Rehearing en banc granted by order

filed 7/5/01. Panel decision filed

2/16/01 is vacated.
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OVERNITE TRANSPORTATION COMPANY,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

No. 99-2494

Respondent,

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS,

Intervenor.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

OVERNITE TRANSPORTATION COMPANY,

No. 00-1065

Respondent,

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS,

Intervenor.

On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board

(18-CA-13394, 18-CA-13481, 18-CA-13642, 18-CA-13438,

18-CA-13484, 18-CA-13394-51, 18 RC-15812, 18-CA-13394-35,

18-CA-13395-36, 9-CA-33793, 18-RC-15814, 18-CA-13394-27,

8-RC-15786, 18-RC-15782, 18-CA-13394-91, 18-CA-13394-13,

18-RC-15768, 18-CA-13916, 4-RC-18747, 5-RC-14213,

9-RC-16504, 9-RC-16505)

Argued: June 8, 2000

Decided: February 16, 2001
Before NIEMEYER and KING, Circuit Judges, and

Irene M. KEELEY, United States District Judge for the

Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Petition for review denied and cross-application for enforcement

granted by published opinion. Judge King wrote the majority opinion,

in which Judge Keeley joined. Judge Niemeyer wrote a dissenting

opinion.

_________________________________________________________________

COUNSEL

ARGUED: Kenneth T. Lopatka, MATKOV, SALZMAN, MADOFF ARGUED:

& GUNN, Chicago, Illinois, for Overnite. William Maurice Bernstein, Senior Attorney, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for Board. Carey Robert Butsavage, BUTSAVAGE & ASSOCIATES, P.C., Washington, D.C., for Teamsters. ON

BRIEF: Kenneth F. Sparks, Christopher A. Johlie, MATKOV, BRIEF:

SALZMAN, MADOFF & GUNN, Chicago, Illinois, for Overnite.

Leonard R. Page, General Counsel, Linda Sher, Associate General

Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for

Board. Marc A. Stefan, BUTSAVAGE & ASSOCIATES, P.C.,

Washington, D.C., for Teamsters.

_________________________________________________________________

OPINION

KING, Circuit Judge:

Overnite Transportation Company petitions for review of the Decision and Order (the "Order") entered against it on November 10,

1999, by the National Labor Relations Board (the"Board"). Pursuant

to its statutory authority and the Supreme Court's decision in NLRB

v. Gissel Packing Co., 395 U.S. 575 (1969), the Board affirmed its

Administrative Law Judge ("ALJ"), directing Overnite to bargain with

the International Brotherhood of Teamsters, AFL-CIO, and its affili-

 2
ated local unions (collectively the "Union") at four of Overnite's service centers. The Board has cross-applied for enforcement of its

Order. For the reasons explained below, we deny Overnite's petition

for review and grant the Board's cross-application for enforcement.

I.

A.

Our recitation of the facts is drawn in significant part from the

ALJ's Decision of April 10, 1998 (the "Decision"), which was

affirmed by the Board as to "rulings, findings, and conclusions as

modified." Overnite Transp. Co., 329 N.L.R.B. No. 91, 1 (Nov. 10,

1999).1 As the facts reveal, this is a complex proceeding arising in the

context of a campaign advanced by the Union to organize the bulk of

Overnite's 175 service centers throughout the country. The Union

alleged, inter alia, that Overnite had granted a discriminatory wage

increase in March 1995 to non-Union employees only, in an unlawful

attempt to discourage its employees from supporting the Union,

thereby violating sections 8(a)(1) and 8(a)(3) of the National Labor

Relations Act (the "Act").2 The Union also asserted that Overnite

undermined fair elections by engaging in various and pervasive unfair

labor practices at specific service centers. The Board's General Coun-

_________________________________________________________________

1 All references to the Order, along with the ALJ Decision attached 1 

thereto, are cited accordingly.

2 Section 8 of the Act provides in pertinent part as follows: 2 

It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in the

exercise of the rights [to engage in union activities] . . . ;

. . .

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage

or discourage membership in any labor organization .. . ;

. . .

(5) to refuse to bargain collectively with the representatives

of his employees . . . .

29 U.S.C. § 158.

 3
sel subsequently issued a consolidated complaint against Overnite,

alleging that the company had violated the Act in several respects

during the Union's organizing campaign. On July 29, 1995, the General Counsel and Overnite entered into a partial settlement agreement

with respect to the consolidated complaint, which the Board approved

and incorporated into a decision of September 6, 1995.3

After the partial settlement, several issues remained for resolution

by the ALJ, relating primarily to whether Gissel bargaining orders

were warranted at seventeen of Overnite's individual service centers.4

The parties thereafter agreed to litigate a sampling of the seventeen

_________________________________________________________________

3 The partial settlement agreement addressed a number of the Union's 3 

section 8(a)(1) and 8(a)(3) allegations arising out of the 1995 discriminatory wage increase. It dealt with conduct for which the only remedy

required was a cease and desist order. In broad terms, the agreement recognized that the Board could forthwith enter an order:

1) prohibiting Overnite from engaging in practices including

the "grant [of] wage or benefit increases motivated by a desire

to thwart a representation campaign," and soliciting grievances

or making threats tending to discourage union representation;

and

2) directing Overnite to affirmatively take certain actions, such

as

a) providing monetary relief to employees at the Kansas City

(Missouri), Blaine (Minnesota), Indianapolis (Indiana), and

West Sacramento (California) terminals to compensate for

the withheld March 5, 1995 wage increase, and

b) posting notice of the settlement stipulations at all of Overnite's terminals.

See J.A. 91-97. All issues relating to conduct that would support remedies beyond a cease and desist order were expressly excluded from the

partial settlement agreement.

4 In Gissel 4 , the Supreme Court recognized that the Board may properly

exercise its remedial authority by issuing a bargaining order when "an

employer has succeeded in undermining a union's strength and destroying the laboratory conditions necessary for a fair election[.]" 395 U.S. at

612. Accordingly, such bargaining orders are commonly referred to simply as "Gissel orders."

 4
Gissel cases, on the premise that a limited decision by the ALJ would

assist them in determining how to advance with the remaining issues.

By the terms of the partial settlement, the General Counsel reserved

the right to use any relevant and admissible evidence, including evidence pertaining to allegations resolved therein.

In his Decision, the ALJ determined that Overnite had committed

unfair labor practices affecting employees on both a nationwide and

a unit-specific basis. The ALJ proceeded to find that such conduct

justified issuance of Gissel orders at four of Overnite's service centers, i.e., those located in Lawrenceville (Georgia), Louisville (Kentucky), Norfolk (Virginia), and Bridgeton (Missouri). The Board, by

its Order, adopted the ALJ's Decision and directed Overnite to bargain with the Union at those four service centers. Overnite petitions

for review of the Board's decision on the Gissel orders, and the Board

cross-applies for enforcement of its Order.

B.

In the exhaustive findings set forth in his Decision, the ALJ

catalogued multiple violations of the Act by Overnite, consisting of

both national violations and unit-specific violations. Those findings

are summarized below.

1. National Violations

Two specific violations were found by the ALJ and the Board to

have been committed by Overnite on a system-wide basis. These

national violations consist of a pair of discriminatory wage increases,

in violation of sections 8(a)(1) and 8(a)(3) of the Act, the first taking

effect in March 1995, and the second in January 1996.

a. The March 1995 Wage Increase

At the core of this proceeding -- and a key justification for issuance of the four Gissel orders -- is the nationwide wage increase

granted by Overnite to its non-Union employees in March 1995.

Beginning in 1991, Overnite had departed from its practice of granting across-the-board raises to its hourly employees each October;

 5
Overnite instead deferred the raise anticipated in October 1991 until

January 1992, granting additional small hourly increases in January

1993 and January 1994. Along with its 1994 hourly increases, Overnite introduced a performance incentive plan (PIP), which provided

for employee bonuses if the company met its quarterly and annual

earning targets. Due to its disappointing financial performance, however, Overnite awarded only one quarterly PIP bonus in 1994.

Attributable perhaps to employees' unfulfilled bonus expectations,

the Union stepped up its organizing efforts in September 1994. Overnite's president at the time, Thomas Boswell, responded aggressively

to the Union organizing effort in a November 22, 1994 letter to the

employees, in which he warned:

I guarantee you, based on what they have done at other companies, the Teamsters will not help us to better make our targets or pay you bonuses or salary increases. . . . The long

lasting record of the Teamsters is not just that they failed to

deliver on their promises, but that when their demands have

been met, trucking companies have often lost the battle to

survive.

