CORRECTED OPINION

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FIELDCREST CANNON, INCORPORATED,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

No. 95-2658

Respondent,

UNION OF NEEDLETRADES, INDUSTRIAL

AND TEXTILE EMPLOYEES, AFL-CIO,

CLC,

Intervenor.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v. No. 95-2829

FIELDCREST CANNON, INCORPORATED,

Respondent.

On Petition for Review and Cross-Application for Enforcement

of an Order of the National Labor Relations Board.

(11-CA-14494, 11-CA-14584, 11-CA-14643, 11-CA-14723,

11-CA-14730, 11-CA-14735, 11-CA-14771, 11-CA-14815,

11-CA-15006, 11-RC-5776)

Argued: May 8, 1996

Decided: September 26, 1996

Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL,

Circuit Judges.
Enforcement granted in part and denied in part by published opinion.

Chief Judge Wilkinson announced the judgment of the court and

wrote the majority opinion in parts I through IV, in which Judge

Michael joined. Judge Luttig joined in the judgment denying enforcement of the salary differential aspect of the Board's order. Chief

Judge Wilkinson wrote a concurring opinion. Judge Luttig wrote an

opinion dissenting in part. Judge Michael wrote an opinion concurring

in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: Charles Preyer Roberts, III, HAYNSWORTH,

BALDWIN, JOHNSON & GREAVES, Greensboro, North Carolina,

for Fieldcrest. John Harlan Fawley, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for NLRB. David Malcolm

Prouty, UNION OF NEEDLETRADES, INDUSTRIAL AND TEXTILE EMPLOYEES, AFL-CIO, CLC, New York, New York, for

Intervenor. ON BRIEF: Frederick L. Feinstein, General Counsel,

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

Associate General Counsel, Howard E. Perlstein, Deputy Assistant

General Counsel, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for NLRB. Jonathan R. Harkavy, PATTERSON,

HARKAVY & LAWRENCE, Greensboro, North Carolina, for Intervenor.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

The National Labor Relations Board found that Fieldcrest Cannon,

Inc. had committed more than 100 violations of the National Labor

Relations Act during a union organization campaign at its facilities in

Cabarrus and Rowan Counties, North Carolina. Fieldcrest offers three

responses to these findings: (1) that the ALJ's credibility determinations were biased in favor of the union; (2) that the Board's findings

on the various violations were not supported by substantial evidence;

and (3) that a portion of the Board's remedy, which required Field-

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crest to offer union employees the same pay raise given to non-union

employees, exceeded the Board's power. We agree with the Board

that substantial evidence supports the great majority of violations

found here and we reject the company's claims that the agency proceedings were impermissibly biased. We agree with Fieldcrest, however, that the discharges of Ronald Pharr, Earl White, and Cathy

Thompson did not run afoul of the Act. We also agree with Fieldcrest

that the Board was without authority to alter the salary increase

agreed to by Fieldcrest and the union during collective bargaining.

For these reasons, we enforce the Board's order in part and deny

enforcement in part.

I.

Fieldcrest manufactures linens at both union and non-union plants

throughout the southeastern United States. In 1986, Fieldcrest purchased Cannon Mills, a major competitor with 11,000 non-union

employees located in Cabarrus and Rowan Counties, North Carolina.

On June 12, 1991, the Amalgamated Clothing and Textiles Workers

Union sought to organize 6000 employees at these facilities.

The election campaign was hotly contested, and Fieldcrest took an

aggressive approach to convincing employees to vote against the

union. Fieldcrest's campaign literature was graphic. One flier showed

a mushroom cloud and the words: "There's more than one way to

destroy a community. VOTE NO." Another showed a closed mill

with the words: "The plant was unionized by ACTWU. The plant was

closed for economic reasons in 1985." Yet another showed workers

standing outside a gate near a sign that said "closed." Its caption read:

"In the past decade, scores of textile plants have closed in North Carolina. Thousands of workers have lost their jobs . . . Vote NO union."

Over the course of the campaign and in its aftermath, union supporters suffered numerous incidents of hostility. There were unlawful

interrogations, such as when supervisors Reganna Earwood and Ruth

Blalock brought Reginald Turner into an office and questioned his

support for the union. They suggested that he change his mind by

signing a card, which would withdraw his support from the union.

When Turner hesitated, he was told that he already had "two points

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against him" and that failure to sign the card would put him "right out

the door."

There were also threats of reprisal if employees voted for the

union, such as supervisor James Allman's statement that Fieldcrest

would move to Mexico if the union prevailed, supervisor Windy

Black's assertion that the union's activity would postpone a scheduled

pay raise, and supervisor Ted Godfrey's warning that Fieldcrest

would strictly enforce its rules if the union prevailed. The threats also

appeared on fliers. One Spanish language flier warned: "If you sign

the [union card] and the Government finds out about it, you will be

deported or sent to prison."

Employees who supported the union were harassed. While Fieldcrest supervisors Tammy Fox, Eddie Gurley, and Diane Neely distributed pro-company literature during employees' working time,

employees who distributed union literature had their literature seized

and were admonished that they could lose their jobs. Supervisors also

sought to intimidate union activists by monitoring their work and personal activities though they had not been monitored before the campaign and non-union workers were not so monitored. For example,

after the union campaign started, supervisor Perry Harkey tracked

union activist Tony Bumgarner "every hour on the hour, watch in his

hand." After Terry Smothers' wife wrote a pro-union op-ed piece for

the local newspaper, Smothers' movements were restricted to one

floor so that his activities could be monitored. Before his wife's

column was published, Smothers freely assisted technicians throughout two floors. Conspicuously, when the union campaign ended,

Smothers was allowed to return to his usual duties.

Employees were also punished for their union activities. The day

after Sherry Anthony announced her support for the union, she was

prohibited from taking coffee breaks outside of her section. Another

union supporter, Oreida Clarke, lost her responsibilities as a Spanish

language translator because company officials were concerned about

what she might tell Spanish speaking employees. And union supporter

Sylvia Crawford was removed as a tour guide for new employees--

until the union campaign ended.

Ten employees lost their jobs. Elboyd Deal, a 30-year veteran, was

disciplined and discharged for speaking out on behalf of the union

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and for, in the words of supervisor James O'Kelly, acting as the "ringleader" of the organization campaign. At one point, O'Kelly said

bluntly: "You see what your union badge is doing for you, Mr. Deal."

The representation election was held on August 20 and 21, 1991.

The final tally showed 3443 votes for the company, 3053 votes for the

union, and 307 unresolved challenged ballots. Upon losing the election, the union alleged that the company unlawfully discriminated

against 20 employees and committed approximately 109 violations of

the Act.

On September 9, Fieldcrest implemented a 5.5% wage increase at

its non-union plants. On September 17, Fieldcrest and the union

entered into collective bargaining to discuss wages and benefits at the

unionized facilities. Fieldcrest initially proposed a 4% wage increase

while the union sought a 6% increase. By September 27, Fieldcrest's

offer stood at 4.25% and the union's counteroffer at 5.5%. On

November 4, all benefit issues had been resolved, but the union continued to claim that its employees were entitled to at least the same

wage increase received by non-union employees. When the parties

met again on January 12, 1992, Fieldcrest increased its offer to 4.5%,

and the union accepted.

The union thereafter brought a complaint under the Act. It claimed

that Fieldcrest violated the Act by its conduct during the organization

campaign, and also by refusing to grant union workers the same wage

increase received by non-union employees. Both claims were consolidated in a single proceeding before an Administrative Law Judge.

Trial began on March 31, 1992 and concluded on January 25, 1993.

The testimony of 256 witnesses extended over 36 days of hearings.

On March 1, 1994, the ALJ issued his opinion. He uniformly found

in favor of the union on issues of credibility and held that Fieldcrest

had engaged in more than 100 unfair labor practices. The Board

affirmed the ALJ's conclusions. It ordered a new election, required

that injured employees be reinstated and made whole, and directed the

company to cease and desist from unfair labor practices. The Board

also ordered Fieldcrest to grant its union employees the same 5.5%

pay raise given to non-union employees and to return to the bargain-

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ing table over the terms and conditions of employment. Fieldcrest

now appeals.

II.

Fieldcrest lodges various objections to the fact-finding process in

this case, which we shall consider in turn.

A.

