Be-Lo Stores v. National Labor Relations Board

126 F.3d 268

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 16, 1997
• Docket: Nos. 96-1575, 96-1657
• Status: Published

Opinions

Reversed in part, affirmed in part, and remanded by published opinion. Judge LUTTIG wrote the majority opinion, in which Judge HILTON joined. Judge ERVIN wrote a dissenting opinion.

OPINION

LUTTIG, Circuit Judge:

“[0]ur nation’s labor policies have never included a preference for imposing a collective bargaining representative upon those who have not affirmatively chosen that representative by election.” N.L.R.B. v. Apple Tree Chevrolet, Inc., 671 F.2d 838, 840 (4th Cir.1982) (Apple Tree Chevrolet II). Since “an election, not a bargaining order, remains the traditional, as well as the preferred, method for determining the bargaining agent for employees,” N.L.R.B. v. Appletree Chevrolet, Inc., 608 F.2d 988, 996 (4th Cir.1979) (Appletree Chevrolet I), the “extraordinary and drastic remedy” of forced bargaining pursuant to N.L.R.B. v. Gissel, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), is reserved for only the most “unusual cases,” N.L.R.B. v. J. Coty Messenger Serv., Inc., 763 F.2d 92, 99 (2nd Cir.1985). Because such an order is disfavored, we have admonished the National Labor Relations Board that it must undertake a comprehensive analysis for each of Gissel’s necessary predicate findings, and support its order with detailed record evidence. It is, in other words, “manifestly insufficient” for the Board to satisfy the Gissel predicates by “simply engaging in perfunctory or boiler-plate language, or using a litany, reciting conclusions by rote without factual explication.” Appletree Chevrolet I, 608 F.2d at 997 (internal quotation marks omitted). Notwithstanding our repeated warnings, and similar warnings from our sister circuits,- “even a cursory examination of the decisions applying Gissel ... reveals that the Board has declined repeatedly to assist the courts ... by revealing [its] reasons for issuing Gissel bargaining orders.” Red Oaks Nursing Home, Inc. v. N.L.R.B., 633 F.2d 503, 508 (7th Cir.1980) (citing, inter alia, Appletree Chevrolet I, 608 F.2d at 996).

Here, notwithstanding our repeated admonitions, the Board imposed a far-reaching mandatory bargaining order that would require the company to bargain with the United Food and Commercial Workers Union, although significant questions exist as to whether the Union ever achieved majority status among the company’s employees; some six years have elapsed since the company’s election victory; more than two-thirds of the company’s work force employed at the time of the company’s unfair labor practices are no longer even employed by the company; there were relatively few violations and they occurred in less than one-half of the company’s thirty stores; and no evidence whatsoever exists that a fair election could not be held today. Moreover, the Board imposed its mandatory bargaining order on the strength of little more than “perfunctory or boiler-plate language” lacking substantive “factual explication.” Appletree Chevrolet I, 608 F.2d at 997 (internal quotation marks omitted).

Because a mandatory bargaining order should not have issued under the facts of this case, and such an order would not have been sustainable on the basis of the kind of ipse dixit relied upon by the Board here in any event, we reverse the Board’s entry of the mandatory bargaining order. We also reverse, as unsupported by substantial evidence, the Board’s conclusions that Be-Lo violated the National Labor Relations Act, 29 U.S.C. § 151, et seq. (“the Act”) by (1) distributing a “pink slip” flyer, (2) denying Union picketers access to its property, and (3) dismissing or failing to recall five pro-union employees. We affirm, however, for reasons discussed, a number of the Board’s other findings with regard to individual personnel actions.

I.

In May 1990, intervenor United Food and Commercial Workers Union, Local 400 (the “Union”) began organizing at several of Be-Lo’s retail grocery stores. In February 1991, following a lengthy recruitment campaign, the Union demanded recognition, advising Be-Lo that a majority of the company’s employees had signed union authorization cards designating the Union as then-official bargaining representative. Be-Lo challenged the Union’s claim of majority and declined to recognize the Union, and an election to resolve the matter was scheduled for March 21, 1991.

During the weeks preceding the election, the company openly campaigned against unionization, holding meetings, circulating memoranda, showing videotapes, and sending out flyers, including a flyer in the form of a mock “pink slip” purportedly given to employees of unionized stores that had been forced to close following unionization. Be-Lo also took “employment actions” against a number of employees who favored unionization of the company.

The Union lost the March 21 election 377 to 220. The remaining 159 of the 756 total eligible voters either did not vote or had their nondeterminative ballots contested.

Following the election, the Union picketed several Be-Lo locations. Be-Lo responded by seeking five separate injunctions to exclude the picketers from its premises under the company’s no-solicitation policy. In all five cases, the courts of the Commonwealth of Virginia granted Be-Lo’s requested injunctions.

Following the filing of charges by the Union and the filing of complaints by the NLRB Regional Director against Be-Lo alleging violations of various provisions of the National Labor Relations Act, a hearing was held before an administrative law judge. The ALJ found that, overall, Be-Lo’s campaign was conducted in accordance with the Act. See J.A. Vol. I, at 360. The ALJ specifically rejected the NLRB General Counsel’s claims that Be-Lo’s pink slip flyer and other anti-union campaign messages violated section 8(a)(1), and that Be-Lo was discriminatorily enforcing its no-solieitation policy. The ALJ held, however, that a number of statements made to individual employees by certain of Be-Lo’s store managers violated section 8(a)(1), and that sixteen individual employment actions, of which thirteen were various forms of discharges, taken by Be-Lo during the election campaign violated section 8(a)(3). On the basis of these violations, the ALJ issued a Gissel mandatory bargaining order.

On appeal from the ALJ’s decision, the Board reversed two of Be-Lo’s employee-specific section 8(a)(3) discriminatory discharge violations and affirmed eleven others, and affirmed the ALJ’s findings of employee-specific section 8(a)(1) violations. The Board also held, however, contrary to the ALJ, that Be-Lo threatened its employees with job loss in violation of section 8(a)(1) by distributing the pink slip flyer and by denying Union picketers access to the sidewalks and parking lots at the specified Be-Lo Stores following the election. See J.A. Vol. I, at 341, 348-50. Based on these violations, the Board affirmed the ALJ’s mandatory bargaining order.

II.

“ ‘[A]n election, not a bargaining order, remains the traditional, as well as preferred, method’ for determining the employee’s bargaining agent.” N.L.R.B. v. So-Lo Foods, Inc., 985 F.2d 123, 126 (4th Cir.1992) (quoting Appletree Chevrolet I, 608 F.2d at 996). While we accord the Board respect as to its choice of remedies because of its presumed expertise, see So-Lo Foods, 985 F.2d at 126 (citing Gissel, 395 U.S. at 612 n. 32, 89 S.Ct. at 1939 n. 32), we “exercise less deference” and require scrupulous specificity from the Board when it issues mandatory bargaining orders on the authority of NLRB v. Gissel Packing. See N.L.R.B. v. Rexair, Inc., 646 F.2d 249, 250 (6th Cir.1981) (courts closely scrutinize the Board “when it has imposed the very strong remedy of issuing a bargaining order without holding a new election”). A Gissel order “is not a snake-oil cure for whatever ails the workplace; it is an extreme remedy that must be applied with commensurate care.” Skyline Distributors v. N.L.R.B., 99 F.3d 403, 410 (D.C.Cir.1996) (internal quotation marks omitted).