Overnite, 329 N.L.R.B. No. 91 at 17. Similar warnings were made in

a December 7, 1994 letter that Overnite distributed to drivers and

dock workers in Los Angeles who were attempting to organize. Id.

Overnite invoked the Union experience at its Chicago facility, declaring that "just like in Chicago, after the Union was unable to keep the

wild promises it made before the vote, it called the employees out on

strike." Id. The December 7 letter ominously concluded: "Do you see

any good reason to bring this outside Union in, pay your money to

it, and at the same time run the risk of tearing apart everything you

now have?" Id. at 18.

These anti-Union statements were a harbinger of the first discriminatory wage increase, conceived in January 1995, when Jim Douglas

replaced Boswell as Overnite's president. Just before he left, President Boswell had proclaimed that non-Union employees would

receive a 3.5% increase, effective January 1, 1995. Boswell also

 6
revealed certain other workplace improvements, calculated to appease

the employees.5

When Jim Douglas took over, however, he immediately determined

that employees should be given an additional raise. On February 10,

1995, President Douglas announced the "highest annual hourly raise

in Overnite's history," effective March 5, 1995. He advised the

Union, however, that employees in the represented units6 would not

receive the raise, unless negotiated through collective bargaining. The

March 5, 1995 wage hike, as the ALJ aptly noted,"was not granted

silently." Id. at 21. Overnite's management heralded the increase in

the company newsletter, The Overniter, while emphasizing that

employees in the four represented units would have to wait until wage

issues were settled through Union negotiations. Id. Reviewing the

company's conduct in this regard, the ALJ concluded:"The clear

implication was that a vote for the Teamsters forfeited any benefits

given by [Overnite] to the nonunion employees." Id.

Overnite further resisted the Union's widespread organizational

efforts by holding out the prospect of certain non-wage concessions.

For example, employees were advised that President Douglas was

committed to increasing the drivers' speed limits, in order "to make

the drivers happy." Id. "Only Douglas could deliver. The Teamsters

could not, Overnite repeatedly claimed, as shown by its dealings with

the Union in Chicago, where Local 705 was certified in 1982 and bargaining had little favorable results for the Teamsters." Id. at 22. Analyzing Overnite's characterization of the Chicago experience, the ALJ

further found that the company "explained it in a way that made it

implicit that [Overnite] had no intention of bargaining in good faith

. . . [giving] the impression that bargaining would be futile." Id. Overnite drew attention to the Chicago standoff to communicate "that the

_________________________________________________________________

5 The ALJ made clear that this was essentially Overnite's standard, 5 

yearly wage increase, and, as such, unobjectionable. Overnite, 329

N.L.R.B. No. 91 at 18.

6 As of March 1995, the represented units -- that is, those locations at 6 

which the Union acted as collective bargaining representative -- consisted of the company's service centers in Kansas City, Indianapolis,

West Sacramento, and Blaine.

 7
only way that the Teamsters could bring pressure on Overnite was by

striking." Id.

President Douglas travelled extensively to certain of Overnite's

service centers in early 1995, personally meeting with employees to

convey his commitment to responsive management. Although Douglas insisted that his conversations with employees were intended simply to introduce them to his management style and his direction, the

ALJ found that their real impact was to "draw the difference between

him and Boswell and to emphasize that he looked upon the employees

more favorably and would take care of them." Id. at 19. His discussions with employees encompassed wages, overtime, and benefits,

i.e., the fundamental terms and conditions of employment, and the

ALJ found that "Douglas's purpose was to explore and remove the

employees' concerns." Id.

Consistent with Douglas's efforts, Overnite promoted a "Give Jim

a Chance" campaign, distributing shirts and buttons emblazoned with

that slogan. Id. at 20. This message was borne by a corps of "troubleshooters" dispatched by Overnite to identify the sources of employee

unrest. Id. A "group of roving, solid supporters" of Overnite, these

"troubleshooters" were assigned to travel from service center to service center, soliciting grievances and reporting them back to Overnite's headquarters. Id. The ALJ found that the troubleshooters'

solicitations contained an implied promise to resolve the grievances.

Id. In effect, the ALJ found that Overnite, under Douglas's direction,

actively sought and acquired knowledge as to "what the employees

were so dissatisfied about and why they were seeking out the Teamsters." Id. at 20-21. Equipped with that knowledge, the company took

measures -- the discriminatory 1995 wage increase, most prominently -- designed to convince the employees that only the company

could solve their problems. Id. at 22.

b. The January 1996 Wage Increase

The second of the two discriminatory wage increases was implemented by Overnite in January 1996, arising from a series of events

chronicled in the ALJ's Decision. In early 1995, Overnite enlisted the

services of management consultants who recommended substantial

operational changes, including the closure of service centers, route

 8
changes, and decreased hours. Id. at 55. To make these proposed

changes more palatable to employees, President Douglas and other

Overnite officials decided to propose a fifty-cent-per-hour wage

increase -- to be funded by significant productivity-boosting measures. Id. at 56. Accordingly, Overnite drafted a productivity agreement setting forth the hourly raise, along with other enhancements to

insurance benefits and overtime pay. These benefit increases were

conditioned on the Union's national committee consenting to Overnite's right, inter alia, to "`[s]et, change and cancel days and hours of

work' for all job classifications" and to set driving schedules, routes,

and running times. Id. at 57.

Overnite pitched the productivity agreement to its employees in

December 1995. The ALJ characterized the company's tactics as follows:

What Overnite did here was to send by overnight mail its

productivity agreement to the Union, wait 1 day, and then

make its presentation to the employees directly, 2 days

before negotiations were to or did resume. That bypasses the

Union in the same way as if [Overnite] never made any proposal at all to the Union, and Overnite certainly gave the

Union no adequate opportunity to digest the proposal or to

respond or to begin discussion.

Id. at 58. Ultimately, the Union's national committee rejected the proposed productivity agreement, and Overnite unilaterally granted the

fifty-cent increase to employees at ninety-three percent of its service

centers -- all those except the represented units-- "continuing its

established practice of yearly increases and holding back on only the

ones that had voted for the Teamsters." Id. at 59.

Overnite then took measures to ensure that this discriminatory

wage increase would be noticed by its employees. Indeed, the ALJ

found that Overnite "publicized the withholding of the increase to

demonstrate that voting for the Teamsters presented serious, adverse

consequences." Id. at 60. The company flaunted its actions, and it

"distributed [anti-union] campaign flyers stating that employees in the

represented units were 50 cents per hour behind nonunion employees

after the 1996 wage increase and blamed the Union for refusing to

 9
allow the employees it represented to accept the increase and refusing

to bargain above the increase." Id.

2. The Unit-Specific Violations

In addition to the national violations, the ALJ found that Overnite

had committed scores of unfair labor practices at the four Gissel locations.

a. Lawrenceville

In late 1994, the Union began organizing at Overnite's

Lawrenceville, Georgia service center. A representation election was

conducted four months later, in April 1995. The Union lost the election, by a vote of forty-two to thirty-eight, and thereafter complained

of Overnite's pre-election misconduct.

The ALJ found that Overnite engaged in a series of unfair labor

practices at Lawrenceville during the election campaign. For example,

Overnite was found to have restricted access to bulletin boards that

had previously been available for employee postings. Overnite's "purpose was to discourage the employees in their campaign[,]" and the

ALJ concluded that Overnite had thereby violated section 8(a)(1) of

the Act. Id. at 34. Other unfair labor practices found by the ALJ to

have been committed by Overnite included:

- Lawrenceville manager Bill Carter "gave the impression

to [an employee] that he was monitoring union activities[.]" Id.

- Carter announced to a group of employees that he had

attended a management conference, and that Overnite,

under Douglas's management, was pursuing solutions to

employee complaints regarding such issues as overtime

policies and uniforms. The ALJ found that Carter's statements "unlawfully promised benefits in order to discourage employees from supporting the [Union]." Id.

- Carter threatened to get rid of employees if they voted to

be represented by the Union. Id. at 35. Indeed, he admit-

 10
ted telling two employees that he could have fired them

for certain incidents; if they were to vote in the Union,

he would not be as lenient. Id.

- An Atlanta manager, Roger Schager, conducted several

mandatory meetings for the Lawrenceville employees at

which he made illegal threats of closure and employee

job loss. He projected that if Overnite had to operate

under a Union contract, it would be forced to go out of

business. He also warned that other trucking companies

had not been able to survive unionization. Id. 