Fieldcrest first presents statistical arguments, which it claims prove

that the ALJ's method for determining the credibility of witnesses

was biased. Fieldcrest notes that the ALJ credited all of the general

counsel's witnesses and none of its own; this, it claims, demonstrates

bias. Our review shall not be driven, however, by an overall statistical

balance of whose witnesses received credit and whose did not. To do

so would amount to judging a case by some mechanical formula

rather than the merits of the evidence. After all, such statistics do not

inform us whether "a credibility determination is unreasonable, contradicts other findings of fact, or is `based on an inadequate reason or

no reason at all.'" NLRB v. McCullough Environmental Services, Inc.,

5 F.3d 923, 928 (5th Cir. 1993) (citation omitted).

Fieldcrest also argues that the ALJ's prior record in other cases

indicates a bias in favor of labor unions. Fieldcrest cites statistical evidence showing that this ALJ has ruled against employers on 105 of

108 section 8(a)(3) allegations and on 550 of 589 total allegations.

The Board counters by noting that of the ALJ's prior 79 cases, courts

have reviewed only 16, and of these 16, courts have fully enforced 13.

We will not rate a judge, however, by the percentage of times he or

she rules on a given side of a case. To evaluate an ALJ's impartiality

in this way amounts to judging his record by mere result or reputation. In reality, such statistics tell us little or nothing. Fieldcrest's

numbers do not tell us whether the ALJ decided individual cases correctly, and the Board's figures do not tell us why, in 63 cases, the losing party chose not to appeal.

We shall set aside the statistics. Instead, we shall examine the factfinding in this case to assess whether the record as a whole supports

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the ALJ's determinations. A decision-maker's ruling deserves to rise

or fall on the case at hand, not on the results in other cases that have

little bearing upon the issues before us.

B.

We thus turn to the instant case. The credibility determinations that

Fieldcrest challenges here were the product of lengthy and thorough

proceedings during which each party had an ample opportunity to

present its respective position to the ALJ. The testimony occupied 36

days of hearings. There were 83 witnesses presented by the NLRB

general counsel, 154 by Fieldcrest, and 19 by the union. The testimony of these 256 witnesses filled more than 7800 transcript pages.

The ALJ's decision reflects careful consideration of this voluminous testimony. In the ALJ's lengthy, 93-page, single-spaced opinion,

he took pains to spell out each violation, the evidence supporting the

violation, and his reasons for ruling as he did. His examination of one

episode illustrates the care he took. Drenia Smith, an employee,

alleged that her supervisor, Terry Burris, threatened her. The ALJ first

reviewed Drenia Smith's testimony that Burris said that the union

would mean "friendships would be lost, that people would fire bomb

houses, and that there would be strikes and violence," that picket-line

crossers would be beaten, and that "the plant would close down." The

ALJ then summarized Burris' testimony:

Burris agreed that he had a conversation with Drenia Smith

early in the campaign. He agreed that he told Smith that

trouble seemed to follow unions, and that it was possible

that he told her he had seen reports of firebombing and violence.

Finally, the ALJ analyzed the two witnesses' testimony. He discussed

whether Smith's testimony had been elicited with leading questions,

and determined that it had not. After discussing how Burris' testimony corroborated many of Smith's allegations, the ALJ ultimately

credited Smith's testimony.

The ALJ's review of other testimony was similarly meticulous.

Reviewing courts owe deference to such factual findings, assessing

 7
them only to determine whether they are supported by substantial evidence. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-91

(1951). When factual findings rest upon credibility determinations,

they should be accepted by the reviewing court absent "exceptional

circumstances." NLRB v. Air Products & Chemicals, Inc., 717 F.2d

141, 145 (4th Cir. 1983). Exceptional circumstances include cases

where "a credibility determination is unreasonable, contradicts other

findings of fact, or is `based on an inadequate reason or no reason at

all.'" McCullough, 5 F.3d at 928 (citation omitted). Only in such a situation is a reviewing court "free to review the record and independently reach [its] own conclusions." McCullough, 5 F.3d at 928.

Otherwise, careful fact finding, such as that undertaken in this case,

is entitled to respect.

C.

Fieldcrest next contends that the ALJ improperly credited witnesses who testified against Fieldcrest on the basis of their employment status. Fieldcrest notes that on 55 occasions, the ALJ credited

38 witnesses in this manner. In particular, Fieldcrest objects to the

ALJ's statement that union employees' testimony was entitled to

"considerable weight" in credibility determinations because "it is

unlikely that a current employee will testify falsely against his

employer." In L.S. Ayres v. NLRB, this court rejected such a conclusion, holding that "the fact that a witness is an employee at the time

that he testifies adversely to his employer is at most only a factor

bearing on his credibility and one entitled to little weight." 551 F.2d

586, 588 (4th Cir. 1977) (emphasis added). In Standard-CoosaThatcher Carpet Yarn Div. v. NLRB, we reiterated that "the mere fact

that an employee exposes himself to retaliation by testifying against

his employer has little bearing on credibility." 691 F.2d 1133, 1138

(4th Cir. 1982), cert. denied, 460 U.S. 1083 (1983) (emphasis added).

The reason for the Ayres holding is not difficult to discern. It is just

as likely that an employee testifying against his employer is also testifying in his own self-interest as a union supporter. As the court

pointed out in Ayres, an employee "may be strongly motivated to

establish an employer unfair labor practice." 551 F.2d at 588 n.3.

Employees could be so motivated because of their involvement with

the union. Or they might have been subject to discipline from the

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company, and the finding of an NLRA violation could potentially

insulate them from any sanction.

While we thus agree with Fieldcrest that the ALJ erred in giving

more than a "little" weight to a witness' status as an employee, that

does not end the Ayres inquiry. As demonstrated in Standard, such an

error does not necessitate denial of enforcement if"the record adequately supports the administrative law judge's credibility determination." 691 F.2d at 1138. In Standard, the company's witness never

denied mentioning the union in his warning. The court found that the

absence of a direct denial sufficiently supported the ALJ's credibility

determination, despite the ALJ's reliance on the witness' employment

status.

In other cases dealing with questions of credibility, we have also

enforced the Board's orders notwithstanding concerns over the possibility that the ALJ gave more than a "little" weight to the witness' status as an employee in determining credibility. See Ayres, 551 F.2d at

588; Air Products, 717 F.2d at 141. In Ayres, this court enforced the

Board's order because "substantial evidence supports at least some of

the findings of violation of § 8(a)(1)." 551 F.2d at 587. We explained

there that "full consideration to the other indicia of credibility should

be given." Id. at 588. In Air Products, we found similarly, holding

that the ALJ sufficiently relied upon other indicia of credibility

including "the absence of direct denials by Employer's witnesses, the

demeanor of the witnesses, [ ] the situation surrounding the election

campaign," and other corroborating testimony. 717 F.2d at 145-46.

All of the other indicia of credibility described in Air Products

were present here. Quite apart from the employment status of those

testifying, there was sufficient evidence for the ALJ to credit the great

majority of the union's witnesses. First, the ALJ repeatedly noted the

absence of direct denials on the part of company witnesses. For

instance, Graciela Whitley testified that supervisor James Allman told

her not to "sign papers for the union" and said that if the union wins,

"we will have to move the company to Mexico." The ALJ noted that

Whitley's testimony was particularly clear. Most importantly though,

Allman did not refute the charges. Whitley's testimony was thus

appropriately credited.

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On some occasions, the relevant company witness even failed to

take the stand. Oreida Clarke alleged that the company posted a notice

in Spanish threatening workers with deportation if they signed union

cards. Though this allegation was partially credited because of her

employment status, the ALJ also noted that the company's witnesses

who denied posting such a notice did not "include all supervisors who

may have done so." Accordingly, the ALJ concluded that the company's "evidence does not directly rebut Clarke's testimony that she saw

the notice."

The testimony of company witnesses also suffered from comparative vagueness. Comparative vagueness was central to the credibility

determination involving current employee Brenda Lyles, who testified

regarding threats of plant closure made by supervisor Howard Hall.

While the ALJ did mention Lyles' employment status, he also compared the witnesses' respective recall. Supervisor Hall could "hardly

remember the conversation," but Lyles offered detailed testimony. As

a result, the ALJ ultimately concluded that Lyles should be credited

because she "had much better recall of this conversation."

Inconsistency was yet another problem for the company's witnesses. For example, supervisor Perry Harkey denied spending additional time on the floor monitoring employees, yet he simultaneously

admitted that management had ordered him "to be available for

employees' questions." The ALJ noted that because Harkey would

have had to spend more time on the floor to be available for employees' questions, Harkey's denial that he was spending more time on the

production floor undermined his credibility. Consequently, the ALJ

credited current employee Tony Bumgarner's testimony that Harkey

had monitored union employees.

Absence of denial, comparative vagueness, and internal inconsistency are factors that may legitimately bear on an ALJ's decision to

credit a company or a union witness. Over the course of his opinion,

the ALJ noted that the union witnesses' testimony stood unrebutted

on 34 occasions. Likewise, the ALJ mentioned the inconsistent or

contradictory nature of company testimony at least 20 times.

