United States Court of Appeals Fifth Circuit 

## FILED January 26, 2007 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________ No. 05-61168

____________ NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus UNITED STATES POSTAL SERVICE, Respondent.

Application for Enforcement of an Order of th e National Labor Relations Board

Before JONES, Chief Judge, DAVIS and GARZA, Circuit Judges. EMILIO M. GARZA, Circuit Judge: The National Labor Relations Board (“the Board”) seeks enforcement of a broad cease and des ist order i ssued against the United States Postal Service facility in Waco, Texas (“the Postal Service-Waco”) fo r repeated failures to respond to union info rmation requests. There is no dispute over the facts; the Postal Service concedes that numerous information request violations occurred. The only issue on review is whether th e cease and desist order is overly broad. We find t hat it is and

mo dify t he order accordingly.2 I In October 2002, th e Board fo und that the Postal Service-Waco had committed twelve vio lat io ns of th e National Labor Relations Act (“NLRA”) §§ 8(a)(1) and 8(a)(5), 29 U.S.C. §§ 158(a)(1) and 158(a)(5), by failing or refusing to furnish and/or timely furnish the postal workers’ union wit h presumptively relevant requested info rmation. In March 2003, the Postal Service-Waco inst it uted new info rmation request procedures in an attem pt to prevent fu ture info rmation request vio lat io ns. Evidence reveals that these procedures were not always followed. In July 2003, the union charged further vio lat io ns fo r failing or refusing to furnish requested info rmation. An administ rative law judge (“ALJ”) confirmed th at vio lat io ns occurred, finding th at over th e two-month period at issue, May and June 2003, th e Postal Service-Waco did not respond to fo ur of 68 information requests. Aft er th e fir st series of vio lat io ns in 2002, the ALJ impo sed a narrow cease and desist order, which prohibited th e Postal Service-Waco from violating the Act “in any like or related manner” to th e info rmation request vio lat io ns. This order would allow contempt proceedings against the Postal Service-Waco if evidence suggested it had com mit ted further info rmation request vio lat io ns. The second series of vio lat io ns, in 2003, took place prior to our enforcement of th e narrow order; that is, the narrow order was not in effect at the time the second violations occurred and contempt proceed ings were not yet available. Thus, as a result of the second series of violations, the ALJ impo sed a broader cease and desist order; this time the order prohibited the Postal Service-Waco from “[i]n any oth er manner int erfering wit h, restraining, or coercing employees in the exercise of th e rights guaranteed th em by Section 7 of the Act.” Section 7 of the NLRA, 29 U.S.C. § 157, sets out all o f t he rights of employees and provides:3

Em ployees shall have th e right to self-organizatio n, to f orm , j oin, or assist labor organizations, to bargain collectively th rough representatives of their own choosing, and to engage in oth er concerted activit ies fo r the purpose of collective bargaining or oth er mut ual aid or protection, and shall also have the right to refrain from any or all of such activit ies except to th e extent th at such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). Id. Subsequently, the Board affirmed the broad cease and desist order, over the obj ection of one board member. II A We review th e Board’s findings of fact fo r “substantial evidence.” 29 U.S.C. § 160(e) (“The findings of th e Board wit h respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.”). “Substantial evidence is ‘such relevant evidence th at a reasonable mind would accept to support a conclusion.’” V almont Indus. v. NLRB , 244 F.3d 454, 463 (5th Cir. 2001) (quoting Universal Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951)). Alt hough “[t]he NLRB's legal conclusions are reviewed de novo,” NLRB v. Thermon Heat Tracing Servs. , 143 F.3d 181, 185 (5th Cir. 1998), we review the propriety of the Board’s remedial orders under a mo re deferential standard. N LRB v. Laredo Packing Co. , 730 F.2d 405, 407 (5th Cir. 1984) (“The Board's remedial power in this regard is wide and discretionary; subject to scanty judicial review.”)