- After screening an anti-union film at one such meeting,

Schager reportedly told an employee: "[I]f you want a

Union job why don't you go and get a Union job with

a company that is a Union company." Id. at 36. On

another occasion, he unlawfully offered to help employees get jobs with union carriers if they were dissatisfied

with Overnite's non-union status. Id.

- Schager also recounted the Chicago experience to a

group of employees; Schager told them that the Chicago

unit still did not have a contract after protracted negotiations, but he neglected to mention Overnite's culpability.

Id. As the ALJ observed, "[b]y Schager's omission of

any reference to the Board's finding that Overnite bargained in bad faith, [Overnite] implied that bargaining

would be futile, lasting for years without any possibility

of agreement." Id.

- Similarly, in March 1995, Lawrenceville dispatcher

Mike Rivers told a group of employees that employees

at the Kansas City service center had not received the

March 5 pay raise, despite having voted for Union representation. He added that, based on what the company's

lawyers had told him, Overnite would never sign a Union

contract. Rivers asked the employees to look at what had

happened at the Chicago service center, reminding them

that the Chicago employees had been represented by the

Union for ten to thirteen years and still did not have a

 11
contract. Like Schager, he advised Lawrenceville

employees that all Overnite had to do was bargain in

good faith. Id. at 37.

- In late March, Overnite's vice president of safety, Bobby

Edwards, came to Lawrenceville and met with employees, speaking to them about Chicago in detail. Edwards

told them that the Chicago employees had voted for

Union representation and had been in negotiations with

Overnite for about ten years but still did not have a contract. Additionally, he emphasized that employees at

those service centers that had voted for Union representation in 1994 and 1995 would not receive the March

1995 pay raise because the raise was subject to collective

bargaining. Id.

- At another meeting, Edwards repeated the remarks about

Chicago, adding that all Overnite had to do was negotiate

in good faith. Edwards also announced that the employees at the service centers that had voted for Union representation before March 5 would not receive the pay raise

because it would be left "on the negotiating table." Id.

- While visiting the Lawrenceville service center, President Jim Douglas suggested to employees that they serve

on committees to come up with better ways to spend

benefit funds. This, the ALJ found, "amounted to soliciting grievances from employees with a promise to redress

them." Id. at 38. Douglas further threatened "that management would change its attitude in the way it enforced

its work rules" if the Union won. Id. Douglas advised

one employee that if the Union's campaign were successful, everything, including the employees' jobs and

benefits, would be jeopardized. Id.

b. Louisville

A coordinated Union organizing effort began at the Louisville,

Kentucky service center in early October 1994. By late November,

managers were soliciting employee grievances, in violation of section

 12
8(a)(1) of the Act. See id. at 39. A representation election was held

on March 17, 1995, and the Union lost by two votes, eighty-five to

eighty-three. Id. at 43. The ALJ found that Overnite management,

during the period leading to the representation election, engaged in

numerous unlawful measures to, alternately, appease and threaten its

Louisville employees. Overnite's illegal conduct was found by the

ALJ to include the following:

- Louisville manager Dave Harmeier conducted a series of

employee meetings, some impromptu and some mandatory, in which he promised to be responsive and encouraged employees to give the "new vision" of Douglas a

chance. Id.

- Following this positive introduction, Douglas made a

personal appearance at the Louisville service center a

week before the scheduled election (about March 9 and

10). Douglas assured employees that he "was going to

try and `straighten stuff out,'" and he specifically mentioned the wage increase and improved benefits. The

ALJ found that, in the context in which they were

extended, Douglas's promises were intended to dissuade

employees from supporting the Union. Id.

- In tandem with these rosy promises, management

"warned of the harm to employees that would result if

the Union were successful." Id. at 40. One supervisor

warned employees that Overnite would "play hardball"

if the Union won, and everyone would have to work

harder. Id. Another projected that "we'd all be out of

work" if the Union were voted in. In short, the ALJ

found that Overnite "threaten[ed] employees with the

loss of their jobs and more onerous working conditions

if they selected the [Union] as their bargaining representative." Id.

- At one meeting, Vice President Edwards told the

employees that the Chicago facility still did not have any

kind of contract, and that it had been at least ten years

since the employees voted the Union in. Id.

 13
- At other mandatory meetings, Edwards reported that the

Union had won in Chicago in 1984 and that Overnite had

been bargaining in good faith since then. Edwards added

that all Overnite was obliged to do was offer five days'

sick leave and "that was bargaining in good faith[.]" Id.

If the Union were voted in, he projected, "then that

means that [the Union] would start from scratch." Id.

Edwards also said that at service centers that had voted

in the Union, the pay raise would have to be negotiated,

and if the Louisville employees voted in the Union, bargaining would be handled basically like negotiations in

Chicago. Id.

- Edwards discussed Chicago at yet another meeting,

recounting how company representatives would show

up, charges would be filed for bargaining in bad faith,

Overnite would go to court and pay a small fine, and

then it would not have to show up again until the following year. Id.

- On several occasions, Edwards and Harmeier made predictions about unionization to employees assembled for

mandatory meetings. Once, Edwards pointed out that the

Louisville employees would be receiving the March pay

increase, but terminals that had voted a union in, such as

Kansas City, would not because they would have to

negotiate first. Id. Another time, Edwards opined that the

only way employees would get a contract was to go on

strike, and if they did, they could be replaced. Id. Harmeier also stated that the only leverage the Union had in

bargaining was to call a strike, and warned that the

Union could do so without a vote by the employees. Id.

- Louisville supervisors also took measures to impede the

employees' statutory right to distribute and read Union

literature. The ALJ found that, on one occasion, a supervisor "literally pulled [Union] papers out of the hands of

one employee who was reading it and threw it in the

trash." Id. at 41.

 14
- On the Friday night before the election, an Overnite

supervisor told an employee that Harmeier had instructed

him to get rid of all Union literature during the last week

of the campaign. Id. At about the same time, a "Teamsters Graveyard" poster was put up in the break room,

depicting the gravestones of unionized trucking companies; among them was an Overnite headstone with an

open grave and a question mark. Id. at 21 n.10.

c. Norfolk

The Union organizing campaign began at the Norfolk, Virginia service center in January 1995. A representation election was held on

March 3, 1995. The Union lost by a vote of fifty-eight to twenty-nine,

and objected to Overnite's illegal pre-election conduct. As in

Lawrenceville, Overnite was found by the ALJ to have violated the

Act by impeding its Norfolk employees in their use of company bulletin boards for Union literature. More specifically, Overnite removed

Union literature from bulletin boards that had been made available for

the employees' general use. Id. at 48. Norfolk manager Michael Mendenhall threatened to fire employees for posting an NLRB form on

one such bulletin board. Id. The ALJ found that Overnite engaged in

a number of other unlawful practices leading up to the election at

Norfolk, including:

- Supervisors told employees that, among the adverse consequences of voting in the Union, they would lose the

March 5, 1995 pay raise. Id. at 47-48.

- Mendenhall told employees that the good things Overnite had planned would be postponed because the company would have to divert the funds to keep Overnite

nonunion. Id. at 48. The ALJ further found that Mendenhall "gave some instructions about the way the union

campaign was to be run," informing employees that"he

would not stand for any union literature on his bulletin

board." Id. (emphasis in original).

- In late February 1995, Mendenhall conducted a lengthy

meeting attended by about twenty-five employees. He

 15
began the meeting by stating that the Union had filed a

petition for an election and that any of the service centers

that voted in the Union before March 5 would not

receive the pay increase scheduled to take effect that day,

because the increase could not be established in the

absence of contract negotiations. He further remarked

that the service center in Chicago had not settled on a

contract after thirteen years of negotiations. Id.

- Mendenhall told the employees that he would not tolerate conversations about the Union while employees were

working or at the workplace, and that if they did not

comply with that policy, they had better be careful. Prior

to the Union campaign, company policy was that

employees could talk to one another as long as their conversation did not interfere with their jobs. Id. at 48-49.

- During the week following the February meeting,

employee David Spaugh, an outspoken Union supporter,

asked Mendenhall how long it would be before he would

be fired if the Union lost the election. Mendenhall

replied: "Everyone will be held accountable." Id. at 49.

On March 14, Mendenhall told Spaugh and fellow

employee Rich Williams that Williams had become an

"agitator." Id. He warned that he did not want to see anything bad happen to either of them because of the Union

campaign, and that they should be careful. Id. 