To a lesser extent, the ALJ also relied on the demeanor of witnesses, another factor bearing on credibility determinations. Air

 10
Products, 717 F.2d at 145. The ALJ stated on the first page of his

opinion, "On the basis of . . . my observation of the demeanor of the

witnesses, I make the following findings of fact." While presumably,

every one of the ALJ's credibility determinations hinged on the

demeanor of the witnesses, he specifically cited demeanor on two

occasions. With regard to Reginald Turner, who testified that his

supervisor threatened to fire him if he supported the union, the ALJ

cited Turner's "demeanor" and found his testimony "more truthful"

than the company's witness. Discussing another witness, who denied

that Fieldcrest's offer of discounted merchandise to employees was

designed to influence the forthcoming union election, the ALJ

explained that the company witness' "demeanor was not that of a

trustworthy witness."

Even where demeanor was not specifically mentioned, it appears

to have supported the ALJ's credibility determinations. Though

Sandra Greene's testimony (regarding Windy Black's threats that

employees would not receive a pay raise because of the union) was

credited because she was a current employee, the ALJ also noted that

"Greene was a more truthful witness than Black." And Sharon Davis,

who testified that supervisor Don Hancock had monitored union

employees, was regarded as a more "credible witness" than Hancock.

As the Seventh Circuit explained, "Credibility . . . is a function not

only of what a witness says but of how a witness says it." NLRB v.

Overnite Transportation Co., 938 F.2d 815, 819 (7th Cir. 1991).

While some of the ALJ's assessments of demeanor are certainly general, the balancing of witnesses' testimony is at the heart of the factfinding process, and it is normally not the role of reviewing courts to

second-guess a fact-finder's determinations about who appeared more

"truthful" or "credible."

Moreover, the ALJ was not remiss in observing that the representation campaign as a whole was marked by an atmosphere of intimidation and hostility toward the union. Fieldcrest posted signs showing

a locked gate accompanied by the words: "What do Fieldcrest

Cannon's Bedspread Mill and Sheeting Mill in Eden have in common? Both plants were unionized by ACTWU. Both plants were

closed due to economic conditions." Other fliers detailed the loss of

jobs at Fieldcrest's unionized plants, contained pictures of abandoned

facilities, and, as noted earlier, depicted a nuclear explosion with the

 11
words "There's more than one way to destroy a community. VOTE

NO." An atmosphere of reprisal and recrimination against union supporters may provide a context for evaluating the testimony of witnesses and no doubt enhanced the credibility of those who were

accusing the company of violations.

Finally, there was also substantial corroborating testimony to support the ALJ's credibility determinations. When current employee

Peggy Jordan testified that managers Buck Reese and Harold Roseman threatened the loss of current benefits if the union was voted in,

her testimony was also corroborated by other witnesses. The ALJ

noted that Jordan's testimony was decidedly similar to "statements

made to employees by other supervisors." Given the cumulative

weight of different witnesses alleging nearly identical incidents, Jordan's credibility was enhanced. The ALJ relied on similar corroborating evidence no less than 49 times over the course of his opinion.

The above examples constitute no more than a sampling, but they

are sufficient to demonstrate how the ALJ approached his task. He

erred in relying on the employee status of the witnesses before him,

but there is a great deal of other evidence supporting the conclusions

that he reached. We are not prepared to set at naught findings that are

solidly grounded in the evidence. Standard, 691 F.2d at 1138. The

ALJ's opinion provides a detailed discussion of why the union witnesses' testimony was more persuasive than the testimony offered by

Fieldcrest's witnesses. As a result, it is proper to conclude that the

record here "adequately supports the administrative law judge's credibility determination[s]." Id.

D.

In sum, Fieldcrest's attack on the ALJ's credibility determinations

misses the forest for the trees. Its attack upon the ALJ fails ultimately

to divert attention from the central point of this litigation: the overwhelming evidence against Fieldcrest. The vast majority of the 100

plus violations here were not only supported by substantial evidence.

The whole of this case is greater even than the sum of its respective

parts. Fieldcrest's threats and reprisals against union adherents

included:

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unlawful interrogations; a threat of discharge if a union

withdrawal card was not signed; threats of lost benefits;

threats of disciplinary action; threats of termination; threats

of plant closure if employees selected the union; the posting

of a threat of deportation to Spanish-speaking employees if

they signed union cards; threats of other reprisal; harassment; an order to wear a pro-employer t-shirt; threats of

more stringent enforcement of the rules if the union was

selected; assignment of additional work; closer monitoring

and surveillance of union employees; restriction of union

members' movement; prohibiting employees from engaging

in conversation about the union; disparate treatment; and

various warnings and discharges that appeared to stem in

part from the employees' union activities.

See Fieldcrest-Cannon, Inc. and Amalgamated Clothing and Textile

Workers Union, 318 N.L.R.B. No. 54 (August 25, 1995).

While it is difficult to convey the full weight of the case against

Fieldcrest merely by listing violations and discussing a few examples,

the Board concluded that Fieldcrest's unfair labor practices were

"numerous," "pervasive," "outrageous," "egregious," and "notorious."

The Board member who dissented on minor aspects of the case

agreed with the majority that "the number and pervasiveness of the

Respondent's unfair labor practices warrant remedies beyond those of

the ordinary case." (Board Member Stephens, concurring in part). So

too did the ALJ conclude that Fieldcrest "`has engaged in such egregious and widespread misconduct as to demonstrate a general disregard for employees' statutory rights.'" (quoting Hickmott Foods, 242

N.L.R.B. 1357 (1979)). The record reveals that this is not a strong

case from the company's standpoint. While it is assuredly lawful for

a company to oppose the unionization of its workforce, see 29 U.S.C.

§ 158(c), Fieldcrest simply adopted a scorched earth, take-noprisoners approach to stop unionization without regard to statutory

limitations. The cumulative evidence in this case amply supports the

ALJ's determinations--the kind of ground-floor determinations by a

fact-finder to which we would be obliged to defer even under less

condemning circumstances.

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III.

The broad picture does not, of course, relieve this court from the

obligation to review Fieldcrest's challenge to individual findings of

discrimination in violation of § 8(a) of the Act. 29 U.S.C. § 158(a)

("It shall be an unfair labor practice for an employer (1) to interfere

with, restrain, or coerce employees in the exercise of [their] rights

. . . (2) to dominate or interfere with the formation . . . of any labor

organization . . . (3) [discriminate] in regard to the hire or tenure of

employment or any term or condition of employment to discourage

membership in any labor organization . . . (4) to discharge or otherwise discriminate against an employee because he has filed charges

. . . (5) to refuse to bargain collectively"). While the majority of those

findings are supported by substantial evidence, three are not. Ronald

Pharr, Earl White, and Cathy Thompson were all discharged for misconduct unrelated to the union campaign. Accordingly, these employees were not entitled to relief under the Act.

A.

Ronald Pharr was discharged for refusing to take a breathalyzer

test. One of Pharr's coworkers, Rosie Robinson, complained to supervisor Percy Smith that Pharr was harassing her. Smith then

approached Pharr, and according to Smith, Pharr was"really smelling" of alcohol. According to Pharr, Smith said:"Ron, I smell alcohol

on your breath and I'm going to give you a breathalyzer." After Pharr

wandered around the plant for some time and failed to report to the

testing room (presumably to diminish his blood alcohol content),

Pharr allowed himself to be escorted off the premises without ever

submitting to a blood alcohol test. At the hearing, Pharr admitted that

he had consumed beer immediately before work. Pharr also testified

about two prior incidents of alcohol abuse at Fieldcrest: (1) he came

to work "smelling kind of strong" of alcohol and was warned by

Smith; (2) he drank so much Cisco (a fortified wine which "gets you

high pretty quick") that he had to be sent home sick because he was

too "dizzy" to work. Pharr's criminal record also includes injuring

real property and two assaults, one of a government official. Given

Pharr's own testimony, his termination had nothing to do with the

union campaign and everything to do with his own misconduct.

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B.

Earl White was discharged for disruptive behavior while working

as a probationary employee. White's behavior was reported from several sources and ranged from murderous threats to sexual harassment.

Co-worker Ivey Mosely testified that White had threatened to "shoot"

another employee. And White's supervisor, Jimmy Allen, received at

least three complaints regarding White's violent nature: (1) that White

argued with Harold Caldwell and threatened to kill him; (2) that

White threatened Kevin Glasco with bodily harm; and (3) that White

intended to harm Abraham Mincer. Fieldcrest was also legitimately

concerned about White's behavior around women. Co-worker Patsy

Jamerson testified that White would "grab" women and "touch them"

and "say sexual--sometimes sexual remarks to them." Roslyn Hemphill testified that she endured such harassment and had complained

on two occasions to Allen. The cumulative weight of this testimony

suggests that White's termination was not related to his union activity.

