issue one. The Board must show
that the employ-
er's ULPs were "serious," Skyline Distrib.
v. NLRB, 99 F.3d
403, 410 (D.C. Cir. 1996), and the Board
must have
explicitly balance[d] three considerations:
(1) the em-
ployees' s 7 rights [to a representative
of their own
choosing]; (2) whether other purposes of
the Act over-
ride the rights of employees to choose their
bargaining
representatives; and (3) whether alternative
remedies
are adequate to remedy the violations of
the Act.
Vincent, 209 F.3d at 734. The Board must also
have "deter-
mine[d] the appropriateness of a Gissel bargaining
order in
light of the circumstances existing at the
time it is entered."
Flamingo Hilton-Laughlin v. NLRB, 148 F.3d
1166, 1171
(D.C. Cir. 1998). If the Board has done all
this, then the
court will uphold the Board's decision provided
it is reason-
able. See Traction Wholesale Ctr. Co., Inc.
v. NLRB, 216
F.3d 92, 104 (D.C. Cir. 2000).
In this case the Board did all that we require.
It conduct-
ed a detailed analysis of the proven ULPs,
and reasonably
concluded that the resulting "legacy of coercion"
would pre-
vent employees from freely exercising their
right to choose
their own representative if only the usual
remedies, including
a new election, were ordered. Decision at
5.
Garvey objects to several features of the
Board's analysis.
First, the Company points out that the threats
cited by the
Board in support of its order were made during
one-on-one
encounters between pilots and a relatively
small number of
deckhands. Moreover, those most seriously
threatened --
Senff, Bradley, and another -- were undeterred
in their union
advocacy and, according to Garvey, there
was no evidence
that the many deckhands who were not personally
threatened
ever learned of the threats. Garvey also
marshals the ALJ's
point that the threats were less serious
because they came
only from pilots and were at odds with the
official statements
made by Vice President Hudson.
These arguments do not show that the Board
acted unrea-
sonably. The Board acknowledged that relatively
few deck-
hands were threatened in person, but it balanced
that fact
against the small size of the unit, which
had only 22 voters,
see Decision at 10; the frequency of the
threats, of which
there were more than 30 during the two-month
union cam-
paign; and the nature of those threats, several
of which
menaced union adherents with physical harm.
See id. at 4.
The Board's reasonable assumption that news
of the ULPs --
both the threats and the discharges -- would
be disseminated
among the deckhands is buttressed by Garvey's
very public
staging of Bradley's suspension.** The Board
reasonably
concluded that the pattern of ULPs created
a "legacy of
coercion" that was likely to have been disseminated
and to
have poisoned the atmosphere in which any
new election
would take place. Id. at 5.
In its reply brief, Garvey argues that the
Board must
accept the ALJ's finding that word of the
ULPs had not been
disseminated among Garvey's workforce because
the ALJ
based his determination upon his assessment
of the credibility
of witnesses, whose testimony the Board could
not directly
__________
** The suspension is relevant to the Gissel
order although it
postdated the election because the Union
had by then filed its
first complaint alleging that Garvey's misconduct
had tainted the
election, and thereby raised the possibility
that there would be a
rerun election. See Decision at 5.
evaluate. The premise of Garvey's argument
is false, howev-
er; the ALJ never found, based upon testimony
before him,
that in fact news of the ULPs had not gotten
around.
Rather, he opined that the threatened employees'
persistence
in union activities "would certainly tend
to diminish the
coercion's impact" even assuming it was disseminated
to
deckhands on other boats. Id. at 31. The
Board, by con-
trast, believed that Bradley's suspension
alone, having been
"carried out in a manner that would ensure
a dramatic and
lasting impression on other employees ...
obviates any argu-
ment that other employees would not have
been aware of the
unlawful conduct and its import." Id. at
5. Thus, we see, the
Board did not reject the ALJ's factual findings;
it merely
gave less weight than had the ALJ to the
testimony of
various deckhands who said they had not heard
about the
ULPs.
The Board was also reasonable in hypothesizing,
contrary
to the ALJ, that a "rough and ready" threat
made by an
immediate supervisor "may be far more credible
and influen-
tial so far as the ordinary worker is concerned
than a
necessarily more formal, structured, and
purposeful state-
ment of a high-ranking executive," id. at
4 & n.11 (quoting
Teamsters v. NLRB, 435 F.2d 416, 417 (D.C.
Cir. 1970)). It
would not be unreasonable to believe that
a direct supervisor
can coerce a line employee at least as effectively
as an
executive can even had that view not been
explicitly endorsed
by this court in the case just quoted.