- At various other mandatory meetings, Mendenhall made

additional predictions about the consequences of unionization. For example, he repeated that the Kansas City

employees would not be getting the March pay increase

because they had voted the Union in. Id. at 47. He also

boasted that in the thirteen years the Union had represented employees at the Chicago service center, there

had never been a contract. If the Union were to prevail

at Norfolk, he projected, the same scenario would play

out in Norfolk: Overnite would negotiate in good faith,

but the employees would never get further than their

vote. Id. at 50.

 16
- At one or more of the meetings, Mendenhall also told the

employees that if the terminal voted for Union representation, "business would be rerouted around them" and

their hours might be cut. Id. As an example, he cited the

experience at Kansas City, where "word was" that this

was happening. Id.

- On several occasions, Mendenhall threatened employees

with unspecified retaliation, letting them know that he

"was not going to stand for insubordination." Id. at 49.

Moreover, he was found to have denied pro-union

employees the same opportunities to speak at the mandatory meetings as anti-union employees, "cut[ting] short

employees who made pro-union comments or asked

questions for clarification." Id. at 50.

- Management threatened employees with the loss of the

company's 401(k) pension plan. Id.

- In the weeks before the election, Norfolk supervisors

gave "Vote No" hats to those employees who were going

to vote against the Union, which the ALJ found to constitute interrogation of employees about their union sympathies. Id. at 49-50.

- In February, a supervisor told a group of eleven or

twelve employees that if the Union were to win, they

would lose their jobs. Moreover, if the Union were to

strike, they would lose their jobs and Overnite probably

would not call them back. That same day, another supervisor told an employee that the employees were going to

get a fifty-cent-per hour raise, but if the Union were

voted in, they would "lose it." Id. at 50.

- On March 14, a supervisor told a Norfolk employee that

he was "afraid" for himself and Overnite if the Union got

in. He expressed his concern that Overnite would not be

able to pay the Union scale, and that the employees

should look at the union companies that had gone out of

business. Id. at 49.

 17
- An employee complained that supervisors"`watched

[him] like a hawk' and stayed within listening distance."

Id. at 50. The ALJ determined that not only did supervisors create an impression of surveillance, but that"there

was actual surveillance and monitoring in violation of

Section 8(a)(1) of the Act." Id.

- The former Norfolk manager was sent to assist with the

anti-union campaign. The ALJ found that he unlawfully

"told employees that Douglas was working on improvements of the workplace and benefits, an implied promise

of those improvements; impliedly promised the termination of the [terminal manager], if that would change

employees' pro-union sympathies; and informed

employees that strikes were inevitable[.]" Id. at 51.

d. Bridgeton

The Union began an organizing campaign when Overnite opened

a new service center in Bridgeton, Missouri, in December 1994. A

representation election was scheduled for and held on February 28,

1995. The Union lost by two votes, twenty-four to twenty-two, and

filed objections to Overnite's pre-election conduct.

In January 1995, Bridgeton manager Walter Grimes began illegally

monitoring one of the most steadfastly pro-Union drivers -- "even

checking the bathroom" -- to ensure that he was not engaging in

organizational activities. Id. at 53. Along with illegal monitoring, the

ALJ found numerous other pre-election violations, including:

- Grimes removed union literature posted on the company

bulletin board, left on tables in the break room and in the

employee bathroom. While removing the pro-Union literature, the manager allegedly remarked that he"[didn't]

like seeing that shit hanging on his board." Id.

- In January and February, local supervisors ended conversations between Union supporters and other employees.

On the other hand, conversations between anti-union

 18
employees and others were left undisturbed. Around the

same time, Grimes asked a union supporter what the

employees wanted. When that employee said overtime

and better benefits, Grimes responded: "They are in the

works." Id. at 54.

- Overnite's "troubleshooters" arrived in the Bridgeton-St.

Louis area around February 5 and stayed until February

14, riding with all the drivers except the two most active

union supporters. Id. at 53.

- One such troubleshooter, Andy Hamilton, told a driver

that Overnite wanted to make its employees happy,

accommodating them by improving benefits and inviting

more employee input. After the driver mentioned that

overtime would make the company a better place to

work, Hamilton assured him that it was in the works.

Hamilton also told the employee that he would look into

the idea of an employee committee that would participate

in selecting the benefit package, but advised him that

"we don't need a third party at Overnite." Id. at 53-54.

When another employee made similar suggestions about

benefits and overtime pay, Hamilton told him those

things were in the works. Id.

- During the pre-election period, Overnite sent the former

Bridgeton Manager Jeff Woods, Operations Director

Morgan, and President Douglas to speak to the Bridgeton

employees. In February, Woods told employees that

Overnite was looking into overtime and, although he

could not make any promises, he was "pretty sure" it was

going to happen and that it was "almost a sure thing,

almost a done deal." Id. at 54. Woods warned that the

Union "would not work within the Overnite environment" and that, as a result, the benefit improvements

Overnite was trying to make would be lost. Finally, just

a week before the election, he urged employees to give

the new management a chance. Id.

- About two weeks before the election, Operations Director Morgan spoke at a mandatory meeting of about fif-

 19
teen employees. He responded to questions about

overtime pay by telling them that Douglas had taken

over as president and, although he could not promise

them anything because of the Union campaign, Douglas

was looking into these problems and devising solutions.

Id. On the same day, Morgan informed a group of

employees that it was not too late to come up with nonUnion solutions to employee grievances. When one

employee remarked that other companies had better

wages and benefits, but that Overnite's profits were

higher, Morgan replied that these were the sorts of problems that they needed to present to Douglas, and that

they ought to give Jim a chance. Id. at 55.

- President Douglas made several visits to Bridgeton prior

to the election, speaking with employees about benefits,

including overtime pay. During one such conversation,

Douglas queried, "What if we gave you overtime at say,

over 45, 48 hours, but we maybe lessen something here,"

adding that they were looking into medical benefits.

Douglas proceeded to discuss the pros and cons of overtime pay. Id. at 54.

- In another conversation, Douglas responded to an

employee question about overtime pay after eight hours

a day or forty-eight hours a week by asking "how about"

after forty-five or forty-eight hours a week, because

Overnite would not pay for the hours mentioned. Id. at

55. About a week before the election, Douglas told a

Bridgeton employee that overtime after forty-seven or

forty-eight hours would be beneficial, but that Overnite

was not considering overtime after shorter periods. Id.

- Two weeks before the election, Douglas held a meeting

with about twenty to twenty-five employees. He

announced that he wanted to know what was on their

minds, and that he was trying to change things for the

better. In response to employee questions about matters

such as overtime, uniforms, sick days, and medical benefits, Douglas assured employees that he was looking into

 20
such matters. The company, Douglas asserted, could take

care of its own and did not need third-party interference.

Id.

C.

As we have noted, the Board, after consideration of the extensive

record and the Decision of the ALJ, affirmed the ALJ's "rulings, findings, and conclusions as modified[.]"7 Importantly, the Board

expressly ratified the ALJ's finding "that the withholding of the

March 1995 increase from the union-represented employees was

unlawfully motivated and violated Section 8(a)(3) of the Act." Id. at

4. In the Board's view, Overnite's wage manipulations were intended

to convey the message that employees "could choose to remain unrepresented and enjoy any pay increase [Overnite] might grant in the

future, or they could vote for union representation and forego such

benefits." Id. at 3. The Board also found that Overnite violated sections 8(a)(1) and 8(a)(5) of the Act in "bypassing the union and dealing directly with employees in the eight recognized and six contested

units with respect to its 1996 productivity package," and violated sections 8(a)(1), 8(a)(3), and 8(a)(5) "by unilaterally and discriminatorily

withholding the wage and mileage increases from those same employees." Id. at 4.8 The Board agreed with the ALJ that Overnite violated

section 8(a)(3) of the Act when it announced and granted to unrepresented employees the overtime portion of the productivity package "in

order to dissuade them from seeking union representation." Id.

_________________________________________________________________

7 The Board's modifications leave intact all but two of the specific vio- 7 

lations identified by the ALJ; neither affects the propriety of the decision

to issue Gissel orders at the four contested service centers. See Overnite,

329 N.L.R.B. No. 91 at 1.

8 As of December 11, 1995, Overnite had recognized and commenced 8 

bargaining with the Union as the representative of units of employees at

its service centers in Chicago, West Sacramento, Kansas City, Blaine,

Indianapolis, Grand Rapids, Miami, and Tucson. Id. at 56. Along with

these eight recognized units, there were six contested units for which the

Board had certified Union locals, but Overnite refused to recognize them

-- St. Louis, Milwaukee, and Rockaway (New Jersey)-- or where

Board certifications were pending -- Romulus (Michigan), North Canton

(Ohio), and Atlanta. Id.