C.

Cathy Thompson was discharged for running her towel machine

without towels in it, thereby increasing her production and pay.

Thompson admitted on the witness stand that she had cheated on production before, and her company records reflected two prior warnings

for this behavior. Just before Thompson's termination, three of her

co-workers (Walter Waller, Sam Jallah, and Kelly Walker) reported

Thompson to supervisor Reganna Earwood, each alleging that

Thompson was cheating on production. According to Walker,

Thompson managed more than 500 false runs every night. As a result

of these complaints, Earwood eventually caught Thompson cheating

on the machine. Given this evidence, we do not think that Thompson's termination had anything to do with the union campaign.

As the discharge of these three employees did not amount to a violation of section 8(a)(3) of the Act, we decline to enforce that portion

of the Board's order that required Pharr, White, and Thompson to be

reinstated and made whole.

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IV.

We next turn to the question of remedy. The Board's order provided an extensive list of remedies in addition to the reinstatement

and compensation of those employees who had been discriminatorily

discharged or disciplined. The Board ordered that Fieldcrest: (1) hold

a new election off-premises; (2) cease and desist from the unfair labor

practices; (3) rescind unlawful company rules; (4) supply the union

with names and addresses of its non-union employees; (5) allow the

union reasonable access to its bulletin boards; (6) grant the union

access to nonwork areas during employees' nonwork time; (7) allow

the union to respond to company speeches regarding the issue of representation; (8) afford the union the right to deliver a 30-minute

speech to employees on working time prior to the election; (9) post

notices at its plants of the Board's findings; (10) publish the notices

in various company newsletters and local newspapers; (11) mail the

notices to employees; and (12) require a company representative to

read the notice to its employees. We agree with the Board that, under

the extraordinary circumstances of this case, these steps did not

amount to an abuse of the Board's remedial power. See Monfort, Inc.

v. NLRB, 965 F.2d 1538 (10th Cir. 1992). We do not suggest that

these steps would be appropriate in every case.

V.

We enforce the Board's order with the exception of those aspects

relating to Ronald Pharr, Earl White, and Cathy Thompson and those

portions addressing the pay raise differential between Fieldcrest's

union and non-union employees. As to those matters, we deny

enforcement.

ENFORCEMENT GRANTED IN PART AND DENIED IN PART 

WILKINSON, Chief Judge, concurring:

I write simply to express my reasons for voting to deny enforcement of that aspect of the Board's order altering the salary increase

agreed to by Fieldcrest and the union in the course of collective bargaining. A brief word of background is in order at the outset.

 16
After Fieldcrest had raised non-union employees' salaries by 5.5%,

it entered into collective bargaining negotiations with the union over

the appropriate rate at which union employees' pay should be

increased. Fieldcrest initially sought the figure of 4% and the union,

6%. As the negotiations progressed, Fieldcrest increased its figure to

4.25% and the union decreased its request to 5.5%, before they eventually agreed to 4.5%. In the end, therefore, the non-union employees

received a 5.5% salary increase and the union employees, a 4.5%

increase.

The Board, in its order addressing the 1% difference between the

two pay increases, required that Fieldcrest make whole its unionrepresented employees by extending to them the 5.5% salary increase

granted to non-union employees. It also ordered Fieldcrest to resume

bargaining with the union over the "terms and conditions of employment." As both of these remedies constitute improper attempts by the

Board to influence the outcome of collective bargaining, they exceed

the Board's power as outlined by the Act and by Supreme Court precedent. See H.K. Porter Co. v. NLRB, 397 U.S. 99, 103 (1970); NLRB

v. American National Insurance Co., 343 U.S. 395, 404 (1952).

Accordingly, that portion of the Board's bargaining order relating to

the salary differential between union and non-union employees cannot

be enforced.

A.

Section 8(d) of the Act states that the obligation to bargain "does

not compel either party to agree to a proposal or require the making

of a concession." 29 U.S.C. § 158(d). Pursuant to this section, the

Supreme Court has consistently held that the Board shall not be

allowed to influence the results of collective bargaining. This is

because the "object of the Act was not to allow governmental regulation of the terms and conditions of employment, but rather to ensure

that employers and their employees could work together to establish

mutually satisfactory conditions." H.K. Porter, 397 U.S. 99 at 103.

Accordingly, the Board cannot "directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements." American National, 343 U.S. at 404.

The Board's order that Fieldcrest extend the salary increase given

to non-union employees to its union employees was improper. The

 17
Supreme Court rejected precisely such an order in H.K. Porter, which

was "the first time in the 35-year history of the Act that the Board [ ]

ordered either an employer or a union to agree to a substantive term

of a collective-bargaining agreement." 397 U.S. at 106. In that case,

the Board found that the employer's failure to agree to a union

demand for union dues checkoff was not in good faith, and it ordered

the company to grant the union's request. The Supreme Court, however, held that the Board lacked the remedial authority under the Act

to require the employer to accept any particular term: "while the

Board does have power under the National Labor Relations Act to

require employers and employees to negotiate, it is without power to

compel a company or a union to agree to any substantive contractual

provision of a collective-bargaining agreement." Id. at 102. In short,

"the results of the contest" should be left to"the bargaining strengths

of the parties." Id. at 108.

This circuit has followed H.K. Porter when facing circumstances

similar to those presented here. In Clearwater Finishing Co. v. NLRB,

670 F.2d 464, 466 (4th Cir. 1982), the company refused to agree to

the union's bargaining demand for a retroactive pay increase which

had already been granted to non-union employees. The Board found

that the company lacked good faith and required it to grant the retroactive pay increase to union employees. This court disagreed, explaining that "the Board's order that the Company grant the proposed wage

increase retroactively is beyond the scope of its authority as set out

in H.K. Porter." Id. at 468.

The Board in this case similarly exceeded its authority. Here, as in

Clearwater, the Board altered the terms of a pay raise, a substantive

element of a collective bargaining agreement. Fieldcrest and the union

had negotiated over a period of four months, and each had proposed

at least three different figures for the pay increase. In fact, the Board's

order here is even more intrusive than the ones rejected in Clearwater

and H.K. Porter. In this case, the parties actually had agreed to a pay

raise of 4.5%. The Board thus did more than side with one party's

position in ongoing negotiations; it dictated a change to the pay raise

already agreed upon by both parties. This, the Act clearly does not

allow. H.K. Porter, 397 U.S. at 102.

That portion of the Board's order that would require Fieldcrest and

the union to renegotiate the agreed-upon salary increase of 4.5% must

 18
likewise be rejected. As the Supreme Court explained in American

National, "Congress provided expressly that the Board should not

pass upon the desirability of the substantive terms of labor agreements." 343 U.S. at 408-9. This would certainly be the result if the

Board could order the parties to renegotiate a term already agreed to

by the parties during collective bargaining. Moreover, such an order

is tantamount to dictating the terms of the agreement. The Act, of

course, does not allow such a result. Id.; see also H.K. Porter, 397

U.S. at 102.

B.

The Board, however, contends that its imposition of collective bargaining terms was justified because Fieldcrest's offer of a 4.5% salary

increase to the union lacked good faith. Section 8(d) of the Act

requires that parties "confer in good faith with respect to wages,

hours, and other terms and conditions of employment," 29 U.S.C.

158(d), and negotiate "with the view of reaching an agreement if possible." NLRB v. Highland Park Mfg. Co., 110 F.2d 632, 637 (4th Cir.

1940); see also NLRB v. Katz, 369 U.S. 736, 747 (1962) (the parties

shall not possess "a cast of mind against reaching agreement"). While

Fieldcrest maintains that the existence of an actual agreement is itself

proof that it entered into negotiations with the good faith intention of

reaching agreement, the Board and the union offer various reasons for

why this is not so. I shall address each of those arguments in turn.

1.

The Board contends that Fieldcrest's record of unfair labor practices demonstrates that Fieldcrest did not intend to bargain in good

faith with the union. While the Board is correct that courts have

looked outside of the negotiations for activity indicative of "a cast of

mind against reaching agreement," Katz, 369 U.S. at 747; see

Radisson Plaza Minneapolis v. NLRB, 987 F.2d at 1376, 1381 (8th

Cir. 1993), these cases involved attempts to ascertain whether the bargaining constituted a "`charade or sham [intended] to avoid reaching

an agreement.'" Radisson, 987 F.2d at 1381 (quoting Continental

Insurance Co. v. NLRB, 495 F.2d 44, 48 (2nd Cir. 1974) (emphasis

added). Such inquiries, however, are pointless when the parties have

already reached agreement. Here, the agreement itself proves the

 19
good faith of the parties: if the parties had no intention of reaching

an agreement, no agreement would have been reached.