Finally, Garvey contends that changes in its
ownership and
turnover in its workforce make a bargaining
order unneces-
sary. Between the conclusion of the election
campaign and
the issuance of the order Garvey came under
new ownership,
all but four of the deckhands, three of the
six pilots who
committed ULPs, and the lead dispatcher at
Lemont left the
Company, and a fourth pilot left the Lemont
facility. With
most of both the perpetrators and the direct
victims of the
ULPs gone, suggests Garvey, traditional remedies
should
suffice to protect the current employees'
s 7 rights. Garvey
also notes that only a rerun election would
allow its many new
deckhands a chance to vote for or against
the Union.
Notwithstanding the Board's assertion that
it "traditionally
does not consider turnover among bargaining
unit employees
in determining whether a bargaining order
is appropriate,"
lest employers in violation of the Act gain
an incentive to stall
enforcement proceedings, Decision at 5, this
court requires
it to consider turnover "unless it finds
that the employer's
practices are particularly flagrant, ...
pervasive, and likely to
persist despite turnover." Avecor, Inc. v.
NLRB, 931 F.2d
924, 937 (D.C. Cir. 1991). That is precisely
the finding that
the Board made in this case:
[W]e have not in this case refused to consider
the
Respondent's representations regarding turnover.
Rath-
er, we find that, even when those representations
are
considered, the circumstances of this case
do not warrant
a conclusion that a fair second election
is possible.
Decision at 6 n.14.
As we have seen, the Board reasonably viewed
Garvey's
pattern of ULPs as egregious and pervasive.
Such violations
would likely, as the Board said (quoting
Bandag, Inc. v.
NLRB, 583 F.2d 765, 772 (5th Cir. 1978)),
"live on in the lore
of the shop," affecting the ability of new
hires and veteran
employees alike to vote their true preferences
in a new
election. Id. at 6. A change in the ownership
of the Compa-
ny is insufficient to reverse this effect;
indeed, Hudson, who
was in charge of the Lemont facility when
the ULPs were
committed, continues in the same capacity
under the new
ownership. Nor can Garvey repudiate its lower-level
agents
on the ground that its association with the
ULPs committed
by its pilots dissipated with their departure.
Having enlisted
the pilots in aid of the Company's anti-union
campaign,
Garvey cannot now contend that deckhands
-- old or new --
will understand the threats and promises
that the pilots made
in the course of that campaign to have been
rogue acts
unrepresentative of management's position.
See Part II.A
above. For all these reasons, we hold the
Board's bargaining
order and its denial of Garvey's motions
to reopen the record
and for reconsideration are reasonable.
III. Conclusion
The Board's factual findings in this case
are supported by
substantial evidence, its legal conclusions
are reasonable, and
its Gissel order meets the criteria prescribed
by this court.
We therefore deny Garvey's petition for review
and grant the
Board's application for enforcement.
So ordered.
Randolph, Circuit Judge, concurring in part
and dissent-
ing in part: I join all of the majority's
opinion except the
portions dealing with the termination of
Karl Senff and the
bargaining order. Senff kept showing up late
for work. His
lateness was intentional and he was unrepentant.
Given this
state of affairs, Garvey Marine did not commit
an unfair labor
practice in firing him.
Senff "admitted that from early in his employment
at
Lemont, he had a history of high absenteeism
and tardiness
for which he had been 'hollered at a lot'
... [and verbally]
warned ...." Decision at 13-14, 23. He conceded,
and two
other witnesses testified, that his punctuality
problem exceed-
ed that of any other deckhand. See id. at
23. Senff was late
for three-fifths of his shifts by an average
of 20 minutes. See
id. at 14. He brazenly claimed he was entitled
to arrive late
as self-compensation for working late on
previous shifts. See
Decision at 23; maj. op. at 8.
Senff's self-compensation program disrupted
the company's
operations, causing boats to delay their
scheduled departure
times and occasionally to leave without him.
See Decision at
23; maj. op. at 8. He persisted in this course
of conduct until
the date of his discharge, despite many verbal
warnings and
three written warnings explicitly threatening
termination.
No precedent in labor law requires a company
to endure
such blatant disdain for its rules. The ALJ
and the Board
both acknowledged that an employer could
reasonably disci-
pline an employee for such conduct -- conduct
the ALJ
characterized as "headed for self-destruction."
See Decision
at 2, 29. The ALJ added: "Clearly, an employer,
even a
tolerant one, is not expected to forever
suffer the provocative
misconduct of employees who had once engaged
in protected
activities." Decision at 30. Nonetheless,
the Board, sus-
tained by my colleagues, found insufficient
evidence that the
company would have terminated Senff regardless
of his union
activities. See Decision at 2-3, 30; maj.
op. at 9.
Even with its informal, "lenient" disciplinary
system, Gar-
vey Marine never countenanced the sort of
conduct for which
Senff was discharged. As the majority acknowledges,
the
company had previously terminated Senff for
the same con-
duct. See maj. op. at 8. It later rehired
him, possibly
because it faced a shortage of deckhands.