Gissel orders may enter in essentially two types of cases — so-called Category I cases, where “exceptional,” “outrageous,” and “pervasive” unfair labor practices have occurred and the coercive effects of such practices “cannot be eliminated by the application of traditional remedies,” Gissel, 395 U.S. at 613-14, 89 S.Ct. at 1940, and, in less extraordinary cases (Category II), where the Board has found“(l) that the Union once had a majority status, (2) that such status had been dissipated by pervasive misconduct on the part of the employer, (3) ‘that the possibility of erasing the effects of (these) past (pervasive) practices and ensuring a fair election ... is slight,’ and (4) ‘that employee sentiment ... would, on balance, be better protected by a bargaining order.’” Appletree Chevrolet I, 608 F.2d at 996 (quoting Gissel, 395 U.S. at 614, 89 S.Ct. at 1940).

Here, the Board did not specify whether it was imposing a Gissel Category I or Gissel Category II order, stating that it was unnecessary to decide the issue because the ease “clearly satisfies the greater burden imposed under ... Category II.” J.A. Vol. I, at 350 n. 32. We therefore deem the order to have been a Gissel Category II order, as we do when the Board declines to specify the nature of its action, yet conducts only a Category II analysis. See Appletree Chevrolet I, 608 F.2d at 996 n. 8. Scrutinizing the Board’s order as such, it is apparent that the order cannot stand. Not only was the Board’s (and ALJ’s) fundamental determination that the Union enjoyed majority status flawed, which alone would serve to invalidate the sweeping remedy ordered, see, e.g., N.L.R.B. v. Cell Agricultural Manu. Co., 41 F.3d 389, 397 (8th Cir.1994), but even if that determination were unassailable, the Board’s conclusion that a fair rerun election would be impossible was in error, given the large turnover in Be-Lo’s work force and the six-years that have elapsed since the alleged violations occurred.

A.

1.

As a threshold matter, the Board erred when it concluded that the Union produced a sufficient number of authorization cards (403) to establish majority status among Be-Lo’s work force as of March 20, 1991. In reaching this conclusion, the Board presumed as a matter of law (for reasons discussed infra) that the employees whose names appeared on a voter eligibility list current as of January 26, 1991 (hereafter “GC-63”) were the names of eligible voters in the bargaining unit as of March 20, 1991, and it calculated the number of authorization cards required for the Union to establish majority status (379) based upon the number of employees on this list. At the same time that the Board presumed there had been no changes in the company’s work force between January 26 and March 20, the Board allowed the NLRB General Counsel to introduce authorization cards signed during this two-month period by employees favoring Union representation in order to establish that the Union enjoyed majority status as of election day, but disallowed introduction of evidence by Be-Lo that forty-four of the employees who were listed on the GC-63 and who signed cards prior to January 26, left Be-Lo’s employ between January 26 and March 20. As well, the Board disallowed Be-Lo from introducing evidence that there were seventy-five new employees who had been hired between January 26 and March 20, virtually none of whom had signed cards. See J.A. Vol. I, at 344; J.A. Vol. Ill, at 1114-43, 1160-80; J.A. Vol. IV, at 1606-13. If Be-Lo’s proffered evidence had been considered and accepted by the Board and the ALJ, it would have shown that the Union did not actually enjoy majority status on March 20, on January 26, or on any date in between; in other words, it was only because the Board provided the Union, but not Be-Lo, the benefit of the period between January 26 and March 20 for purposes of gauging Union support that the Union was able to establish majority status.

The Board accepted the January 26 voter eligibility list as representing the Be-Lo employees eligible to vote in the election as of March 20, rather than allowing evidence to be presented on the actual number and identity of persons employed by Be-Lo as of that date, because it found that Be-Lo induced reliance upon the GC-63 “as the final voter eligibility list for the purpose of proving majority status.” J.A. Vol. I, at 351. Having found that Be-Lo induced reliance upon the GC-63, the Board excluded all evidence challenging that list, under the authority of its decision in Bannon Mills, 146 NLRB 611, 633-35 (1964). In this, the Board clearly erred.

The Board, while recognizing that the holding of Bannon Mills does not apply to Be-Lo’s actions,¹ nonetheless affirmed exclusion of Be-Lo’s evidence on the authority of Bannon Mills, reasoning that “the principle [of that case], the protection of the integrity of the hearing process” applied equally in this context as in the context where a party has withheld evidence in response to a subpoena. J.A. Vol. I, at 352 n. 35. Even were we to recognize such an extension of Bannon Mills, which we do not, such an extension would not serve to validate the Board’s exclusion of Be-Lo’s evidence as to the changes in its work force between January 26 and March 20, because in no sense can it be said that Be-Lo induced reliance upon the GC-63.

The Board and ALJ essentially estopped Be-Lo from arguing that changes had occurred in its work force, on the strength of a single, cryptic statement by Be-Ló’s counsel made in the course of an exchange on a motion to partially quash a NLRB subpoena directed to Be-Lo for payroll and related documents. During that exchange, counsel for the NLRB stated that he was seeking

a list[ ] of all bargaining unit employees for each of those payroll periods [in February and March]. In other vrords, a listing like they provided to the Board for the excelsior list for the election [GC-63] .... [because] the only thing available to the Regional Director to ascertain the majority that we are looking for in the Gissel complaint was the excelsior list.

J.A. Vol. II, at 438. In response, Be-Lo’s counsel stated that,

the election was March 21, and there were certainly so.me deletions from the excelsior list [GC-63] for those employees who were not on the payroll as of the date of the election. Those deletions were made and the board has that list as of March 21. They have it.

Id. at 439. On the basis of this latter statement, the Board held that Be-Lo induced reliance upon the GC-63.

We can appreciate the source of the ALJ’s and the Board’s confusion regarding the response by Be-Lo’s counsel. On its face, the statement could be understood as a representation that the General Counsel had been provided a revised Excelsior list, which included the deletions and additions of names for those employees- leaving and entering Be-Lo’s employ during the period January 26 to March 20. However, when this statement is considered in the context of the whole record, it is fairly clear that Be-Lo’s counsel was saying in this response only that the General Counsel and Union had in their possession a separate list of employees who either had been terminated by Be-Lo since creation of GC-63 or whose names, for one reason or another, had not appeared on that list, not as saying that the General Counsel and the Union had in their possession a revised GC-63 incorporating these personnel changes. As Be-Lo explains in its brief, and as the record confirms, the General Counsel and the Union had in fact been provided with what even the Union itself describes as a “list of employees who: a) are active employees not on the Excelsior list (Exhibit “A”), or b) employees who were terminated and should not be on the Excelsior list (Exhibit “B”).” J.A. Vol. 7, at 2435 (Letter of March 4, 1991 from Carey R. Butsavage to Sherrie Black of National Labor Relations Board, attaching Exhibits A & B).² That Be-Lo’s counsel was referring only to the list of changes and not to a new, integrated Excelsior list, is further supported, we believe, by the fact that the Union finds it necessary to misquote Be-Lo’s counsel in this important colloquy. The Union quotes Be-Lo not as saying (as Be-Lo’s counsel did) that “there were certainly some deletions from the excelsior list for those employees who were not on the payroll as of the date of the election ... and the Board has that list as of March 21,” but rather, as saying that, “[i]f you want a list of employees for purposes of determining the Union’s majority status, you have the Excelsior list [GC-63]. You have it.” See Intervenor’s Br. at 12 (citing J.A. Vol. II, at 439). Be-Lo’s counsel never made any such statement.