2.

The union maintains that the existence of an agreement cannot

itself prove good faith because parties may reach an agreement in the

absence of good faith. The union suggests that it conceded to Fieldcrest's term merely so that it could litigate Fieldcrest's bargaining

position--and of course, so that it could give its workers an immediate wage increase of 4.5%. Essentially, the union claims that Fieldcrest lacked good faith because it had no future intention of

continuing to bargain had the union rejected the 4.5% term. But we

have no way of knowing what Fieldcrest would have done had the

union either refused that offer or gone on strike. Violations of the Act

cannot be based on speculation. While it is true that further delay in

reaching a pay increase (or the initiation of a strike) might have

undermined support for the union at Fieldcrest, a party may not use

the courts to circumvent the collective bargaining process. After all,

tough give-and-take is part of collective bargaining, and it was ultimately the union's choice to accept the offer on the table or continue

to negotiate.

3.

The union also contends that Fieldcrest's failure to offer the 5.5%

raise to union employees during the negotiations (or perhaps, even to

use this figure as the starting point for the negotiations) demonstrates

an absence of good faith. The Board itself has noted, however, that

"regarding the grant of new benefits to unrepresented workers, the

most that can be said is that the Act may impose on the employer the

duty to bargain with respect to providing the new benefits to represented employees." B.F. Goodrich Co., 195 N.L.R.B. 914, 915

(1972); see also H.K. Porter, 397 U.S. at 102; Winn-Dixie Raleigh,

Inc., 267 N.L.R.B. 231, 236 (1983).

The flaw in the union's argument here is apparent when one considers the hypothetical opposite case, where Fieldcrest attempts to

impose on the union the same pay increase granted to non-union

employees. Had Fieldcrest, for example, given non-union employees

 20
a 3.5% pay increase, certainly Fieldcrest could not have unilaterally

imposed that increase on the union; the union would have wanted the

opportunity to bargain for the 4.5% raise. In fact, this was precisely

what the union tried to accomplish here. The union initially sought

not the 5.5% given to non-union employees, but rather, a higher salary increase, 6%.

While the union assumes that its employees will always be at least

as well off as non-union employees, collective bargaining entails the

risk that they will be worse off. Presumably, when employees vote for

union representation, they are making a prediction that more often

than not, they will be better off. But certainly, there is no guarantee

that this will be true in every case. As the Supreme Court explained

in H.K. Porter:

the Act as presently drawn does not contemplate that unions

will always be able to secure and achieve agreement even

when their economic position is weak, or that strikes or

lockouts will never result from a collective bargaining

impasse. It cannot be said that the Act forbids an employer

or a union to rely ultimately on its economic strength.

397 U.S. at 109.

The union's failure to obtain its desired increase of 6% was ultimately the consequence of its lack of economic strength. In recent

years, the percentage of unionized employees at Fieldcrest had

decreased from 65% of its employees to less than 25%. Moreover, the

union had agreed to salary increases of 4%-4.5% from Fieldcrest's

competitors. Most importantly, though, the union publicly disavowed

the viability of a strike and even promised Fieldcrest's employees that

it would not strike. Given these circumstances, the threat of a strike

was no longer credible, and the realities of the bargaining process

determined the ultimate result.

4.

The Board also contends that the good faith inquiry must include

the underlying motivation for reaching an agreement. For instance, if

 21
Fieldcrest's motive for pursuing the 4.5% term included the desire to

undermine the union, the Board would presumably find an absence of

good faith. Again, while evidence of such motives might be useful to

prove the existence of a "`charade or sham [intended] to avoid reaching an agreement,'" Radisson, 987 F.2d at 1381 (quoting Continental

Insurance Co., 495 F.2d at 48 (emphasis added), the parties reached

agreement here.

Moreover, the Board's assumption that certain motivations somehow invalidate collective bargaining agreements is a questionable

one. Consider Fieldcrest's potential motives for the salary differential:

discouraging unionization at its other plants; taking advantage of the

union's unusually weak bargaining position; recompensating its coffers for previous pay increases to union employees; saving funds in

anticipation of future pay increases; or giving union employees a

lower pay increase than non-union employees because union members receive other costly benefits (benefits that non-union employees

may not receive). All of these are merely aspects of the same overarching motive that always controls the company's position: the maximization of profit. As the Seventh Circuit explained, the company

that does "whatever it can to maximize its profits by minimizing its

labor costs invites a test of strength with its unions. It does not commit an unfair labor practice." Graphic Communications Union v.

NLRB, 977 F.2d 1168, 1171 (7th Cir. 1992).

The union's varied motivations for seeking a 6% pay increase

appear equally irrelevant to the validity of the bargaining. Perhaps the

union sought to one-up the non-union pay raise to further its campaign at Fieldcrest's other facilities and thus to enlarge its membership. Is it an absence of good faith for a union to want more than what

the company considers a "fair" pay increase? Of course not. Whatever

the union's underlying motive(s) may have been for seeking 6%, the

union was merely attempting to improve the condition of its membership.

It is precisely this fundamental conflict between the rational interests of the company and those of the union that necessitates collective

bargaining in the first place. And ultimately, so long as the parties are

actually bargaining (and no charade exists), one need not be concerned about various motives affecting the negotiations--the ultimate

 22
agreement will always reflect the parties' legitimate bargaining

strength. As reliance on one's bargaining strength was precisely what

Congress intended when it passed the Act, this cannot substantiate the

absence of good faith. H.K. Porter, 397 U.S. at 108.

In sum, the Board should have respected the outcome of the collective bargaining process.

LUTTIG, Circuit Judge, dissenting in part:

One cannot possibly read the record and the administrative law

judge's decision at issue in this case without being left with the

impression that, whether through a series of innocent legal errors or,

as Fieldcrest Cannon contends, through manifest pro-Union bias, the

ALJ never gave Fieldcrest a chance to have its defense to the Union's

claims fairly considered. Indeed, the opinion upon which the Company's substantial liability is now predicated appears as nothing more

than a series of rationalizations for a predetermined finding of liability

against the Company. For example, after conducting some 36 days of

hearings, which consume more than 7800 pages of transcript, the ALJ

ended up crediting the testimony of nearly every single one of the 100

witnesses who appeared on behalf of the Union and discrediting the

testimony of nearly every single one of the 150 witnesses presented

by the Company, finding approximately 130 violations of the

National Labor Relations Act from among the 130-plus violations

alleged by the Union. As the majority notes, the comparative numbers

of witnesses credited by a factfinder cannot, in itself, serve as a measure of the correctness of a decision. At the same time, however, we

cannot be naive to the real possibility in this instance that, contrary

to the majority's uncritical assumption, the ALJ's wholesale crediting

of the Union's witnesses and corresponding discrediting of the Company's witnesses was more than simply the happenstance result of a

dispassionate consideration of the substantive testimony of the 250

witnesses in question. Regardless of whether it was merely a composite of innocent errors or outright bias against the Company that

resulted in the decision we review herein, the ALJ's conclusions, and

consequently the judgment of the Board, are wholly insupportable in

law. Accordingly, although I join in the judgment rejecting the

Board's order of a retroactive salary increase for the Company's

 23
union employees, I dissent from the majority's affirmance of the

Board's liability determinations.

The ALJ's errors are various and sundry, but three broad categories

of errors combine to confirm the palpable unfairness of the proceeding below. First, in direct contravention of this court's precedent, the

ALJ uniformly credited those employee-witnesses who testified on

the Union's behalf, merely because they were employees of Fieldcrest

Cannon; second, the ALJ found violations of the National Labor

Relations Act in many incidents that are not, as a matter of law, even

colorable violations of the Act; and third, the ALJ based many of his

findings of violation on no evidence whatsoever, merely inferring certain violations of the Act from what he erroneously found to be management animus toward the Union.