 21
Based on its evaluation of the severity and lasting inhibitive effect

of these violations, the Board then concluded that Overnite's "unfair

labor practices cannot be adequately remedied at the present time by

the Board's traditional remedies." Id. at 6. Accordingly, the Board

adopted the recommendation set forth in the ALJ's Decision, and it

issued Gissel orders with respect to Overnite's Lawrenceville, Louisville, Norfolk, and Bridgeton service centers. These four Gissel orders

-- directives from the Board for Overnite to bargain collectively with

the Union as the representative of its employees-- form the basis for

the proceedings in this court.

II.

Under section 10(e) of the Act, "[t]he findings of the Board with

respect to questions of fact if supported by substantial evidence on the

record as a whole shall be conclusive." 29 U.S.C.§ 160(e). We therefore review the Order to determine if it is supported by substantial

evidence on the record as a whole. Universal Camera Corp. v. NLRB,

340 U.S. 474, 490-91 (1951). If the ALJ's findings of fact, as adopted

by the Board, are supported by substantial evidence, then "our inquiry

ends . . . even though we might have reached a different result had

we heard the evidence in the first instance." NLRB v. Daniel Constr.

Co., 731 F.2d 191, 193 (4th Cir. 1984) (citation omitted).

We have characterized substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion." NLRB v. Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 1262,

1269 (4th Cir. 1994). We have also recognized that while "substantial

evidence" is more than a scintilla, it may also be less than a preponderance. AT&T Wireless PCS, Inc. v. City Council of Virginia Beach,

155 F.3d 423, 430 (4th Cir. 1998). Where the "record is fraught with

conflicting testimony and essential credibility determinations have

been made," we must give particular deference to the ALJ's findings

and the Board's conclusions. NLRB v. Nueva Eng'g, Inc., 761 F.2d

961, 965 (4th Cir. 1985) (citing NLRB v. Air Prods. & Chems., Inc.,

717 F.2d 141, 145 (4th Cir. 1983)). We must also affirm the Board's

conclusions applying the law to the facts, provided they are reasonable and consistent with the Act. See NLRB v. Yeshiva Univ., 444 U.S.

672, 691 (1980). Ultimately, of course, courts "remain the final

 22
authorities on issues of statutory construction." Shanty Town Assocs.

Ltd. v. EPA, 843 F.2d 782, 790 (4th Cir. 1988).

Moreover, the courts have consistently recognized that the Board

possesses broad discretion to craft appropriate remedies. Accordingly,

the Board's chosen remedy should be enforced "unless it can be

shown that the order is a patent attempt to achieve ends other than

those which can fairly be said to effectuate the policies of the NLRA."

NLRB v. Williams Enter. Inc., 50 F.3d 1280, 1289 (4th Cir. 1995). We

have acknowledged, however, that an election, rather than a Gissel

order, "remains the traditional, as well as the preferred, method for

determining the bargaining agent for employees." NLRB v. Appletree

Chevrolet, Inc., 608 F.2d 988, 996 (4th Cir. 1979) (Appletree I). We

therefore "exercise less deference" and require "scrupulous specificity

from the Board when it issues a mandatory bargaining order on the

authority of [Gissel]." Be-Lo Stores v. NLRB, 126 F.3d 268, 274 (4th

Cir. 1997). In any event, and notwithstanding the favored status of

elections, the Board -- given its "fund of knowledge and expertise"

-- must be accorded special respect by reviewing courts in fashioning

a remedy. NLRB v. So-Lo Foods, Inc., 985 F.2d 123, 126 (4th Cir.

1992) (quoting Gissel, 395 U.S. at 612 n.32).

III.

A.

In its 1969 Gissel decision, the Supreme Court recognized the

Board's authority to issue remedial bargaining orders in two distinct

situations. First, such orders may be appropriate in"Category I" cases,

where "exceptional," "outrageous," and"pervasive" unfair labor practices have occurred, and where the coercive effects of such practices

"cannot be eliminated by the application of traditional remedies." BeLo, 126 F.3d at 274 (quoting Gissel, 395 U.S. at 613-14). Second, and

more typically, remedial bargaining orders may issue in so-called

"Category II" cases, where the Board has found that: (a) the Union

once had majority status; (b) such majority status was dissipated by

the employer's pervasive misconduct; (c) the possibility of erasing the

effects of these past pervasive practices and ensuring a fair election

is slight; and (d) employee sentiment would, on balance, be better

 23
protected by a bargaining order. Appletree I, 608 F.2d at 996 (quoting

Gissel, 395 U.S. at 614).

In fashioning a remedy in Category II cases, the Board may consider the scope and severity of the unfair labor practices, with an eye

to their past effect on election conditions and the likelihood of their

recurrence in the future. See Gissel, 395 U.S. at 614. If the Board concludes that a fair election could not be adequately ensured by traditional remedies and "that employee sentiment once expressed through

[union authorization] cards would, on balance, be better protected by

a bargaining order, then such an order should issue." Id. at 614-15.

B.

Here, the Board expressly classified Overnite's conduct as falling

within Category II. Under Gissel, the Board is empowered to order an

employer to bargain with a union that has demonstrated majority support prior to erosion of that support by the employer's commission of

unfair labor practices. As a threshold matter, therefore, we examine

the factual underpinnings of the Union's employee support at the four

service centers at issue.

1. Lawrenceville

The Board adopted the ALJ's finding that the Union had attained

majority support at Overnite's Lawrenceville service center in February 1995. Overnite, 329 N.L.R.B. No. 91 at 33. As of February 25,

1995, the Lawrenceville unit comprised eighty-six employees, fortyfive of whom were found by the ALJ to have endorsed valid petitions.

Id. Overnite contested the majority support finding, claiming that the

signed petitions on which the Board's finding was premised were

"only for an election," and did not constitute an authorization for the

Union to represent these employees.

The ALJ reasonably rejected this contention. The challenged petitions stated clearly that the signer "authorize[s] the [Union] . . . to represent me in collective bargaining." Such unambiguous language,

absent affirmative proof that the signer was told that the petition

would be used solely to obtain an election, entitles the signature to be

 24
counted for the purpose of establishing majority support. Gissel, 395

U.S. at 606.

Here, Overnite simply failed to meet its burden. Its argument consists of an attack on the ALJ's credibility determinations, which are

entitled to acceptance absent "exceptional circumstances." See NLRB

v. CWI of Maryland, Inc., 127 F.3d 319, 326 (4th Cir. 1997). The ALJ

credited the card solicitors on the basis of their comparative demeanor

and their recollections, which were "far better and clearer" than those

of witnesses testifying to the contrary.9 We discern no exceptional circumstances here, and we therefore conclude that the Board was entitled to adopt the ALJ's finding of majority support at Lawrenceville.

2. Louisville

The situation with respect to Louisville was much simpler than that

at Lawrenceville. It is uncontested by Overnite that the Union enjoyed

majority support at the Louisville service center. The ALJ determined

that, on January 20, 1995, when the Union sought recognition as the

employees' representative, "117 of 174 employees had signed cards

designating the Union as their representative for the purposes of collective bargaining." Overnite, 329 N.L.R.B. No. 91 at 38. The Board

reasonably relied on this uncontested finding in fashioning its remedy.

3. Norfolk

The ALJ also found that the Union enjoyed majority support in the

Norfolk bargaining unit during the relevant period in 1995. Id. at 47.

This finding is not challenged by Overnite. Accordingly, the Board

properly adopted this finding for purposes of imposing its Gissel

order.

_________________________________________________________________

9 As the ALJ noted, many of the employees "were afraid of the conse- 9 

quences of their act, now in the open, and were willing to do anything,

even to give false testimony, to preserve their jobs and their good standing with their employer." Overnite, 329 N.L.R.B No. 91 at 33.

 25
4. Bridgeton

The ALJ found that the Union enjoyed majority support at the

Bridgeton facility from its inception. Id. at 52. Opened in December

1994, the Bridgeton facility was staffed entirely by employees transferred from the existing Hall Street (St. Louis) facility. Overnite's primary objection to the ALJ's finding of majority status at Bridgeton

relates to whether authorization cards signed by former Hall Street

employees, prior to their transfer, remained valid as to the emerging

bargaining unit at Bridgeton.