Ultimately, though, we need not determine whether (as the Board contends) the statement by Be-Lo’s counsel was intended as confirmation that the GC-63 was an accurate list of the company’s employees on March 20 or whether (as Be-Lo contends) the statement referenced only the separate list of employees who had departed Be-Lo or whose names had not appeared on the original Excelsior list. For, when considered against the backdrop of the three thousand pages of record in this case — a significant portion of which is devoted to the issue of determining the Union’s majority status— this single statement is manifestly insufficient to support a conclusion that Be-Lo induced reliance on the GC-63 such as to bar the company from introducing evidence on the inaccuracy of that list as of March 20. Not only did disputes over the GC-63 prompt both parties to contest over a hundred ballots before the final election on March 21; Be-Lo steadfastly maintained throughout the entire post-election proceeding giving rise to this appeal that the original Excelsior list (GC-63) required additions and deletions in order to make it an accurate list as of the March 20 majority date. Contrary to the holding of the Board that Be-Lo only contested the Union’s reliance on GC-63 “some 5 months into the hearing and after the [Union] had rested,” see J.A. Vol. I, at 251, Be-Lo vehemently and repeatedly challenged the accuracy of GC-63 before the close of the General Counsel’s case.. See J.A. Vol. Ill, at 1114-117.

Even if Be-Lo could be said to have induced reasonable reliance on GC-63 through its counsel’s single statement, reliance upon this statement by the General Counsel was not so prejudicial as to warrant exclusion of Be-Lo’s clearly relevant evidence. The General Counsel had subpoenaed additional documents from Be-Lo because it was dissatisfied with GC-63 and wished to make its own determination of which employees were eligible on March 20. See J.A. at Vol. II, 438-40. Thus, the Board had in its possession, through subpoenaed production, all of the information necessary to know that GC-63 was not an accurate list of Be-Lo’s employees as of March 20. Apparently, the NLRB itself even intended, at least initially, to challenge the accuracy of the list. Moreover, as explained, the General Counsel and the Union had in their possession a list of Be-Lo’s employees who either had departed the company since January 26 or whose names had been omitted from the original Excelsior list. Under these circumstances, we are at a loss to understand how the General Counsel could have been prejudiced.

2.

Apart from the Board’s erroneous exclusion of Be-Lo’s evidence of attrition and new hires prior to March 20, it is also apparent that the Board counted many authorization cards that were at least of questionable validity (even if not invalid) in the course of its finding that the Union had attained — by only 24 cards — a majority of support as of March 20. For example, Be-Lo challenged 40 cards as invalid because they were obtained under the false pretenses that the sole purpose for the cards was to authorize an election.³ Be-Lo presented the testimony of forty-three current and former employees who testified that they signed cards only after they were falsely assured that the only purpose of the cards was to seek an election, rather than to record their preference for union representation. This testimony was directly corroborated by the testimony of a Union witness, Kim Howell, who testified on cross-examination that she signed her card after she was told that the card’s only purpose was to seek an election and that she, in turn, likewise misrepresented the purpose of the authorization cards to numerous other employees:

BE-LO’s COUNSEL: [I] want to know what [Juanita Fridley] told you. Did she tell you that the card was necessary in order to have an election?

HOWELL: Yes.

BE-LO’s COUNSEL: Did she tell you that the card would be used only to get an election?

HOWELL: Yes.

At the end of re-cross-examination, Judge Linsky elicited the following additional testimony from Howell:

JUDGE LINSKY: The only reason for you to sign the card was to get an election?

HOWELL: Yes.

JUDGE LINSKY: No other reason?

HOWELL: Just to get an election.

JUDGE LINSKY: Okay, and what did you tell these people you got to sign cards?

HOWELL: I told them it was just for election.

JUDGE LINSKY: So, you told — you asked people to sign the card to get an election only?

HOWELL: Yes.

JUDGE LINSKY: And no other reason?

HOWELL: Just for election.

JUDGE LINSKY: All right.

J.A. Vol. I, at 204; see also J.A. Vol. II, at 602-03; J.A. Vol. Ill, at 1024.

Notwithstanding this testimony, the ALJ, in the following perfunctory footnote, credited all of the Union’s thirty-seven organizer-witnesses who claimed that they never misrepresented the purpose of any cards, see J.A. Vol. I, at 377, and discredited every single one of Be-Lo’s 43 witnesses:

In so far as there are inconsistencies, I credit some witnesses over others: I credit Organizer Karen Gompers over Lucille Thornburg and Linda Urguelles; I credit Organizer Fred Carter over Julie Price and Debbie White; I credit Organizer Dudley Saunders over Joyce Riddick and Roy Ray; I credit Organizer Berry Morrisette over William McCain; I credit Organizer Danny Murray over Lola Ford, Allen Butcher, Katherine Schuman, and Adelle Williams; I credit Organizer Cynthia All-good over Dorethea Holley and Venus McAllister, I credit Organizer Charles Garber over Jamie Turner, I credit Organizer Juanita Fridley over Richard Davis, Deborah Ann Moser, and Will March Jr.; I credit Organizer Patrick Burgwin over Pamela LeJeune; I credit Organizer Russell Wise over Michael Gray, Ronald Taylor, and Harry Fitzpatrick; I credit Organizer Jim Green over Barbara Riddick, Mary Johnson, Shirley Nease, Barbara Wilson, Larry Parker, Crystal Frazier, and Frank Davis; I credit Organizer Donna McNutt over Terry Huffstetler, John Mehan, Sandra Carvey, William McConnell, and Frank Davis; I credit Organizer Steven Henry over Aurelia Watts, Cordelia Beasley, and Julie Borman; I credit Organizer Tom Rogers over Evelyn Chappell, Haiti Edwards; Shelia Morgan, Pauline Pawhit, Frank Flora, Gloria Love, Theresa Robles, and Charlene Augson; I credit Organizer Vera Harrison over Shirletta Pope, Shirley Luter, and Jessica Goode; I credit Organizer Jim Jarboe over Janet Spence; I credit Organizer Mark Frederici over Catherin Lattuga; I credit Organizer Paul Evans over Vickie Brown; I credit Organizer Chad Yound over Harry Parker, I credit Organizer Willie Snow over Grace Calloway; I credit Organizer Lynn Colbert over Vickie Shatzoff, Rowmesa Hoyen, Chris Thomas, and Vanessa Devlin; and I credit Organizer Michael Heflin over Yvonne Giles.

See J.A. Vol. I, at 377 n. 3. The ALJ stated conclusorily in the text in which this footnote appears just that “[m]any of [Be-Lo’s] employees ... were so terrified about their job security ... that they were ready, willing, and able to help Be-Lo’s case by [committing perjury]____ Others were merely mistaken____” See id . at 377. The Board just as perfunctorily affirmed the ALJ in but a single sentence within a footnote. See id. at 352 n. 36.

Where an ALJ provides no more than a generalized, eonclusory statement purportedly incorporating a host of individual comparative credibility determinations with respect to multiple witnesses, we refuse to indulge the presumption that its findings are entitled to the ordinary deference. Cf. Burlington Industries, Inc. v. N.L.R.B., 680 F.2d 974, 977 (4th Cir.1982) (“We are not, however, required to accept [the] ALJ’s credibility determinations where they are not supported by substantial evidence.”). Otherwise, savvy ALJ’s could simply ground their judgments in broad, categorical statements that they credit all of one party’s witnesses and discredit all of the other party’s witnesses, and thereby effectively insulate their decisions from meaningful judicial review.