The first and foremost error of the ALJ was that, in direct contravention of this court's precedent, he weighted heavily the testimony

of Fieldcrest employees who testified against the Company, merely

because they were employed by the Company. In L.S. Ayres & Co.

v. National Labor Relations Bd., 551 F.2d 586 (4th Cir. 1977), we

held that, "the fact that a witness is an employee at the time that he

testifies adversely to his employer is at most only a factor bearing

upon his credibility and one entitled to little weight unless it is established that he does not know that he is protected in testifying." Id. at

588 (emphases added). In direct disregard of Ayres, the ALJ expressly

and repeatedly held that the testimony of current employees was entitled to "considerable weight" because, he reasoned, it was "unlikely

that a current employee will testify falsely against his employer." J.A.

at 61 & n.12. Representative are the following: that, "[t]he testimony

of [Angela] Coleman, a current employee, [was] entitled to considerable weight," J.A. at 61; that Eric Strickland's"status as a company

employee at the time of his testimony ma[de] it unlikely that he testified against his Employer's interest," J.A. at 61-62; that Sandra

Greene "was a current employee at the time of her testimony, and for

that reason, it is unlikely that her testimony was false," J.A. at 62; that

Benny McIntyre's "testimony, as a current employee, [was] entitled

to considerable weight," J.A. at 64; that "it[was] unlikely that the[ ]

testimony [of employees Terros Brown and Johnny High] against the

interests of their employer was false," J.A. at 66; that Drenia Smith's

status as a current employee "enhance[d] her credibility," J.A. at 67;

 24
that, "[a]s a current employee, it [was] unlikely that [Brenda Lyles]

testified falsely against her Employer's interest," J.A. at 68; and that

Oreida Clarke's "trustworthiness [was] augmented by her status as a

current employee," J.A. at 69. In fact, the ALJ expressly credited

employee witnesses due solely or partially to their employment status

some 50 times (and, likely, implicitly in many others), clearly a sufficiently large number of instances such that it is impossible to affirm

the ALJ's conclusions as the majority does. See J.A. at 61 (Angela

Coleman), 61 (Eric Strickland), 62 (Sandra Greene), 64 (Benny McIntyre), 66 (Johnny High & Terros Brown), 67 (Drenia Smith), 68

(Brenda Lyles), 69 (Oreida Clarke), 76 (Sandra Greene), 77 (Tony

Bumgarner), 77 (Sharon Davis), 78 (Joanne Diggs & Sylvia Crawford), 78 (Drenia Smith, Pat Boger, & Sheila Deal), 78 (Vicki Fink),

79 (Angela Coleman), 83 (Terry Smothers), 83 (Sherry Anthony), 84

(Sylvia Crawford), 87 (Sharon Davis), 88 (Benny McIntyre), 88

(Peggy Jordan), 89 (Euretha Lee, Sherry Anthony, & Paula Brice), 89

(Sharon Davis), 90 (Wade Story), 92 (Sharon Davis), 93 (Eric Strickland), 94 (Vickie Fink), 94 (Kemberly Watts), 95 (Brenda Harrell &

Cynthia Hanes), 95 (Patricia Boone), 102 (Jenny Vires & Daniel

Vires), 103 (Oscar Clark), 103 (Patsy Turner & Barbara Cook), 103

(Patsy Turner), 104 (George Cochran), 104 (Wilbert Williams & John

Rossner), 105 (Cynthia Hanes), 105 (Sharon Davis), 105 (Drenia

Smith), 105 (Clafter Jackson), 115 (Diana Hamilton), 143 (Norma

Chapman).

The majority acknowledges that the ALJ erred by crediting witnesses based solely on their status as employees, but concludes that

there are "other indicia of credibility" which render the error harmless. There are no such "other indicia of credibility" evident in the

record before us. Tellingly, even the majority is able to identify, from

the scores of incidents at issue, only a meager seven or eight examples which supposedly confirm that there were alternative reasons for

presuming the truthfulness of the pro-Union witnesses' testimony and

presumptively discrediting the Company witnesses' testimony. And,

in fact, not one of even these noticeably few examples supports the

majority's conclusion.

The majority cites two examples of the "absence of direct denials

by company witnesses" in support of its claim that there were other

indicia of reliability for the ALJ's impermissible crediting of pro-

 25
Union witnesses. Neither example supports its conclusion. In the first

of these, the incident between James Allman and Graciela Whitley,

ante at 9, although the ALJ did note that supervisor "Allman did not

testify," the ALJ did not even rely on that fact in crediting Whitley,

nor did he mention that fact in his "factual and legal discussion." J.A.

at 66. In any event, this was not an incident in which the ALJ explicitly credited a witness based on his employee status. In the second

incident, Oreida Clarke alleged that the Company posted a Spanish

notice threatening workers who signed union cards, ante at 10, but,

as the ALJ himself noted, "all of the Company's witnesses denied

posting any Spanish notice, much less one of the nature described by

Clarke." J.A. at 69. Of course, contrary to the majority's conclusion,

the fact that not all of the Company's supervisors testified does not

render Clarke's testimony unrebutted. Compare ante at 10 ("[T]he

company's witnesses who denied posting such a notice did not

`include all supervisors who may have done so.'" (quoting J.A. at 69)

(emphasis added)).

The majority cites but a single example of the "comparative vagueness" of the Union's witnesses vis-a-vis the Company's witnesses,

ante at 10, and, likewise, this example does not support the majority's

assertion that there were alternative reasons for crediting the witnesses improperly credited by the ALJ. Whether or not supervisor

Howard Hall "could hardly remember" the details of the conversation

between himself and Brenda Lyles, ante at 10, Hall, as even the ALJ

conceded, "denied saying anything about plant closure and added that

supervisors had been warned against making any such statements."

J.A. at 68.

Similarly, it is impossible to discern in the majority's lone example

of "internal inconsistency" of Company witness testimony any inconsistency at all, much less one that would justify the crediting of Union

witness testimony over Company witness testimony. In that example,

supervisor Perry Harkey simply denied that he spent additional time

on the floor in order to fulfill his added responsibilities to "be available" to answer employee questions during the election. There is

nothing even arguably inconsistent in this testimony; indeed, the

ALJ's finding (without explanation) that Harkey's testimony was

inconsistent because he could not have fulfilled his added responsibil-

 26
ity to "be available" for questions without increasing his time on the

floor, J.A. at 77, is nothing short of silly.

The "substantial corroborating testimony" which the majority

would have one believe supports the ALJ's credibility determinations,

ante at 12, is not corroborating testimony at all. For example, when

a supervisor and an employee agreed that a conversation took place

or that an incident occurred, but disagreed as to what was said or what

occurred, the ALJ, consistent with the manner in which he conducted

the balance of the hearing, found that the agreement partially corroborated the employee's testimony. See, e.g., J.A. at 64, 103.

"To a lesser extent," the majority relies upon witness demeanor evidence assertedly relied upon by the ALJ in making credibility determinations, and it cites four examples of the ALJ's supposed reliance

on such demeanor evidence. Ante at 10-11. Even the majority must

concede, however, that, in two of these instances, the ALJ himself did

not even cite demeanor as a reason for his crediting of the Union's

witnesses. Of course, even when the ALJ did rely upon demeanor, it

cannot possibly be known whether the ALJ would have credited the

pro-Union witnesses' testimony on the strength of demeanor alone,

had the ALJ not impermissibly accorded those witnesses' testimony

considerable weight at the outset.

Finally, the majority holds that the "atmosphere of reprisal and

recrimination against union supporters" justified the ALJ's presumption of truthfulness with regard to Union employees, ante at 12. Obviously, even if such an atmosphere existed, this alone would be no

ground for crediting, as a matter of law, one party's witnesses over

another's. To uphold the ALJ's findings on this ground is to relieve

the Union altogether of its burden to prove violations of the Act.

In sum, contrary to the majority's assertion, there is simply no

basis in the record for sustaining the ALJ's findings, in the face of his

conceded error in presuming the truthfulness of all pro-Union

employee witnesses and the contrary of all Company witnesses.

Wholly apart from the ALJ's erroneous crediting of the Union's

employee witnesses over the Company's witnesses, the ALJ found

egregious violations of the NLRA where, as a matter of law, there

 27
were not even colorable violations. Illustrative is the first "violation"

described by the ALJ. There, supervisor Diane Hartis handed out procompany t-shirts to employees who asked for them. J.A. at 58.

Employee Sylvia Crawford asked Hartis for a shirt, and Hartis said

"[f]ine" and gave her one. Id. When Hartis learned that Crawford

intended to deface the shirt, she told Crawford,"[i]f you search in

your heart, will you please just give the shirt back." Id. Hartis also

said, "I don't want to be made a fool of." Id. Crawford admitted that

some of the employees were defacing the shirts and told Hartis that

she would give the shirt back to Hartis if she changed the slogan. Hartis replied, "Please give it back," and Crawford later returned the shirt.

Id. On the basis of these exchanges alone, the ALJ concluded that

Hartis "coercively interrogated Crawford about her union sentiments."

Id. Of course, Hartis' request that Crawford return the shirt rather

than deface it was not even arguably coercion or interrogation in violation of section 8(a)(1).