The Board was entirely justified, on the record presented, in adopting the ALJ's finding "that the cards authorize the Union to represent

the employees at Bridgeton." Id. As the ALJ observed:

In the circumstances of this proceeding, [the cards] did not

limit the Union to represent them only at Hall Street, especially because they were soon to transfer to the new service

center. As a result, I reject Overnite's contention and will

count the cards that were dated prior to the opening of the

Bridgeton service center.

Id. Overnite contends that the ALJ erred in regarding as valid those

authorization cards signed by former Hall Street employees prior to

November 30, 1994 -- the date on which transfer assignments for the

new Bridgeton terminal were posted. Since these employees did not

know for certain that they would be transferred to the Bridgeton facility, Overnite insists that they could not have intended to authorize

representation at Bridgeton. The company maintains that its employees' support of Union representation at Hall Street might have been

based upon conditions peculiar to that facility, e.g., concerns about

dioxin contamination.

We find Overnite's contentions unavailing. While the Bridgeton

employees who signed authorization cards prior to November 30,

1994, may not yet have received confirmation of their transfer, they

had demonstrated clear interest in Union representation. Overnite

would have us reject those authorization cards simply because the

employees did not specify their will to be represented at both service

centers. The cases proffered by Overnite do not compel that position,

 26
and we see no reason to adopt it.10 Given the prominence of wage and

benefit considerations in unionization decisions, we are loath to presume that employees who supported union representation at Hall

Street would prefer to be unrepresented at Bridgeton. As the ALJ

observed, "[e]xcept for the location and identity of supervision, nothing changed. The employees continued to perform the same work for

the same employer with the same pay and benefits." Id. In our view,

it was reasonable, and consistent with the Act, for the Board to adopt

the ALJ's decision to count those cards signed prior to November 30,

1994, "even though [the employees] signed while not formally

employed at the new facility." Id.

C.

Both the Board and the ALJ, presented with evidence establishing

that the Union enjoyed majority support at each of the four relevant

service centers, were further justified in concluding that Overnite's

pervasive misconduct -- nationally and locally-- warranted Gissel

orders for those four service centers.

1.

Specifically, the Board emphasized several "hallmark violations"

committed by Overnite, practices so coercive that their very existence

will support the issuance of a bargaining order unless some significant

mitigating circumstance exists.11See So-Lo Foods, 985 F.2d at 126

_________________________________________________________________

10 Citing Koons Ford of Annapolis, Inc. 10 , 282 N.L.R.B. 506, 517 (1986),

Overnite contends that "even if card signers knew that transfer was `possible' -- and no card signers testified to that-- Board law requires more

than a `possibility.'" Koons, which addresses the validity of authorization

cards signed by job applicants, is inapposite. The Bridgeton employees

who signed cards prior to their transfer were personally invested in the

company and its unionization status. Their situation is distinctly different

than that of job applicants who have not been hired and whose knowledge of the terms and conditions of employment is extremely limited.

11 The Board regarded as "hallmark violations" Overnite's "granting of 11 

an unprecedented wage increase, as well as threats that employees would

lose their jobs and that the business would be closed if the employees

selected the Union." Overnite, 329 N.L.R.B. No. 91 at 2.

 27
(quoting NLRB v. Jamaica Towing, 632 F.2d 208, 212-13 (2d Cir.

1980)). Where hallmark violations have been committed, the seriousness of the conduct justifies a finding -- without extensive explication -- that the conduct is likely to have a lasting inhibitive effect on

union elections. Id.

Although the presence of hallmark violations will presumptively

support a Gissel order, the "mere presence of such a violation . . .

does not automatically preclude a fair second election or mandate the

issuance of a bargaining order." So-Lo Foods , 985 F.2d at 127 n.5

(quoting J.J. Newberry Co. v. NLRB, 645 F.2d 148, 153 (2d Cir.

1981)). In such instances, the Board must still scrutinize the specific

misconduct in order to ascertain the potential for a free and uncoerced

election. See id.

Here, the Board found the Gissel orders justified by Overnite's

"highly coercive `carrot and stick' campaign," through which Overnite granted selective wage increases to its unrepresented employees,

while communicating the futility of union negotiations and threats of

plant closures. Overnite, 329 N.L.R.B. No. 91 at 3. As the Board

recounted Overnite's wage manipulations:

[I]n March 1995, at the height of the organizational effort,

Overnite unlawfully granted its unrepresented employees an

unprecedented wage increase, just months after the employees had received their normal (January) increase. . . . At

approximately the same time that [Overnite] was illegally

rewarding its unrepresented employees, [Overnite] proclaimed in the company newsletter that "unfortunately"

employees at the "four certified centers" where the Union

had recently won Board elections "will not get these pay

increases," but "will have to wait for negotiations." . . . The

message that [Overnite's] combined actions sent to employees was unmistakably clear: they could choose to remain

unrepresented and enjoy any pay increase [Overnite] may

grant in the future, or they could vote for union representation and forego such benefits.

Id. (emphasis added).

 28
Although the March 1995 discriminatory wage increase reflected

an especially strong hostility on the part of Overnite to the Union's

organization efforts, it was not an isolated occurrence. Indeed, as the

Board concluded, in granting benefits the following year, Overnite

"again distinguished among its service centers based on their union or

nonunion status." Id. In January 1996, Overnite again unlawfully --

and publicly -- withheld its wage increases from employees at

Union-represented service centers, while distributing flyers blaming

the Union for the lower wages of those bargaining units. See id. at 3.

The Board characterized Overnite's tactics crisply:"[T]he message

was clear: company wide wage increases would not be granted to

employees who voted for the Union." Id.

While Overnite does not deny granting wage increases to its unrepresented employees in March 1995 and January 1996-- and conspicuously withholding the same from its represented employees -- it

objects to the Board's evaluation of this conduct. These wage

increases, Overnite insists, were not unlawful and were not intended

to discourage Union representation efforts, nor were they particularly

coercive in their actual impact. In this vein, Overnite objected to the

ALJ's refusal to hear the testimony of its proposed expert witness.

Had he been allowed to testify, the witness would have presented evidence purporting to demonstrate empirically that-- contrary to the

"fist inside the velvet glove" premise espoused by the Supreme Court

in NLRB v. Exchange Parts, 375 U.S. 405, 409 (1964) -- unlawful

compensation increases do not cause unions to lose elections they otherwise would win.

2.

Relying on the decision in Skyline Distributors v. NLRB, 99 F.3d

403 (D.C. Cir. 1996), Overnite further asserts that an increase in benefits should rarely serve as the primary basis for issuance of a Gissel

order. While a unilateral and discriminatory wage increase undeniably

constitutes an unfair labor practice in violation of section 8(a)(1) of

the Act, Skyline suggests that traditional remedies should not be presumed inadequate to address the effect of such an unlawful practice

on union representation. See 99 F.3d at 411-12. In essence, Skyline

takes up Overnite's challenge to the validity of the Supreme Court's

Exchange Parts decision, and it proceeds to reject the premise that a

 29
unilateral wage increase may be the sole justification for a Gissel

order.

We recognize that the premise of Exchange Parts has come under

fire, and that some courts -- including the D.C. Circuit in Skyline --

have cast aspersions on its validity as the basis for a Gissel order. We

are unable, however, to subvert either the Supreme Court's decision

in Exchange Parts or the numerous Board decisions founded on its

premise. As Justice Harlan observed, "[e]mployees are not likely to

miss the inference that the source of benefits now conferred is also

the source from which future benefits must flow and which may dry

up if it is not obliged." 375 U.S. at 409. Where, as here, unlawful

wage increases are accompanied by other unlawful practices reflecting anti-union animus, such as threats of job loss and statements about

the futility of Union negotiations, the Board was fully entitled to conclude that traditional remedies would be insufficient to ensure fair

elections at the four service centers.

Indeed, the Skyline court expressly recognized that a Gissel order

is properly issued by the Board where "the employer's [unfair labor

practices] combine an economic inducement with negative acts of

reprisal." 99 F.3d at 410; see also St. Francis Fed'n of Nurses &

Health Prof'ls v. NLRB, 729 F.2d 844, 855 (D.C. Cir. 1984) ("The

Board placed particular emphasis on the unlawful wage increase

because it affected all employees, but it also relied upon the whole litany of unfair labor practices that characterized the Hospital's antiUnion campaign -- interrogations, threats, and promises of benefits."). Given Overnite's additional violations-- in particular, its

repeated narration of the Union's frustrated negotiations in Chicago

-- Skyline's skeptical view of the impact of wage increases lacks persuasive force.

3.

Overnite included its Lawrenceville, Louisville, Norfolk, and

Bridgeton service centers in its national campaign of promises and

threats. It also committed a number of additional unfair labor practices at each of those four locations.