Here, for example, we suppose it is possible that the ALJ’s finding that each and every one of the Union’s thirty-seven witnesses was more credible on the stand than each and every one of the company’s forty-three witnesses was “simply the happenstance result of a dispassionate consideration of the substantive testimony of the [eighty] witnesses in question.” Fieldcrest Cannon, Inc. v. N.L.R.B., 97 F.3d 65, 78 (4th Cir.1996) (Luttig, J., concurring in part and dissenting in part). However, the far more likely explanation, particularly given the testimony by Kim Howell, is simply that Be-Lo was never provided a fair chance to dispute'the validity of the Union’s cards on the grounds that they were obtained under false pretenses.

The ALJ counted other highly questionable Union authorization cards as well. For example, in N.L.R.B. v. Heck’s, Inc., 386 F.2d 317 (4th Cir.1967), we held that cards obtained by supervisors cannot be counted in determining a union’s majority status unless there is “other proof of voluntariness,” reasoning that,

[a supervisor’s] day to day authority over employees provide[s] a basis for potential tyranny when improperly exercised by a supervisor thwarted in his aim to obtain union recognition, and an employee properly could doubt his ability to obtain protection by appeals to higher company authority.

Id. at 322. Despite our clear holding in Heck’s, the ALJ counted 15 cards that were indisputably obtained by supervisors. The ALJ also counted 13 cards not authenticated by any witness, see J.A. Vol. I, at 315-16, based upon its own comparison of the signatures on the cards with the signatures on the respective employees’ W-4 forms, even though Federal Rule of Evidence 901(b)(3) allows authentication by comparison only where the trier of fact has made the comparison with “specimens” which themselves “have been authenticated.” ⁴ Even in Action Auto Stores, 298 NLRB 875, 1990 WL (1990), enfd. mem. 951 F.2d 349 (6th Cir.1991), upon which the Board relied in affirming the ALJ’s admission- of these particular cards, see J.A. Vol. I, at 352 n. 36, the ALJ compared the signatures on the cards “with the same authenticated specimens utilized by the expert witnesses,” which were “known to bear the [employees’] signatures.” Action Auto, 298 NLRB at 879; see also N.L.R.B. v. General Wood Preserving Co., 905 F.2d 803, 811 (4th Cir.1990) (noting that authenticity was proven by comparing signatures “with what the undisputed evidence established to be the authentic specimens”).

In the aggregate, these actions by the ALJ, even if not error for reasons that are not apparent in the record, only contribute to our concern that the Union’s majority status was one of agency construct, rather than grassroots support.⁵

B.

Even if the Board had properly found that pro-Union employees constituted a majority on March 20, the Board nonetheless erred in imposing a bargaining order on the facts in this case. “[Section] 8(a)(1) violations alone are not enough to support a Gissel order,” Apple Tree Chevrolet II, 671 F.2d at 841; rather, the second part of the Apple-tree Chevrolet I four-part test imposes, in effect, two additional requirements. First, the employer’s misconduct must have been widespread and far-reaching, and second, this pervasive misconduct must have had the demonstrable effect of dissolving the majority once possessed by the Union. Although, in imposing its bargaining order, the Board characterized Be-Lo’s violations as “hallmark,” see J.A. Vol. I, at 353, “[n]ot every ‘hallmark’ violation amounts to exceptional misconduct under Gissel,” Kinney Drugs, Inc. v. N.L.R.B., 74 F.3d 1419 (2nd Cir.1996), due in no small part to the Board’s increasing practice of characterizing even relatively minor unfair labor practices as “hallmark.” Here, the record belies any assertion either that the company’s violations were widespread or that they eroded the Union’s majority status.

In order to be considered “pervasive,” a company’s unfair labor practices must, as the word connotes, be felt throughout all, or virtually all, of the bargaining unit. Be-Lo operated thirty retail grocery stores in the bargaining unit during the period in question and, according to the Board’s findings (a number of which we reverse herein as erroneous), a total of only some forty-three individual section 8(a)(1) violations were committed in approximately half of Be-Lo’s stores,⁶ and individual section 8(a)(3) violations occurred in only eight of the stores.⁷ Despite the Board’s reflexive characterization of these violations as “hallmark,” it is questionable whether a number of these were violations at all. The ALJ held, for example, that Be-Lo supervisor Cheryl Perras “unlawfully interrogated [Evelyn] Keyes and threatened store closure, loss of jobs, and reduced hours for employees if the Union was selected” when Perras merely “asked Keyes what she (Keyes) thought about the Union” and “went on to tell Keyes that if the Union got in and wages were raised some stores might close and people lose their jobs or hours would be cut.” See J.A. Vol. I, at 285. The ALJ also found that the company violated section 8(a)(1) when a co-manager of one of Be-Lo’s stores simply mentioned to an employee that he had seen the employee with a Union organizer. As the ALJ described the violation:

In January 1991 Cottrell was approached by union organizer Karen Gompers and shortly thereafter co-manager of store 102 David Rodriguez told Cottrell he had seen her with the Union organizer. This statement by Rodriguez to Cottrell creates the impression that Cottrell’s union activity was under surveillance and being monitored by management in violation of Section 8(a)(1) of the Act.

Id. at 289. And there are numerous similar examples throughout the ALJ’s opinion.

Even were the content of the remarks themselves more serious, these violations, collectively, would still not qualify as pervasive. Virtually all of the forty-three section 8(a)(1) violations and the fourteen section 8(a)(3) violations found by the Board arise from a statement or an action by a single supervisor to a single employee outside the presence of others. As a consequence, only some 40 of Be-Lo’s 756 employees (less than six percent of Be-Lo’s work force) were directly affected by these individual violations. Unfair labor practices that impact such a small portion of the bargaining unit do not qualify as pervasive. See Somerset Welding & Steel, Inc. v. N.L.R.B., 987 F.2d 777, 780 (D.C.Cir.1993) (refusing to enforce bargaining order where only ten percent of the employees were directly affected by the employer’s unfair labor practices); Avecor, Inc. v. N.L.R.B., 931 F.2d 924 (D.C.Cir.1991) (refusing to enforce bargaining order; six percent of labor force directly affected).

Finally, even if the violations here had been of both the number and seriousness that could support a finding of pervasive violation, there is no evidence that Be-Lo’s practices “dissipat[ed] a previous union majority.” Apple Tree Chevrolet II, 671 F.2d at 841. In Apple Tree Chevrolet II, we held that concrete evidence, not “pure[ ] speculation],” must support a Board determination that a union’s majority status was dissipated by pervasive unfair labor practices. Id. Violations of the kind and number at issue here simply could not have dissolved the Union’s majority status in Be-Lo’s 756 member employee bargaining unit absent wide dissemination, of which there is no evidence in this record. The record reflects that Be-Lo’s work force is transient by nature, and that its employees are widely dispersed throughout thirty separate stores in seven different cities. Even at the same store, employees may have little contact with their fellow employees who work different shifts. Common sense suggests that this is not the type of corporate workplace in which a relatively few statements made to, or employment actions taken against, single individuals in particular stores are likely to affect Union support company-wide. And the record in this case confirms this commonsense assessment that the effects of the individual violations were insignificant. During the election campaign period of January 26 to March 20, the Union obtained 69 new authorization cards, of which 50, or 72%, were procured from employees working at the fifteen stores in which Be-Lo committed its “unfair labor practices.” Thus, if the unfair practices had any real effect at all (which we doubt), it would appear that they galvanized support for the Union. Cf. Red Oaks Nursing Home, 633 F.2d at 510 (“[T]he most compelling evidence that a bargaining order was not warranted is the clear evidence in the record that the employer’s unfair labor practices did not drive the employees directly involved to abandon the union.”).