The ALJ even found that the Company violated the Act when it

remedied or promised to remedy employee grievances, J.A. at 95-98,

and when it held grievance meetings for employees. The utter ridiculousness of the ALJ's findings is perhaps best summed up in the following passage, in which the ALJ described M.D. Ford's "violation"

of the NLRA:

Ford's own testimony establishes that his meetings with

employees after the advent of the union campaign increased

markedly over the number of asserted meetings prior to that

time. There is no question, as Ford admitted, that he asked

employees about their concerns and problems.

J.A. at 96 (emphasis added). And, unfortunately, similar examples of

the ALJ's errors abound throughout the record.

Finally, as if to add insult to injury, the ALJ inferred countless violations from the Company's "extraordinary animus" and "widespread

violations," both of which he found to exist only because he improperly credited all of the Union's witnesses and otherwise misread section 8(a). Most notably, the ALJ relied on these unwarranted

presumptions to establish prima facie cases that protected conduct

was a motivating factor in the Company's discipline or discharge of

 28
pro-union employees. J.A. at 110, 112, 114, 116, 117, 119. In fact, the

ALJ sometimes relied exclusively on anti-union animus to establish

such prima facie cases. J.A. at 110, 112.

Thus, at bottom, the ALJ's errors in this case are so egregious and

pervasive that it cannot possibly be said that the record offers substantial evidence for his findings. In holding to the contrary, the majority

has, for purposes of this case at least, redefined our role in the review

of such ALJ findings into an empty act of pro forma ratification.

I respectfully dissent.

MICHAEL, Circuit Judge, concurring in part and dissenting in part:

I readily concur in parts I through IV of the majority opinion. I

respectfully dissent, however, from the majority's holding (in part V)

that the Board exceeded its authority in ordering Fieldcrest to grant

its union workers the same wage increase the company unilaterally

and discriminatorily granted its workers in unrepresented plants. I dissent to that extent because I believe substantial evidence in the record

as a whole supports the Board's finding that Fieldcrest violated

§ 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3),

and because the Board has "the primary responsibility and broad discretion to devise remedies that effectuate the policies of the Act, subject only to limited judicial review." Sure-Tan, Inc. v. NLRB, 467 U.S.

883, 898-99 (1984) (interpreting NLRA § 10, 29 U.S.C. § 160).

Moreover, the majority's holding on the pay remedy is inconsistent

with our own precedent and creates an inadvisable split of authority

between us and our sister circuits.

I.

Since 1978 Fieldcrest's practice with respect to wage increases had

been to negotiate a wage increase for its union-represented plants first

and afterward to give the same increase to its non-union plants.1 The

_________________________________________________________________

1 There were only a few immaterial departures from this practice. In

1987 and 1988 Fieldcrest employees at certain newly-acquired plants

received a smaller wage increase in order to standardize their pay with

 29
Board found that as part of a campaign to discourage union membership at other plants, Fieldcrest (in 1991) departed from its usual and

customary practice of handling wage increases. Specifically, before

entering into wage negotiations with the union, it unilaterally granted

a 5.5 percent wage increase to workers who were not represented by

the union. Fieldcrest granted this increase even though the company

had lost money in the first part of the year. In wage negotiations

Fieldcrest refused to offer the same wage increase to represented

workers, offering only a 4.5 percent increase.2

The Board found that numerous Fieldcrest supervisors told

employees at the unrepresented plants that they received their larger

wage increase as a reward for defeating the union. Supervisors at

union plants told employees that they were denied a pay increase

because they were at a union plant. One supervisor said that the company insisted on the smaller wage increase "to discredit the Union and

try to drive it out of the mill." The Board found:

[Fieldcrest's] discriminatory departure from its practice of

granting identical wage benefits to its represented and

unrepresented employees indicates [Fieldcrest's] desire to

frustrate bargaining and to "undermine and destroy" the

Union. [Fieldcrest's] extreme [anti-]union animus is further

evidenced by the numerous unfair labor practice violations

_________________________________________________________________

the pay scale of employees at the plants the company already owned. In

1986 the company delayed implementation of a pay increase at union

plants due to a dispute over how third-shift pay should be handled. In

1981 a wage increase in union plants was delayed due to a dispute over

payment of insurance premiums. The Board's finding that these scattered

incidents were not material alterations in Fieldcrest's wage increase policy is supported by substantial evidence in the record as a whole. See

NLRA § 10(e), 29 U.S.C. § 160(e).

2 The concurring opinion characterizes the wage increase disparity as

a "1% difference." Conc. Op., ante at 17. Although the disparity is a one

percentage point difference when total wages are compared, the magnitude of the disparity is much greater when the amounts of the increases

are compared to each other. Non-union employees got a raise that was

22 percent higher than union employees.

 30
discussed in the [administrative law] judge's decision. Such

a pattern of discriminatory conduct is inconsistent with

good-faith bargaining, and reflects [Fieldcrest's] determination not to reach agreement with the Union.

In addition, [Fieldcrest's] agents made statements both during and outside the negotiations which strongly suggested

that its wage-increase proposals to the Union were intended

both to punish the Union for its attempts to organize the

unorganized plants and to undermine any further attempts at

organization. These statements came from the highest levels

of [Fieldcrest's] management as well as several supervisors

on the shop floor.

Fieldcrest Cannon, Inc., 318 NLRB No. 54, at 2-3 (1995). The Board

concluded that the company's conduct violated NLRA§§ 8(a)(1), (3)

& (5).

II.

The Board's choice of remedy must be enforced unless it is arbitrary, capricious, or manifestly contrary to the statute. ABF Freight

Sys., Inc. v. NLRB, 114 S. Ct. 835, 839 (1994) (on remedial issues

"the Board's views merit the greatest deference"); accord Sure-Tan,

467 U.S. at 898-99 (1984); Phelps Dodge Corp. v. NLRB, 313 U.S.

177, 194 (1941); Monfort, Inc. v. NLRB, 965 F.2d 1538, 1548 & n.15

(10th Cir. 1992); Conair Corp. v. NLRB, 721 F.2d 1355, 1385-87

(D.C. Cir. 1983), cert. denied, 467 U.S. 1241 (1984). Given Fieldcrest's "scorched earth, take-no-prisoners approach to stop unionization without regard to statutory limitations," Maj. Op., ante at 13,3 the

Board's chosen remedy was appropriate.

_________________________________________________________________

3 Indeed, Fieldcrest mounted "a Stalingrad defense of sorts to the threat

of unionization, fighting the Union, by any means at hand, from rock to

rock and from tree to tree." NLRB v. Horizon Air Servs., 761 F.2d 22, 29

n.5 (1st Cir. 1985).

 31
A.

I recognize that a simple violation of the duty to bargain in good

faith cannot justify the pay remedy the Board ordered. H. K. Porter

Co. v. NLRB, 397 U.S. 99, 108 (1970). If an employer refuses to bargain in good faith in violation of § 8(a)(5), the Board may order the

employer to bargain in good faith but may not compel the employer

to accept any particular union demand. The rule is intended to allow

employees and employers to make their own contract. The Board

exceeds its authority when it attempts to write the parties' contract for

them. NLRB v. Insurance Agents Int'l Union, AFL-CIO, 361 U.S.

477, 488 (1960); NLRB v. American Nat'l Ins. Co. , 343 U.S. 395, 404

(1952). "[W]hile the Board does have power . . . to require employers

and employees to negotiate, it is without power to compel a company

or a union to agree to any substantive contractual provision of a

collective-bargaining agreement." H.K. Porter , 397 U.S. at 102.

"[T]he duty to bargain collectively does not carry with it the duty to

reach an agreement." Id. at 104 (quoting S. Rep. No. 573, 74th Cong.,

1st Sess., 12 (1935)). This rule is embodied NLRA§ 8(d), which provides that

to bargain collectively is the performance of the mutual

obligation of the employer and the representative of the

employees to meet at reasonable times and confer in good

faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement,

or any question arising thereunder, and the execution of a

written contract incorporating any agreement reached if

requested by either party, but such obligation does not compel either party to agree to a proposal or require the making

of a concession.

I also recognize that in Clearwater Finishing Co. v. NLRB, 670

F.2d 464, 468 (4th Cir. 1982), we reaffirmed the rule barring the

Board from "ordering agreement" on contract terms. The majority's

refusal to enforce the pay remedy would therefore be correct if all

Fieldcrest had done was violate its duty to bargain in good faith.

Fieldcrest, however, did more.