As the Board found, Overnite conducted a carrot and stick campaign at those facilities by repeatedly soliciting employee grievances

 30
with express or implied promises to remedy them. Overnite also consistently reminded employees that unionized employees would not

receive the March increase, but would instead have to wait for negotiations. The frustrated negotiations in Chicago were repeatedly

invoked to remind employees of Overnite's aversion to union contracts.

The additional violations were numerous and pervasive. At one or

more of the four service centers, company officials or supervisors

threatened variously that unionization would cause Overnite to lose

customers, go out of business and "shut the doors," and jeopardize

"jobs, . . . benefits, and everything." Overnite further threatened loss

of benefits, stricter discipline and work rules, and more onerous working conditions. Concurrently, Overnite was cracking down on its

employees' Union activities at the four locations by unlawful threats

of retaliation and loss of credibility, unlawful surveillance of Union

activities and impressions of surveillance, stifling of conversations

involving pro-Union employees, and unlawful restrictions on the use

of bulletin boards.

We conclude that there is substantial evidence to support the

Board's determination that the Union's majority status at the four

contested bargaining units was dissipated by Overnite's pervasive

unfair labor practices. To be "pervasive," an employer's unfair labor

practices must "be felt throughout all, or virtually all, of the bargaining unit." Be-Lo, 126 F.3d at 280. In our Be-Lo decision, we regarded

an employer's practices as not pervasive, primarily because less than

six percent of Be-Lo's workforce was directly affected by the violations. 126 F.3d at 281. In sharp contrast, Overnite's nationwide, publicized, and repeated violations were felt throughout virtually all of

the employer's operations. As the Board found in its Order, "[a]ll

bargaining unit employees were directly affected by[Overnite's] misconduct." Overnite, 329 N.L.R.B. No. 91 at 3 (emphasis added).

D.

1.

Although there is no question that Overnite was guilty of a litany

of serious and pervasive misconduct and continuing violations of the

 31
Act, the issuance of a Category II bargaining order requires the Board

to go beyond a mere finding that the employer engaged in unfair labor

practices. The Board must also make specific findings as to the "immediate and residual impact of the unfair labor practices on the election process." Appletree I, 608 F.2d at 997 (citations and internal

quotations omitted). The Board is to undertake "a detailed analysis"

assessing the possibility of holding a fair election in terms of any continuing effect of misconduct, the likelihood of recurring misconduct,

and the potential effectiveness of ordinary remedies. Id. "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." Be-Lo, 126 F.3d at

281.

In this regard, Overnite asserts, relying on our decision in Be-Lo,

that the passage of four years, coupled with the departure of forty percent of its employees and high turnover in the company's management, combined to diminish the continuing impact of its unfair labor

practices. Overnite insists that the Board erred in refusing to consider

these factors as controlling evidence for a determination that fair elections are still possible.

2.

We must reject Overnite's contentions. We conclude that there is

substantial evidence in this record supporting the Board's determination that the time lapse between the violations and the remedy did not

militate against issuing the Gissel orders. The Board accurately

observed that the four-year lapse did "not approach the time found to

render the Gissel orders stale in some cases." Overnite, 329 N.L.R.B.

No. 91 at 6. Given the size and complexity of the underlying proceedings, one must expect -- and accommodate -- the"ordinary institutional time lapse . . . inherent in the legal process." Id. (quoting

Intersweet, Inc. v. NLRB, 125 F.3d 1064, 1068 (7th Cir. 1997)). It is

true that, in some situations, a four year lapse may be entirely sufficient to permit a fair election. See, e.g., Be-Lo, 126 F.3d at 282 ("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."). However, in light of the

severe and pervasive nature of the violations found to have been com-

 32
mitted by Overnite in this case, the Board did not err on this point.

We will not disturb the Board's careful determination that the circumstances "fully warrant[ed] the issuance of bargaining orders as a necessary and appropriate means of effectuating the policies of the Act."

Overnite, 329 N.L.R.B. No. 91 at 6.

3.

We are similarly convinced that the Board did not err in concluding

that Overnite's unfair labor practices had a "continuing impact" on the

four service centers, notwithstanding that some employee turnover

had occurred. In its Order, the Board emphasized its policy of assessing the situation at the time the unfair labor practices were committed,

rather than considering personnel shifts that followed the misconduct.

Id. "Otherwise," the Board reasoned,"the employer that has committed unfair labor practices of sufficient gravity to warrant the issuance

of a bargaining order would be allowed to benefit from the effects of

its wrongdoing." Id.

Although Overnite claims that the Board's position in this case differs from the approach we endorsed in Be-Lo, 126 F.3d at 282, the

facts underlying the two cases are easily distinguishable. In Be-Lo,

there was a turnover rate of over sixty-six percent, see id. at 283,

whereas, in this case, the majority of employees exposed to Overnite's violations remain at the company and would recall those events.

Overnite, 329 N.L.R.B. No. 91 at 5. Moreover, while employee turnover is among the factors to be considered, it is by no means dispositive of the "continuing impact" inquiry. It is, instead, "just one more

factor . . . that militates against the substitution of a Gissel order for

the more desirable means of ascertaining employee preferences

embodied in a representation election." NLRB v. Apple Tree Chevrolet, Inc., 671 F.2d 838, 842 (4th Cir. 1982) (Apple Tree II). Where,

as here, severe and pervasive unfair labor practices linger in the memories of the majority of Overnite's current employees, the company's

attribution of error to the Board is misplaced.

4.

Finally, Overnite points to Union victories in 1996 and 1997 at

three other facilities -- Toledo, Memphis, and Cincinnati -- as evi-

 33
dence that free and fair elections were a possibility, thus negating the

need for the Board to issue its Gissel orders. In effect, Overnite argues

that the Union's election victories in some bargaining units undermines the Board's determination that the company's unfair labor

practices would have a continuing impact on the Union's representation efforts elsewhere. The Board maintains, conversely, that the

Union's ability to prevail in three isolated elections does not imply

that a free and fair election could occur at the four service centers at

issue in this case. In the Board's view, circumstances may exist that

would allow the Union to be particularly robust in some bargaining

units, even though Overnite's unfair labor practices would consistently tend to inhibit the Union's support.

Again, it is the Board's position that "[i]t is the objective tendency

of the unfair labor practices to undermine union support that is critical, not the actual effect of the unfair labor practices." Overnite, 329

N.L.R.B. No. 91 at 6 n.26. Citing this principle approvingly, the ALJ

stated that "evaluating the situation as of the time of the commission

of the unfair labor practices appears better than lengthy, additional

hearings to determine employees' subjective states of mind." Id. at 63.

We are persuaded that there is substantial evidence to support the

Board's issuance of Gissel orders at each of the four contested service

centers. The propriety of those orders is not impugned by several

anomalous Union successes elsewhere. Although the issuance of Gissel orders in this case is supported by Overnite's pervasive national

and unit-specific violations, the choice of remedy is a matter peculiarly suited for the Board, largely dependent on unit-specific conditions. The Board could reasonably conclude that Overnite's unlawful

conduct would have a "continuing impact," warranting issuance of

Gissel orders at Lawrenceville, Louisville, Norfolk, and Bridgeton.

On the other hand, conditions at service centers where the Union

eventually won elections differed in material respects from conditions

at the Gissel locations, which allowed Union support to withstand the

erosive effects of Overnite's unlawful conduct. That the Union was

able to survive Overnite's unfair labor practices-- and its nationwide

anti-union animus -- at selected locations does not detract from the

Board's finding that such practices have an objective tendency to

undermine Union support.

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IV.

The Supreme Court in Gissel articulated the role of bargaining

orders in remedying past election damage, as well as deterring future

misconduct. See 395 U.S. at 612. As Justice Harlan observed:

If an employer has succeeded in undermining a union's

strength and destroying the laboratory conditions necessary

for a fair election, he may see no need to violate a ceaseand-desist order by further unlawful activity. The damage

will have been done, and perhaps the only fair way to effectuate employee rights is to re-establish the conditions as

they existed before the employer's unlawful campaign.

Id.

This proceeding presents just such a scenario. Faced with Overnite's egregious violations of the Act, the ALJ and the Board concluded that the Category II elements were satisfied at the four

contested service centers. The Union had, in each instance, enjoyed

pre-election majority status which had been dissipated by Overnite's

pervasive misconduct. Because such misconduct left only a slight

possibility of ensuring fair elections, the Board determined that

employee sentiment would, on balance, be better protected by issuance of Gissel orders. Informed as it was by the Board's unique

expertise and by the exhaustive findings of the ALJ, we find the

Board's Order supported by substantial evidence, and we decline to

disturb it. The petition of Overnite accordingly will be denied, and the

Board's cross-application will be granted.