C.

Even if the incidents of impermissible conduct are pervasive and erode a union’s majority status, the Board must still carefully analyze, in record findings, the “continuing impact” of those violations. See Apple Tree Chevrolet II, 671 F.2d at 841 (“The continuing impact of [pervasive unfair labor practices] is the important matter.”); Appletree Chevrolet I, 608 F.2d at 996-97. Or, as the Sixth Circuit has held, “in reaching its determination to issue a bargaining order, the Board must make factual findings and must support its conclusion that there is a causal connection between the unfair labor practices and the probability that no fair election could be held.” Henry Bierce Co. v. N.L.R.B., 23 F.3d 1101, 1110 (6th Cir.1994) (emphasis in original) (internal quotation marks omitted). Moreover, the Board also“must make a detailed analysis assessing ... the potential effectiveness of ordinary remedies.” Appletree Chevrolet I, 608 F.2d at 997 (internal quotation marks omitted). When the Board issues a bargaining order without analyzing and “explaining] with specificity” why more traditional remedies such as a cease and desist order, posted notice, or similar less drastic remedies would not be equally effective, that order cannot stand. Id. at 997 n. 10 (quoting N.L.R.B. v. Craw, 565 F.2d 1267, 1272 (3d Cir.1977)); see also id. at 997-98; Red Oaks Nursing Home, 633 F.2d at 509 ([Consideration of the effectiveness of ordinary remedies ... [is] prerequisite for a bargaining order).

Plainly, the Board did not undertake the requisite comprehensive analysis here. The Board’s “continuing impact” analysis was limited to a summary of Be-Lo’s violations and management’s involvement in those violations, followed by the conclusory comment, unsupported by any evidence, that “‘the cloud created by these violations [is] likely to linger’ and cannot be dispersed by a traditional cease-and-desist order.” J.A. Vol. I at 354 (quoting Avecor, 931 F.2d at 938 (dicta)). This is not the “detailed analysis” of the “continuing effect of misconduct, and the potential effectiveness of ordinary remedies” that we require under Appletree Chevrolet I, 608 F.2d at 997 (internal quotation marks omitted).

If ever a fair rerun election would be possible, then it is here, given the substantial turnover in Be-Lo’s work force and other changed circumstances since the violations occurred. An inordinate amount of time has passed since Be-Lo’s unfair labor practices were committed and, as one of our sister circuits has noted, the adverse effects of all but the most egregious unfair labor practices become“dissipated” “[w]ith the passage of time,” “particularly when that conduct amounted to insubstantial violations in the first place.” N.L.R.B. v. LaVerdiere’s Enterprises, 933 F.2d 1045, 1055 (1st Cir.1991). The election campaign in which almost all of Be-Lo’s unfair labor practices occurred was conducted in February and March of 1991. The ALJ did not issue its decision until September 15, 1993, and the Board did not issue its order until July 15,1995. Thus, two years elapsed between the election and the ALJ’s decision, and another two years elapsed before the Board rendered its decision affirming the ALJ. “[I]nordinate delay attributable to the Board ‘cannot be ignored in developing a remedy----’” Id. at 1055 (quoting Texas Petrochemicals Corp. v. N.L.R.B., 923 F.2d 398, 406 (5th Cir.1991)). It strains credulity to believe that Be-Lo’s unfair labor practices, such as they were, had such long lasting effects that a fair rerun election could not have been held four years later, much less today, some six years after the original violations occurred.

Even more important than the passage of time, the vast majority of Be-Lo’s workers who were present when Be-Lo committed the labor violations are no longer even employed at Be-Lo. We have long held, contrary to the Board’s view, see, e.g., Q-1 Motor Express, 308 N.L.R.B. 1267, 1992 WTL 281689 (1992); Salvation Army Residence, 293 N.L.R.B. 944, 945, 1989 WL 223990 (1989), that “significant employee turnover through normal attrition” is highly relevant to determining the necessity of a bargaining order and well “may make a bargaining order inappropriate.” So-Lo Foods, 985 F.2d at 128-29; see also Apple Tree Chevrolet II, 671 F.2d at 841-42, and we reaffirm those decisions today. Significant employee turnover often (if not usually) renders a bargaining order inappropriate. Not only is the possibility of a fair rerun election great when “many of the intimidated employees have moved on” and been replaced by new workers who have not witnessed the company’s unfair labor practices, Avecor, 931 F.2d at 936, but “the issuance of a bargaining order in the face of significant employee turnover risks unjustly binding new employees to the choices made by former ones,” J.L.M., Inc. v. N.L.R.B., 31 F.3d 79, 84 (2nd Cir.1994). See Apple Tree Chevrolet II, 671 F.2d at 841-42 (declining to enforce a Gissel order in light of a 75% employee turnover).

Over sixty-six percent of Be-Lo’s employees turned over between the March 21,1991, election and entry of the Board’s order. See J.A. Vol. I, at 353. At oral argument, neither counsel for the Board nor counsel for the Union could cite us to any case in which a Gissel Category II order was enforced in the face of employee turnover so high.⁸On the other hand, numerous courts have denied enforcement of Gissel Category II orders where workplace turnover was considerably less than that at Be-Lo. See, e.g., N.L.R.B. v. Marion Rohr Corp., 714 F.2d 228, 231 (2nd Cir.1983) (order not enforced in light of 35% turnover); N.L.R.B. v. Chester Valley, Inc., 652 F.2d 263, 273 (2nd Cir.1981) (order not enforced in light of 34-60% turnover); Red Oaks Nursing Home, 633 F.2d at 510 (order not enforced in light of 35-64% turnover). Of course, high employee turnover is an even more important consideration where, as here, it was unlikely, because of separate work shifts and multiple business locations, that the unfair labor practices had much impact company-wide in the first place.

While acknowledging that only one third of the employees employed when the violations occurred still remained with the company when the mandatory bargaining order issued, the Board dismissed the employee turnover evidence with the terse observation that “ ‘[practices may live on in the lore of the shop and continue to repress employee sentiment long after most, or even all, original participants have departed.’” J.A. Vol. I, at 353 (quoting Bandag, Inc. v. N.L.R.B., 583 F.2d 765, 772 (5th Cir.1978) (dicta)). Absent substantial evidentiary support that the effects of unlawful practices have in fact continued to be felt in the workplace, we believe that such inferences as to the likely effect of “lore of the shop” have no place in the calculus of whether a mandatory bargaining order is warranted. Under such a speculative and indeterminate standard, the Board could decide in every case that “the possibility of a fair rerun election is slight,” even if the entire work force had turned over since commission of the unfair labor practices, thus eviscerating one of the most important of the heightened requirements for a Gissel Category II mandatory bargaining order. Just as the Board’s reliance on boiler-plate language discussing egregious misconduct in Appletree Chevrolet I would have led “in effect [to] the automatic issuance of bargaining orders,” 608 F.2d at 998, so also here would talismanic invocation of the “lore of the shop,” if approved, serve automatically to validate the issuance of bargaining orders. The perniciousness of such a blind acceptance of the “lore of the shop” is evident here, as there was no evidence whatsoever that the effects of Be-Lo’s unfair labor practices were “living on in the lore of Be-Lo’s shops.” Indeed, the highly transient nature of Be-Lo’s work force, and the fact that the company does business in some 30 different locations in seven different cities, underscore the likelihood that whatever “lore” existed in Be-Lo’s “shops” would have had little chance of “living on” for as many years as have elapsed.