 32
B.

The Board additionally found that Fieldcrest's creation of an

unprecedented wage disparity amounted to a completely separate kind

of unfair labor practice: discriminatory withholding of a "wage

increase from its represented employees in order to discourage support for the Union." Fieldcrest Cannon, Inc. , 318 NLRB No. 54, at

3; see also id. at 3 n.5 ("when, as here, an employer has always

treated wages on a company-wide basis and deviates from that policy

during collective-bargaining negotiations in a context of statements to

the effect that employees are being punished for having selected

union representation, the conduct violates Sec. 8(a)(5), (3), and (1)")

(concurring statement of Member Stephens). Discriminatory withholding of wages, regardless of whether those wages also are the subject of negotiation, separately violates § 8(a)(3) of the National Labor

Relations Act, and the Board so found.4 The majority has simply

ignored this portion of the Board's decision.

The Board did not order Fieldcrest to grant its union employees a

wage increase to redress the violation of NLRA § 8(a)(5) (breach of

duty to bargain in good faith). Instead, the Board imposed the remedy

to redress Fieldcrest's intentional violations of NLRA § 8(a)(3) (discrimination motivated by a desire to discourage union membership)

and NLRA § 8(a)(1) (interference with protected concerted activity).5

Indeed, the concurring opinion recognizes that Fieldcrest's aim in

refusing its represented workers the wage increase it gave to unrepresented workers was "discouraging unionization at its other plants."

_________________________________________________________________

4 NLRA § 8(a)(3) prohibits"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 "Protected concerted activity" means the exercise of any right guaranteed by NLRA § 7, 29 U.S.C. § 157, including:

the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their

own choosing, and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or protection, and . . . the right to refrain from any or all such activities

except [with respect to certain union shop requirements, if negotiated pursuant to NLRA § 8(a)(3)].

 33
Ante at 22. Creating a wage disparity with the motive of discouraging

unionization is a clear violation of the National Labor Relations Act.

Acme Die Casting v. NLRB, 26 F.3d 162, 166-67 (D.C. Cir. 1994);

Peabody Coal Co. v. NLRB, 725 F.2d 357, 366-67 (6th Cir. 1984);

Eastern Maine Medical Ctr. v. NLRB, 658 F.2d 1, 7-8 & n.4 (1st Cir.

1981); South Shore Hosp. v. NLRB, 630 F.2d 40, 44-45 (1st Cir.

1980), cert. denied, 450 U.S. 965 (1981); Parma Indus., 292 NLRB

90, 1988 WL 214278 at *1-2 (1988). "By effectively announcing to

[represented workers] that they would be excluded from any increase,

the [employer] . . . discredited and disparaged the Union in the eyes

of its members" in violation of § 8(a)(3). Rocky Mountain Hosp., 289

NLRB No. 138, 130 L.R.R.M. 1487, 1489 (1988) (internal quotation

marks omitted).6

The majority has not explained why an employer may shield its

discriminatory conduct from Board scrutiny simply because the acts

of discrimination occur contemporaneously with negotiations. The

majority's decision conflicts with longstanding Fourth Circuit precedent holding that the Board may order an employer to return to its

prior practices even when the union is seeking in negotiations to

encourage the employer to do so. For more than twenty years it has

been the law in this circuit that an employer may not persist in a practice that has been "appraised as discriminatory in itself" simply

because in a negotiation session the union has sought to dissuade the

employer from persisting in the unlawful practice. E.I. duPont de

Nemours & Co. v. NLRB, 501 F.2d 135, 137 (4th Cir. 1974) (per

curiam) (employer eliminated job-related privileges in represented

units but allowed unrepresented workers to retain privileges; Board

properly may order restoration of privileges and bar employer's negotiator from insisting to impasse on their elimination); NLRB v. Atlantic Int'l Corp., 664 F.2d 1231, 1233 (4th Cir. 1981) (employer

unilaterally reduced wages of union workers at time when employer

was seeking to negotiate a wage reduction; Board properly ordered

_________________________________________________________________

6 Another union, the United Textile Workers, had organized one Fieldcrest plant. Fieldcrest granted UTW-represented workers the same

increase it granted unrepresented workers. Thus Fieldcrest may also have

impermissibly favored one union over another, in violation of NLRA

§ 8(a)(2). The Board did not, however, address whether Fieldcrest violated this section.

 34
restoration of wage); cf. NLRB v. Weathercraft Co., 832 F.2d 1229,

1232 (10th Cir. 1987) (Board may order remedy "restoring the economic status quo").

As in Atlantic Int'l the Board here simply ordered "a restoration of

the status quo ante." Id. at 1233. Fieldcrest's prior policy was not to

allow any wage disparity to exist between its union and non-union

workers, but here Fieldcrest unilaterally imposed a disparity in an

avowed effort to break the union and to dislodge it from the plants it

had organized. If "deprivation" of a benefit in contravention of an

employers' past policy of granting it "would discourage the choosing

of representation by a union," the Board may order an employer to

grant the benefit, regardless of whether the union is contemporaneously seeking the same benefit at the bargaining table. E.I. duPont,

501 F.2d at 136.

In both H.K. Porter and in Clearwater , by contrast, the union was

asking for an unprecedented benefit. In H.K. Porter the union sought

check-off (i.e., automatic deduction of union dues from employee

paychecks), something the employer never had allowed in the past. In

Clearwater the union demanded both check-off and a retroactive

increase in pay. In this case the union simply asked the employer to

follow its existing policy of maintaining equivalent wages between its

union and non-union plants. The distinction between the situation

presented in Clearwater and that in duPont and Atlantic Int'l is so

straightforward that the Clearwater panel did not even cite duPont

and Atlantic Int'l.

Today's judgment on the pay issue also puts us in conflict with the

law of every other circuit that has considered the question. A circuit

split should not be created "without strong cause." Mayer v. Spanel

Int'l Ltd., 51 F.3d 670, 675 (7th Cir.) (Easterbrook, J.), cert. denied,

116 S. Ct. 563 (1995); accord Butler County Memorial Hosp. v.

Heckler, 780 F.2d 352, 357 (3d Cir. 1985). The majority does not

explain why this case is so compelling as to justify a departure from

applicable precedent in this area.

In Eastern Maine the First Circuit upheld a make-whole remedy

identical to the one ordered here. There the employer departed from

past practices and withheld from represented workers a wage increase

 35
it granted to unrepresented workers. The employer's conduct was held

to violate NLRA § 8(a)(3) because the employer created the wage disparity with the intent of discouraging union membership. Eastern

Maine, 658 F.2d at 9-10. The First Circuit expressly rejected the

employer's defense -- identical to the defense asserted here -- "that

it legitimately withheld the wage increase as an economic weapon to

improve its bargaining position." Id."[A] make whole order [ ] to

remedy a section 8(a)(3) violation [ ] is a standard type remedy in discrimination cases and does not exceed the Board's authority." South

Shore, 630 F.2d at 45 n.7; accord Pegasus Broadcasting of San Juan,

Inc. v. NLRB, 82 F.3d 511, 513 (1st Cir. 1996).

The majority's holding conflicts not only with the law of the First

Circuit but also with the law of the Seventh, the Sixth, and the District

of Columbia Circuits. In NLRB v. Thill, Inc., 980 F.2d 1137 (7th Cir.

1992), the employer made a pay increase retroactive for its unrepresented workers but refused to do so for its represented workers. The

Board found that the employer violated § 8(a)(3), and the Seventh

Circuit enforced the Board's make-whole order. Judge Posner said for

the court that the "workers' entitlement to backpay cannot be

doubted" even though the union had sought to negotiate wage

increase retroactivity. Thill, 980 F.2d at 1141. Indeed, the court held

that workers were entitled to be paid interest on the increase. Id.7 In

Peabody Coal, 725 F.2d at 366, the Sixth Circuit expressly followed

the Eastern Maine rule and enforced the Board's make-whole remedy. And the District of Columbia Circuit held, in an opinion written

by Judge Mikva, that where a wage increase given to unrepresented

workers and denied to represented workers amounted to "a deviation

from accepted prior practice" and the decision to create a wage disparity "was motivated by anti-union animus, [or by] a discriminatory

desire to discourage union membership," the Board may find a

§ 8(a)(3) violation and order the employer to make its union employees whole by granting them the same increase. Acme Die Casting, 26

F.3d at 165-66.

_________________________________________________________________

7 Graphic Communications Union v. NLRB, 977 F.2d 1168, 1171 (7th

Cir. 1992), upon which the concurring opinion relies, see ante at 22, is

inapposite because that case relates only to an employer's duty to disclose financial information to union negotiators. The Board did not find

a § 8(a)(3) violation in that case.

 36
The majority's holding on the pay remedy puts us at odds with our

own precedent and with the law of our sister circuits. Accordingly, I

respectfully dissent on that issue. Otherwise, I concur.

 37