See Decision at 1-
2. In addition, as Senff himself testified,
the company had
discharged other deckhands for attendance
problems like his.
See Decision at 13.
An employer, even a lenient one who prides
itself on
maintaining an informal workplace, is not
required by the
National Labor Relations Act to tolerate
what is universally
regarded as inappropriate workplace conduct
from employees
who engage in union activities. See 29 U.S.C.
s 160(c). I
agree with the Seventh Circuit that an "employer
who has
tolerated bad behavior in the past is not
forced to continue to
do so, let alone required to tolerate increasingly
bad behav-
ior." Vulcan Basement Waterproofing of Illinois,
Inc. v.
NLRB, 219 F.3d 677, 689 (7th Cir. 2000).
Tardiness and
absenteeism are objectively bad conduct:
among an employ-
ee's most basic -- and least difficult to
satisfy -- obligations
is showing up for work at the appointed hour.
The Board's
and the majority's contrary view "rests at
bottom on the
apparent notion that blatant misconduct once
tolerated at all
must be tolerated forever. However ... there
must be room
in the law for a right of an employer somewhere,
sometime, at
some stage, to free itself of continuing,
unproductive, internal,
and improper [conduct]." NLRB v. Eldorado
Mfg. Corp., 660
F.2d 1207, 1214 (7th Cir. 1981); see also
Washington Materi-
als, Inc. v. NLRB, 803 F.2d 1333, 1340-41
(4th Cir. 1986)
(same). As the Seventh Circuit concluded
in Eldorado, "to
ascribe any motive to [this] discharge[ ]
other than a long
overdue intolerance of [Senff's] offensive
and disruptive acts
would be to indulge in unwarranted speculation."
660 F.2d at
1214.
The majority's analysis violates the time-honored
principle
that enough is enough. Yes, the company rehired
Senff. But
to suppose that "Senff's value as an employee
outweighed the
cost of keeping him" until he engaged in
union activities is to
engage in pure speculation. Maj. op. at 9.
The cost-benefit
calculus is not so simple. The costs of Senff's
behavior must
reflect some notion of cumulation, some recognition
that the
twenty-fifth instance of tardiness is worse
than the first or
the fifth. The marginal aggravation of each
instance is not
identical to the one before it. At some point,
the marginal
cost becomes too much, especially in view
of Senff's avowed
intention to impose those costs in perpetuity.
Likewise, the benefits of retaining a problem
employee are
not necessarily constant, but can vary according
to extrinsic
conditions unrelated to union activity. For
instance, Senff's
value to the company might temporarily increase
if there
were a transitory shortage of good deckhands,
or if the
company's stock of experienced deckhands
declined because
of workforce changes. It is not surprising
that a company
might rehire a problem employee: Garvey Marine
may have
needed an experienced deckhand and rehired
Senff in the
hope he had learned his lesson.
The majority's insistence that Garvey Marine
"persuasively
explain what change of circumstances -- other
than his union
activity -- induced it to change its position
and again fire
Senff" places too high a burden on employers.
See maj. op.
at 9. A reasonable circumstance for termination
is the accu-
mulated irritation of Senff's relentless,
in-your-face tardiness.
The majority's "changed circumstances" rule
makes little
sense in a case like this where "any reasonable
employer
would find ... [the employee's conduct] objectionable
and ...
be expected to react with some form of discipline."
Decision
at 29. Are we to suppose that the employer
must tolerate
misconduct so long as the problem employee
maintains the
same level of insubordination? That, I am
afraid, is where
the majority's theory leads.
I am also unconvinced that a bargaining order
is warrant-
ed, especially once Senff's termination is
removed as a justifi-
cation. A bargaining order is an extreme
remedy. See
Flamingo Hilton-Laughlin v. NLRB, 148 F.3d
1166, 1170
(D.C. Cir. 1998); Skyline Distrib. v. NLRB,
99 F.3d 403, 410
(D.C. Cir. 1996); Avecor, Inc. v. NLRB, 931
F.2d 924, 938-39
(D.C. Cir. 1991). The unfair labor practices
here were not so
outrageous that an injunction and an assurance
against retri-
bution would not ensure a fair re-run election,
especially
given the substantial turnover among the
pilots (the perpetra-
tors of the ULPs) and the deckhands (the
victims). See maj.
op. at 13 (noting turnover). I am not persuaded
that specula-
tive arguments such as the "legacy of coercion"
will survive in
the "lore of the shop" sufficiently justify
the Board's order.
See Decision at 5-6. At the least, if the
Senff unfair labor
practice were not upheld, the Board ought
to reconsider the
scope of the relief. |