In the end, it is apparent that the Board here — much like the Board in Apple-tree Chevrolet — simply“list[ed] unfair labor practices” and “followed [with a] conclusory statement that a fair election is no longer possible,” “disregardftng the] factors that militate against enforced bargaining,” Marion Rohr, 714 F.2d at 231 (citing Appletree Chevrolet I, 608 F.2d at 997-98), and undertaking only the most superficial analysis of alternative remedies. Mandatory bargaining simply cannot be ordered on such a basis.

III.

The Board, reversing a contrary holding by the ALJ, held that Be-Lo had discriminatorily denied Union members access to its property in violation of section 8(a)(1) when it sought and maintained state court injunctions to remove paid non-employee Union picketers from the sidewalks and parking lots of certain stores in the period following the election. The Board erred in this conclusion also.

The Board held that Be-Lo’s efforts to exclude non-employee Union picketers infringed the employees’ rights under section 7 of the Act, which provides that “[e]mployees shall have the right to self-organize, to form, join or assist labor organizations.” 29 U.S.C. § 157. The Supreme Court has held, however, that, once an employer’s private property rights are established under state law, the employer generally “cannot be compelled to allow distribution of union literature by non-employee organizers on his property,” Lechmere, Inc. v. N.L.R.B., 502 U.S. 527, 533, 112 S.Ct. 841, 846, 117 L.Ed.2d 79 (1992), even under the authority of section 7. The Board recognized as much, see J.A. Vol. I, at 348, but nonetheless held that an employer may forfeit its private property rights and violate section 8(a)(1) of the Act by denying access to Union picketers while allowing other distribution — whether such other distribution be charitable, political, or civic — because such conduct “discriminatefs] against the union” in a manner forbidden by N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956). See J.A. Vol. I, at 348. Because nonemployees’ claims to access to an employer’s private property are at their nadir when the nonemployees wish to engage in protest or economic activities, as opposed to organizational activities, see U.F.C.W. v. N.L.R.B., 74 F.3d 292, 300 (D.C.Cir.1996), we seriously doubt, as do our colleagues in other circuits, that the Babcock & Wilcox disparate treatment exception, postLechmere, applies to nonemployees who do not propose to engage in organizational activities. See, e.g., Cleveland Real Estate Partners v. N.L.R.B., 95 F.3d 457, 465 (6th Cir.1996). If it does, we further doubt that an employer’s approval of limited charitable or civic distribution while excluding union distribution constitutes discrimination. See id. (“No relevant labor policies are advanced by requiring employers to prohibit charitable solicitations in order to preserve the right to exclude nonemployee distribution of union literature when access to the target audience is otherwise available.”). We need not decide this issue today, however, because the record in this ease amply reflects that Be-Lo had an enforced policy of disallowing solicitation and distribution (as even appellees must concede) and that, as the ALJ found, the solicitation that occurred at the several of Be-Lo’s stores was only “isolated and sporadic,” J.A. Vol. I, at 375.

Be-Lo has had in place a broad no-solicitation policy in all of its stores for more than twenty years, and, in furtherance of this policy, the company has always posted no-solicitation signs in the front windows of its stores. See J.A. Vol. Ill, at 1067-74, 1124^-59, 1190-92; J.A. Vol. IV., at 1402-04. As the ALJ found, “Be-Lo’s policy was a very strong and broad policy which prohibited all solicitations on its property.” Id. at 375. While the record reflects that some groups did occasionally engage in distribution at a handful of the company’s stores without the knowledge or approval of Be-Lo’s owners, executives, or store-level management, these sporadic activities do not evidence that Be-Lo took a “laissez-faire attitude” toward enforcement of its no-solicitation policy, which was the equivalent of purposeful discrimination. The record reflects, as stated by the Board:

that Muslims selling oils and incense were present on a “pretty constant” basis in front of Store 232 and were present on a “regular” basis in front of Store 236. Further, an “occasional” Jehovah’s Witness distributed the Watchtower magazine at Store 148 and on one occasion a local Lions Club solicited at that store. Also, Lyndon LaRouche followers on a “couple of occasions” handed out literature at Stores 28 and 120. In addition, a person sold a cookbook inside Store 102 and “occasional[ly]” individuals sold Girl Scout cookies and greeting cards inside Store 232.

J.A. Vol. I, at 348. These few solicitations, which occurred in but a few of Be-Lo’s thirty stores over the period of a year and a half, are no more than could be expected at any large retail chain that was zealously defending its property rights. Certainly, they cannot be said to constitute evidence that Be-Lo “allowed other distribution” as the Court intended that phrase in Babcock. To affirm the Board’s contrary finding on this record would be tantamount to a holding that if an employer ever allows the distribution of literature on any of its property, then it must open its property to paid nonemployee union pieketers. We are confident that the Supreme Court never intended such a result. Cf. Cleveland Real Estate, 95 F.3d at 465 (“To discriminate in the enforcement of a no-solicitation policy cannot mean that an employer commits an unfair labor practice if it allows the Girl Scouts to sell cookies, but is shielded from the effect of the Act if it prohibits them from doing so.”). The Board therefore simply erred when it held that Be-Lo violated section 8(a)(1) by seeking state court injunctions to enforce its no-solieitation policy against the Union’s pieketers.⁹

IV.

The Board further erred, we are convinced, in reversing the ALJ’s conclusion that the distribution of Be-Lo’s pink slip flyer did not violate section 8(a)(1). As Be-Lo notes, the Board selectively quoted the flyer, the language of which, when read out of context, might well support a conclusion that the pink slip constituted a “threat of reprisal.” The Board only quoted the text of the mock pink slip purportedly signed by other grocery stores that had closed following unionization in the nearby area, together with a portion of a sentence from the flyer which read, “you may want to look at what the[Union] got for their former dues payer’s in this area — a pink slip.” J.A. Vol. I, at 341. The pink slip read as follows:

Dear Unionized Employees:

I regret to inform you that because we have lost our ability to compete in this extremely competitive market, we shall be forced to close this store and put you out of work.

J.A. Vol. IX, at 3238-39.

The Board held that the distribution of this flyer“threatened that [Be-Lo’s employees] would get a ‘PINK SLIP’ if they voted in the Union and became ‘Unionized Employees,’” because the recipients could easily identify with the employees of the other stores who had lost jobs and thus “reasonably conclude that if they voted in the Union, they would be the ‘Unionized Employees’ addressed in the ‘Pink Slip’ who would suffer store closure and job loss.” J.A. Vol. I, at 341.