PETITION FOR REVIEW DENIED AND

CROSS-APPLICATION FOR ENFORCEMENT GRANTED

NIEMEYER, Circuit Judge, dissenting:

In representation elections at all four of the Overnite Transportation Company work sites that have been made the subject of this case

-- Lawrenceville, Georgia; Louisville, Kentucky; Norfolk, Virginia;

and Bridgeton, Missouri -- the Union lost. Finding that the outcomes

 35
of these elections were affected by unfair labor practices, the National

Labor Relations Board, instead of ordering new elections, issued "category II" Gissel orders, as authorized by NLRB v. Gissel Packing Co.,

395 U.S. 575, 613-14 (1969), directing Overnite to bargain with the

Union despite the fact that: (1) the elections had taken place over four

years before; (2) approximately 40% of Overnite's workforce had

since left its employ; and (3) the Board had certified as fair the elections during the same period at numerous other sites.1 Explaining why

bargaining orders, instead of new elections, were necessary, the Board

stated, "it is difficult to believe that the impression made by [Overnite's] barrage of serious unlawful conduct . . . could have dissipated

in the minds of those employees . . . and that the virulence of [Overnite's] response to the previous election campaign would not restrain

employee free choice in second elections." J.A. 1613.

On review of the Board's order, the majority opinion, rather than

reviewing the order against the standards applicable in this circuit for

review of Gissel orders, see Be-Lo Stores v. NLRB, 126 F.3d 268 (4th

Cir. 1997); NLRB v. Appletree Chevrolet, Inc. , 608 F.2d 988 (4th Cir.

1979) ("Appletree I"), merely reiterated, in expanded form, the

Board's position, concluding that it agrees with the Board. Unfortunately, in adopting this approach, the majority has denied Overnite the

review to which it is entitled under our precedent. When measured

against our precedent, it becomes readily apparent that the Board

could not justify, on this record, its determination to issue mandatory

bargaining orders in lieu of ordering new elections. See Be-Lo, 126

F.3d at 274-75.

I

It is the strong preference of our national labor policy not to impose

collective bargaining representatives on employees except when they

have, by a majority vote, elected to be so represented. See NLRB v.

Apple Tree Chevrolet, Inc., 671 F.2d 838, 840 (4th Cir. 1982) ("Apple

_________________________________________________________________

1 The General Counsel had sought Gissel 1 bargaining orders at 17 locations where the Union had lost representation elections, but a settlement

resolved most of the disputes. The General Counsel dismissed three or

four other complaints because the Union concluded it could win new

elections at those sites.

 36
Tree II"). Because "an election, not a bargaining order, remains the

traditional, as well as the preferred, method for determining the bargaining agent for employees," Appletree I, 608 F.2d at 996, "the

extraordinary and drastic remedy of forced bargaining pursuant to

[Gissel] is reserved for only the most unusual cases." Be-Lo, 126 F.2d

at 273 (internal quotation marks and citations omitted). We have concluded that in this disfavored situation -- where an employer is

directed to bargain without the benefit of an election -- the Board

must "support its order with detailed record evidence" and not with

the recitation of "conclusions by rote without factual explanation." Id.

(quoting Appletree I, 608 F.2d at 997). Thus, "[w]hile we accord the

Board respect as to its choice of remedies because of its presumed

expertise, we exercise less deference and require scrupulous specificity from the Board when it issues mandatory bargaining orders on the

authority of [Gissel]." Id. at 274 (internal quotation marks and citations omitted).

II

In this case, the Board did not, and could not on the evidence in

the record, fulfill the requirements for scrupulous specificity

demanded by our precedents. Indeed, if its analysis had been complete, it would have had to come to terms with the fact that Overnite's

national policies could not have supported Gissel orders at four locations when elections were certified as fair at numerous other locations. A few examples of the Board's analysis amply demonstrate its

lack of specificity.

It is to be recalled that the elections took place in the spring of

1995. The relevant misconduct took place in that time frame, as well

as during Overnite's introduction of a national wage and benefits

increase in the spring of 1996. Because several years passed before

the Board issued its order directing Overnite to bargain with the

Union, the Board was required to "make a detailed analysis assessing

the possibility of holding a fair election in terms of any continuing

effect of misconduct, and the potential effectiveness of ordinary remedies." Appletree I, 608 F.2d at 997 (internal quotation marks and citations omitted). We noted in Be-Lo that "the adverse effects of all but

the most egregious unfair labor practices become dissipated with the

passage of time," 126 F.3d at 282 (internal quotation marks and cita-

 37
tions omitted), and that the alternative remedy of a new election is

much preferred, id. at 274. In this case, the Board could not have

found, and did not find, the misconduct so "egregious" as to justify

a "category I" Gissel order. It likewise could not and did not conduct

the detailed analysis required for a "category II" order. Rather, it dismissed any such requirement with the simple conclusion that it had

"considered the inadequacy of other remedies." J.A. 1615; see also

J.A. 1614 (containing the Board's comment, without demanding

direct evidence, that the passage of time in this case was shorter than

that found in other cases to render a Gissel order "stale").

In the same vein, despite our instruction that the Board "carefully

analyze, in record findings, the continuing impact" of the 1995-96

violations, Be-Lo, 126 F.3d at 281 (internal quotation marks and citations omitted), the Board could not make such findings on this record

where such evidence is lacking. Consequently, the Board simply

observed as a matter of logic that the wage increases of 1995 and

1996 "regularly appear in employees' pay checks," and constitute "a

continuing reminder that `the source of benefits now conferred is also

the source from which future benefits must flow and which may dry

up if not obliged.'" J.A. 1611 (quoting NLRB v. Exchange Parts Co.,

375 U.S. 405, 409 (1964)). It does not explain how these wage

increases could affect some locations -- the four in question here --

but not others where it approved elections in favor of the Union.

Again, on employee turnover, the Board ignored the law of this circuit. In Be-Lo we noted "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." 126 F.3d at 282 (internal quotation marks and citations omitted).

We explained that when former employees have moved on and new

workers have been hired, the issuance of a bargaining order "risks

unjustly binding new employees to the choices made by former ones."

Id. at 282-83 (quoting J.L.M., Inc. v. NLRB , 31 F.3d 79, 84 (2d Cir.

1994)). Notwithstanding this state of the law in our circuit, the Board

declined to open the record for Overnite's proffered evidence of an

employee turnover of approximately 40%. The Board stated that it

"traditionally does not consider turnover among bargaining unit

employees in determining whether a bargaining order is appropriate."

J.A. 1613. It went on to rationalize its decision by concluding gener-

 38
ally, again without factual support in the record, that the 60% of the

employees who still worked for Overnite would continue to recall the

misconduct and "new employees may well be affected by the continuing influence of [Overnite's] past unfair labor practices." J.A. 1613.2

Finally, the Board relied on precedent that we have rejected. We

have noted that "[a]bsent 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." Be-Lo , 126 F.3d at 283. Despite

this ruling, the Board has chosen to follow a contrary Fifth Circuit

case, Bandag, Inc. v. NLRB, 583 F.2d 765, 772 (5th Cir. 1978), in

which that court indicated that "[p]ractices 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." The Board relied on

this case without even citing the Fourth Circuit's Be-Lo decision,

which governed. J.A. 1613.

In short, the Board has explicitly rejected material requirements

that we have imposed for issuing Gissel orders in this circuit, and the

majority opinion in this case, unfortunately, has not only approved,

sub silentio, the Board's approach, it has parroted the Board's conclusory statements in order to affirm.

III

Because Gissel bargaining orders bypass the democratic process,

the approval of such drastic orders without satisfying ourselves that

new elections could not remedy the unfair labor practices found by

the Board leads to an undermining of a fundamental labor law policy

of democratic representation. For these reasons I would grant Over-

_________________________________________________________________

2 This generalized statement makes little sense when it is recognized 2 

that during the Union's organizing effort, it won eight elections and

agreed to dismissal of several of the General Counsel's other Gissel

cases because it believed it could win elections at those sites. It won

three of four elections in those cases, and at the fourth, where the Union

lost by two votes, the Board certified the election as fair.

 39
nite's petition for review and deny the Board's cross-petition for

enforcement. Accordingly, I respectfully dissent.

 40