Evergreen America Corp. v. National Labor Relations Board

531 F.3d 321, 184 L.R.R.M. (BNA) 2513, 2008 U.S. App. LEXIS 13466
CourtCourt of Appeals for the Fourth Circuit
DecidedJune 26, 2008
Docket06-2105, 06-2183
StatusPublished
Cited by6 cases

This text of 531 F.3d 321 (Evergreen America Corp. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evergreen America Corp. v. National Labor Relations Board, 531 F.3d 321, 184 L.R.R.M. (BNA) 2513, 2008 U.S. App. LEXIS 13466 (4th Cir. 2008).

Opinions

Petition for review denied; cross-application for enforcement granted by published opinion. Judge GREGORY wrote the opinion, in which Judge MICHAEL joined. Judge DUNCAN wrote a separate opinion concurring in part and dissenting in part.

OPINION

GREGORY, Circuit Judge:

After losing its representation election, Local 1964, International Longshoremen’s Association, AFL-CIO (“Union”) filed a complaint against Evergreen America Corporation (“Evergreen”) with the National Labor Relations Board (“Board”). The Board found that Evergreen committed numerous unfair labor practice violations and issued a bargaining order. On appeal, Evergreen contends that the Board erroneously found that the Union enjoyed a pre-election majority and substantial evidence did not support the Board’s factual findings. Evergreen also argues that a bargaining order is unnecessary because traditional remedies would be more than adequate. We disagree with Evergreen’s contentions and enforce the Board’s bargaining order in its entirety.

I.

Evergreen is the general agent in North America for three of the world’s leading [325]*325ocean carriers, providing customer service, sales, marketing, logistic and administrative support. In March 2002, two clerical employees of Evergreen met with the Union to discuss the Union’s representation of Evergreen’s clerical employees in northern New Jersey. After holding a meeting on April 15, 2002, the Union distributed authorization cards which would allow the Union to represent the employees. The employees also formed an organizing committee to circulate additional cards among the employees that were not able to attend the meeting. Some authorization cards were signed at the meeting. Others were given to employees who distributed them to other employees; both groups of employees obtained signed cards from other employees. By June 15, 2002, sixty-two of the 1151 employees in the appropriate bargaining unit had signed authorization cards. On June 4, the Union filed a petition for an election among Evergreen’s clerical employees in northern New Jersey. The election was held on July 17, and the Union lost by a vote of sixty-one to fifty-two.

After losing the election, the Union filed unfair labor practice charges with the Board. The Board’s General Counsel (“General Counsel”) issued a complaint, which alleged that Evergreen had committed numerous violations of Sections 8(a)(3) and (1) of the National Labor Relations Board Act (“Act”) (29 U.S.C. §§ 158(a)(3) and (1)) and that a bargaining order was necessary to remedy those violations. After a lengthy hearing, the Administrative Law Judge (“ALJ”) issued a decision sustaining most of the allegations in the complaint, dismissing others, and recommending a bargaining order to remedy the violations found. Evergreen and the General Counsel filed exceptions.

The Board found that the Union had valid cards and that Evergreen violated Section 8(a)(1) of the Act by unlawfully interrogating employees on thirteen occasions; soliciting employee grievances and implicitly promising to remedy them on fifteen occasions; explicitly making the same promise on eight occasions; threatening reprisals on nine occasions; twice instructing employees not to attend union meetings and to throw away union literature without reading them; and once creating the impression those employees’ union activities were under surveillance. The Board further found that Evergreen violated Sections 8(a)(3) and (1) of the Act by granting unprecedented large across-the-board wage increases to bargaining-unit employees, and promoting an unprecedented number of such employees prior to the election and by granting eight other benefits, before and after the election, to dissuade the employees from supporting the Union.

The Board also found that the unfair labor practices described above, as well as other unfair labor practices not contested in this Court, rendered it unlikely that a fair rerun election could be held. Further, the Board found that these unfair labor practices had not been effectively repudiated nor had the passage of time diminished their effect. Accordingly, the Board concluded that a Gissel II bargaining order was necessary to remedy those violations. The Board ordered Evergreen to cease and desist from the unlawful conduct, to bargain with the Union upon request, and to take other affirmative remedial action. Evergreen filed a petition for review in this Court, and the Board filed a cross-[326]*326application to enforce the bargaining order.

II.

In its petition, Evergreen first contends that facts found by the Board do not support its inferences or conclusions that Evergreen committed “hallmark” violations. In support of its conclusion that Evergreen committed unfair labor practices, the Board found that prior to the election Evergreen (1) granted unprecedented and excessive across-the-board wage increases to unit employees; (2) manipulated its promotion process in order to promote more unit employees than in past years; (3) promised to remedy grievances in order to encourage employees to reject representation; and (4) granted employees new or improved benefits, some of which were granted after the election.

It is now well settled that Board findings of fact are conclusive as long as they are “supported by substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(e); Overnite Transp. Co. v. NLRB, 280 F.3d 417, 428 (4th Cir.2002) (en banc) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 490-91, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). While “[t]he Board may not base its inference on pure speculation ... it may draw reasonable inferences from the evidence.” Overnite Transp. Co., 280 F.3d at 428 (citing Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1362 (4th Cir.1969)). Even though we might reach a different result after hearing the evidence in the first instance, we defer to the Board’s findings of fact that are supported by substantial evidence. Id. (citing NLRB v. Daniel Constr. Co., 731 F.2d 191, 193 (4th Cir.1984)).

Under this standard, we conclude that substantial evidence supports each of the Board’s findings and address their specific findings with respect to the unprecedented wage increases, the unprecedented promotions, promises to correct grievances, and the new and improved benefits seria-tim.

A.

Evergreen contends that the Board ignored substantial business reasons for the across-the-board wage increases.

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531 F.3d 321, 184 L.R.R.M. (BNA) 2513, 2008 U.S. App. LEXIS 13466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evergreen-america-corp-v-national-labor-relations-board-ca4-2008.