Even assuming that the employees who received the pink slip could have understood the company’s message as one that closure of stores might result were the company to unionize, the distribution of this flyer would nonetheless be permissible under the Act, as the ALJ held. As the ALJ explained, an employer has the right to “make a prediction as to the precise effects he believes unionization will have on his company ... [and such a prediction may] convey an' employer’s belief as to demonstrably probable consequences beyond his control.” See Gissel, 395 U.S. at 618, 89 S.Ct. at 1942. At worst, the pink slip flyer was, as the ALJ held, a prediction, based upon the experiences of similarly-situated stores, of the probable economic consequences for Be-Lo and its employees if Be-Lo were to become unionized, made in response to the Union’s repeated claims that unionization represented “job security for all,” see, e.g., J.A. Vol. V, at 1690, and that Be-Lo was “telling half truths,” “outright lies,” “distorting the facts,” and “spreading propaganda.” See, e.g., id. at 1706. The flyer was not a threat that the company would close its doors in retaliation if the Union prevailed in' the election. See J.A. Vol. I, at 360. In fact, the portions of the flyer omitted by the Board in discussing the flyer confirm as much:

Dear Be-Lo Associate,

For several months you have been hearing sweet-sounding promises from the out-of-town union organizers, about higher wages, job security, grievance procedures, seniority rights and other expensive benefits which are easy to promise but hard to deliver.

At the same time they have also fed you militant anti-Be-Lo distortions charging this company — your company with “half truths, lies and propaganda”.

Half-truths? Lies? Propaganda? When you’re trying to figure out who is giving you the facts and who is promising you the moon, you may want to take another look at what the UNITED FOOD AND COMMERCIAL WORKERS UNION got for their former dues payers in the area- A PINK SLIP.

We will do everything we can to prevent this from happening to you, whether or not the union is voted in, but you should consider what the union has DELIVERED in the past before you believe what they PROMISE in the future.

J.A. Vol. IX, at 3238 (emphasis added). When the full text of the flyer is read, and the flyer is understood in the context of the claims being made by the Union against Be-Lo, it is evident that Be-Lo was not threatening to “take action solely on [its] own initiative for reasons unrelated to economic necessities.” See Gissel, 395 U.S. at 618, 89 S.Ct. at 1942. Even the Board is hard-pressed to characterize the flyer as more than a “carefully phrased” “prediction” “as to demonstrably probable consequences beyond [Be-Lo’s] control.” See Gissel, 395 U.S. at 618, 89 S.Ct. at 1942. It can say only that the flyer “reasonably tended to cause company employees to infer that they would be the ‘Unionized Employees’ addressed in the pink slip, who would suffer the announced store closure and job losses if they voted for the Union.” Appellee’s Br. at 10. Accordingly, as the ALJ held, the flyer “constitute^] free speech and legitimate propaganda,” see J.A. Vol. I, at 279, protected under section 8(c) of the Act. See DTR Industries, Inc. v. N.L.R.B., 39 F.3d 106, 113-14 (6th Cir.1994).

V.

The Board held that Be-Lo discharged or constructively discharged eleven individual employees in violation of section 8(a)(3). Although we affirm the Board’s conclusions that Be-Lo violated section 8(a)(3) with respect to six of these individuals, we hold that the Board erred in affirming the ALJ’s finding that the remaining five individual employment actions taken by Be-Lo were unlawful. In holding that Be-Lo committed violations when it did not recall employee Erwin Hatchett and when it discharged employees Shirley Terry, Pamela Jackson, Gwen Andrews, and Michael Salazar, the ALJ relied exclusively on evidence that these employees were strongly pro-Union and that they were discharged at a “suspicious time” (meaning during the election campaign period). It has long been the rule that “the mere fact that an employee — even a union activist — [is] discharged during a union campaign, standing alone, will not support a discriminatory finding if there is a ‘supportable cause’ for the discharge.” Appletree Chevrolet I, 608 F.2d at 993 n. 5 (emphasis added); see also, e.g., McLean Trucking Co. v. N.L.R.B., 719 F.2d 1226, 1228-33 (4th Cir.1983) (reversing violation based on evidence showing that a known union activist was discharged at a suspicious time, where other evidence showed that “supportable cause” existed because of the employee’s absenteeism); Wellington Mill Div., West Point Mfg. Co. v. N.L.R.B., 330 F.2d 579, 586 (4th Cir.1964). With regard to each of these five personnel, Be-Lo presented unrebutted evidence of a “supportable cause” for the discharge. Therefore, the ALJ erred in holding that these personnel actions violated the Act.

As noted by both the ALJ and the Board, Be-Lo initially laid off employee Erwin Hatchett because of the general decline in business related to the deployment of troops in the Persian Gulf. The unrebutted evidence supports Be-Lo’s contention that it did not recall Hatchett because no new meat cutter positions were available at the stores in Hatchett’s area. See J.A. Vol. I, at 345-46; Vol. II, at 671-72. The ALJ and the Board nonetheless held that Be-Lo’s failure to recall Hatchett violated section 8(a)(3) solely because there existed evidence that Hatchett was “at least a competent employee, and [Be-Lo] knew of his support for the Union, and ... failed to recall him as job openings arose.” J.A. Vol. I, at 346. With the exception of the characterization of Hatchett as a competent worker, which adds nothing of substance to the inquiry, this is the same type of evidence which we held insufficient in Appletree Chevrolet I to support the Board’s finding of section 8(a)(3) violations.

The Board likewise erred in holding that Be-Lo violated the Act by discharging employees Terry, Jackson, Andrews, and Salazar. The Board held that Shirley Terry’s discharge was unlawful solely on the ground that she was fired after Terry’s “pro-Union stance was well-known to [Be-Lo],” and after her picture appeared in a Union flyer. J.A. Vol. I, at 343; see also id. at 366. In the face of Be-Lo’s unrebutted evidence that Terry was discharged for admittedly giving away food to a co-employee without store authorization, see J.A. Vol. IV, at 1507, the Board and the ALJ were unjustified under Appletree Chevrolet I in concluding that Terry’s dismissal was an act of “harassment” because of her “prounion posture.” J.A. Vol. I, at 343-344. Similarly, the Board was not justified in concluding, solely from the evidence that Be-Lo was “well aware” of Pamela Jackson’s prounion activities and that Jackson had received a prior favorable work performance evaluation, J.A. Vol. I, at 373, that Jackson was discharged for discriminatory reasons, when the company presented unrebutted evidence that Jackson was discharged for failing to comply with the company’s request to provide a doctor’s note after she had called in sick under suspicious circumstances. See J.A. Vol. I, at 258-59; J.A. Vol. Ill, at 790-97; J.A. Vol. V, at 1659-60. In holding that Gwen Andrews, who was “expelled” from her job by a pro-union manager, was illegally discharged, the ALJ yet again relied solely on the legally insufficient evidence that Andrews was discharged two weeks before the election and was a known union supporter, see J.A. Vol. I, at 371, when the company presented unrebutted evidence that Andrews was expelled for refusing to follow her manager’s instructions. See id. The Board’s conclusion that Be-Lo violated the Act when it discharged Michael Salazar is, for the same reason, unsustainable. Although Be-Lo clearly knew of Salazar’s pro-union feelings and indisputably discharged him during the election campaign, Be-Lo’s evidence that it fired Salazar because of his pervasive absenteeism stood unrebutted. See J.A. Vol. IV, at 1383,1386.

We uphold, however, the remaining three violations challenged by Be-Lo on appeal — the constructive discharges of Jaime Cottrell and Kelly Call and the discharge of Sabrina Frazier. In those cases, although Be-Lo presented compelling evidence that the employees at issue either voluntarily quit or good cause existed, there was substantial evidence in the record, in addition to the employee’s pro-union stance and the timing of his or her departure, which supports the ALJ’s finding of a Section 8(a)(3) violation. There is direct evidence in the record, for example, that Cottrell was transferred from store 102 to store 67 as punishment for pro-union activities and that she was unable to work as a result of this transfer. Cottrell testified that Be-Lo’s district manager told her that since “he could not fire her” he would send her to store 67, “an antiunion store,” where “[a]ll of my employees hate the union” and “want to know who the hell Jaime [Cottrell] is,” and also that he would“be on her like [a] fl[y] on shit.” J.A. Vol. I, at 342, 366; J.A. Vol. II at 545-58. And while Be-Lo claims that Kelly Call quit voluntarily, there was direct evidence that Kelly Call’s produce manager expelled her solely for wearing a Union t-shirt, and that thereafter she was informed by a store manager that she had “quit.” See J.A. Vol. I, at 370. And although the ALJ relied in part on the suspicious timing of Sabrina Frazier’s discharge in holding that discharge to be unlawful, see J.A. Vol. I, at 372, this decision does not run afoul of Appletree Chevrolet I because the record contains evidence that a Be-Lo manager told Frazier she was “digging her own grave” by appearing in a pro-Union flyer shortly before her discharge, and that the reason that store officials were “riding her ass” was because of her support for the Union; J.A. Vol. II, at 719, 729. The additional direct evidence of discriminatory discharge in these three cases sets them apart from the other five challenged on appeal, and provides sufficient, albeit not conclusive, support for the ALJ’s findings.

We also affirm the Board’s holdings, • expressly uncontested by Be-Lo on appeal, that Be-Lo violated Section 8(a)(3) by discharging employees Angela Cox, Kim Howell, and Lavonne Billups.

CONCLUSION

The Board’s order of mandatory bargaining is reversed, as are its conclusions that Be-Lo violated section 8(a)(1) by distributing the pink slip flyer and by seeking injunctions to prevent nonemployee picketing, and that the company violated section 8(a)(3) by not recalling Erwin Hatchett and discharging Shirley Terry, Pamela Jackson, Gwen Andrews, and Michael Salazar. We affirm the Board’s findings that Be-Lo violated section 8(a)(3) when it discharged employees Jaime Cottrell, Kelly Call, Sabrina Frazier, Angela Cox, Kim Howell, and Lavonne Billups. The case is remanded to the Board for entry of such order as remains appropriate in light of the opinion herein.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED

1 . In Bannon Mills, the Board held that a party may be sanctioned with exclusion of evidence when it withholds evidence in response to a subpoena request. Because Be-Lo fully complied with its subpoena request by producing all of the business and payroll records properly requested by the General Counsel, the Board conceded, as it must, that Bannon Mills (which is not the law of this circuit in any event) is, strictly speaking, inapplicable here. See J.A. at 352 n. 35.

2 . An Excelsior list is a list of employees provided by the employer for use by a union during an election. The Excelsior list in this case became, with minor alterations not relevant to this dispute, the GC-63.

3 . If the language on a card is"deliberately and clearly cancelled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature,” see Gissel, 395 U.S. at 606-07, 89 S.Ct. at 1936, then a pro-union authorization card may not be counted. Such words of cancellation obviously include statements "that the card [is] to be used solely for the purpose of obtaining an election.” Id. at 584, 89 S.Ct. at 1925; see also Burlington Industries, Inc. v. N.L.R.B., 680 F.2d 974, 976 (4th Cir.1982).

4 . At one point during a colloquy between the ALJ and the Union with regard to the challenged authorization cards, the Union offered to call a lay witness to compare the signatures on the authorization cards with the signatures from the respective employees' W-4 forms. The ALJ stated that that would not be necessary, and the company agreed that such would be unnecessary, that the judge could make the comparison without lay assistance. After the company agreed that a lay witness was unnecessary to compare the sets of signatures, the ALJ said, in an impromptu statement, that the parties had stipulated that the W-4s were the authentic W-4s from the company's files. Insofar as we can discern, the parties never stipulated to anything. However, even if the company’s silence in response to the ALJ’s off-hand remark, which remark did not call for any response from the company’s counsel, were understood as an affirmative stipulation, it was a stipulation at most to the authenticity of the forms generally, not a stipulation to the signatures on those forms.

Not even the Union’s counsel seems to have believed that the parties stipulated to the authenticity of the signatures on the W-4 Forms. When, subsequently, he separately introduced into evidence each W-4 Form, he repeatedly and consistently recited that each form only "purportedly" was signed by the named individual, a careful representation that obviously carried with it the implicit acknowledgment that the signature had never actually been authenticated. See J.A. at 1082-97. In fact, the ALJ himself referenced the W-4s in the same way, clearly suggesting that not even he believed that the parties had stipulated to the authenticity of the signatures. Id. at 1087 ("Why don’t you state what it is though, you know, the number and the authorization card of so and so and the W-4 purportedly from the same person.” (emphasis added)).

5 . Because the General Counsel never made the requisite showing that the Union achieved majority status, it follows a fortiori that the Board erred in holding that Be-Lo violated section 8(a)(5) by declining to bargain with the Union after March 20, 1991.

6 . In its brief before this court, the Union alternatively claimed that the ALJ held that Be-Lo committed "some 50” individual section 8(a)(1) violations, Intervenor's Br. at 6, and "over 70” violations of section 8(a)(1), id. at 7. Similarly, the Board claimed that the ALJ found "more than 70” individual violations of section 8(a)(1), Appellee’s Br. at 12, and "at least 80-some” violations, id. at 41. The confusion of the Board and Union with respect to the number of section 8(a)(1) violations found by the ALJ is doubtless attributable in part to the fact that neither the ALJ nor the Board in their opinions totaled the number of violations that were found by the ALJ, preferring instead simply to refer to the section 8(a)(1) and section 8(a)(3) violations collectively as "repeated” or "numerous,” J.A. Vol. I, at 360, 374 (ALJ’s opinion), and "over fifty,” id. at 352 (Board’s opinion). In our review of the ALJ’s opinion, however, we have identified only some forty-three section 8(a)(1) violations arising from Be-Lo’s treatment of individual employees.

7 .The Board, reversing the ALJ, also justified its pervasiveness finding with the fact that Be-Lo violated the Act by distributing its pink slip flyer to all of its employees shortly before the election. As we explain infra Section IV, we agree with the ALJ that the company’s distribution of the pink slip flyer did not constitute a violation of section 8(a)(1).

8 . In So-Lo Foods, although we noted that "turnover through normal attrition may make a bargaining order inappropriate and is relevant to th[e] inquiry” of whether to issue a mandatory bargaining order, 985 F.2d at 128-29, we declined to allow the company to supplement the record before us so as to include an affidavit in which the company's Director of Personnel represented that there had been a 73% employee turnover. We did so, however, because all but "perhaps a small portion of the turnover” occurred after the Board's decision. See id. at 128 n. 6. Indeed, the turnover that had occurred prior to the ALJ's decision was so minimal that the ALJ refused even to hear the evidence, a decision with which the company itself implicitly agreed. Id.

9 . Because we hold that Be-Lo did not violate the Act by seeking to obtain and enforce state court injunctions to exclude the Union’s pieketers, it again follows a fortiori that the Board also erred when, through a retroactive application of its own decision in Loehmann’s Plaza, 305 N.L.R.B. No. 81, 1991 WL 251696 (1991), the Board held Be-Lo liable for the Union's attorneys' fees and costs in defending the injunction action.