. “The Board's order must not be disturbed ‘unless it can be shown that the order is a patent attem pt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’” N LRB v. DMR Corp. , 795 F.2d 472, 477 (5th Cir. 1986) (quoting Virginia Electric & Power Co. v. NLRB , 319 U.S. 533, 540 (1942)). But the Act’s regulatory framework under which we have th e authority to review orders, NLRA § 10(e), 29 U.S.C. § 160(e), fo resees the role of the court as4

mo re th an “mere perfunctory executors of the Board’s unrestrained will.” N LRB v. Ford Motor Co. , 119 F.2d 326, 330 (5th Cir. 1941). Therefore, we will generally defer to the Board’s remedial decisions where it acts wit hin it s statutory authority , th ough we will review the Board’s o rders to

ensure th at it does not exceed th at statutory authority . S ee May Dep't Stores Co. v. NLRB , 326 U.S. 376, 392 (1945) (“While th e Board has been delegated init ially t he exclusive authority to prevent unfair labo r practices, courts, which are called upon to enforce such orders by their own decrees, may examine it s scope to see whether, on th e evidence, they go so beyo nd the authority of the Board as to requi re modification as a matter of law before enforcement.”). B The Board’s statutory authority to issue cease and desist orders stems from NLRA § 10(c), 29 U.S.C. § 160(c), which states th at where the Board determ ines a vio lat io n of the Act has occurred, “t he Board shall . . . cause to be served on such person an order requiring such person to cease and desist from such unfair labo r practice . . . as will effectuate the pol icies of this Ac t.” Id. Of this statutory provision, the Supreme Court has stated, Under § 10(c), th e Board's authority to remedy unfair labo r practices i s expressl y limit ed by th e requirement t hat its orders “ef fectuate the policies of the Act.” Alt hough this rather vague statutory com mand obviously permits the Boar d broad discretion, at a minimum it encompasses the requirement th at a proposed remedy be tailo red to the unfair labor practice it is intended to redress. Sure-Tan, Inc. v. NLRB , 467 U.S. 883, 900 (1984); s ee also NLRB v. District 50, United Mine Workers , 355 U.S. 453, 458 (1958) (“The Board's discretionary authority to fashio n remedies to purge unfair labo r practices necessarily has a broad reach. But the power is not l imit less; it is

c ontained by th e requirement th at th e remedy shall be ‘appropriate,’ and shall ‘be adapted to th e sit uation which calls fo r redress.’”) (int ernal cit ations om it ted). This is consistent with the remedial5

nature of th e Board’s authority . S ee Florida Steel Corp. v. NLRB , 587 F.2d 735, 746 (5th Cir. 1979) (“We have held many times th at th e orders of th e Board are requi red to be rem

edial and not punitive.”). Thus, the question before us is whether the cease and desist order in this case, covering the entirety of Section 7, is tailo red to th e unfair labo r practice it is intended to redress. We are aided in this task by th e extensive caselaw, both from the Supreme Court and wit hin this circuit, speaking to th e propriety broad cease and desist orders )) and specifically addressing orders prohibiting any vio lat io n of Section 7, as th e Board imposed here. The caselaw establishes that such broad orders will rarely be justified. In NLRB v. Express Publishing, Inc. , 312 U.S. 426 (1941), the Supreme Court discussed at length th e Board’s abilit y to issue broad cea se and desi st orders. I d. at 432-441. There the Court made clear th at cease and desist orders reaching oth er vio lat io ns beyo nd th ose proven are disfavored. The C ourt establ

ished a high standard to warrant the use of such an order, stating, “To justify an order restraining other violations it must appear th at they bear some resemblance to that which the employer has com

mit ted or th at danger of their com missio n in the future is to be anticipated from th e

course of his conduct in th e past.” Id. at 437. In that case, the Board found that the respondent had refused to bargain, as required by th e Act, and impo sed an order “direct[ing] respondent not to vio lat e ‘in any manner’ th e duties impo sed on the employer by the statute.” I d. at 432. To the extent t hat th e order prohibited th e respondent from int erfering wit h the employees’ right to bargain, th e Court fo und it unproblematic. But the Court restricted the scope of the order where it prohibited conduct unrelated to th e bargaining violations proven. I d. at 438 (“An appropri ate order in th e circumstances of the present case would go no further than to restrain respondent from any refusal6

to bargain and from any oth er acts in any manner int erfering wit h the Guild's effo rts to negoti ate.”). The judicial authority to enjo in actions i s broad but with clear boundaries, requiring some relation b etween the acts proven and the acts restrained. I d. at 435 (“A federal court has broad power to restrain acts which are of th e same ty pe or class as unlawful acts which the court has fo und to have been com

mit ted or whose com

missio n in the future, unless enjo ined, may fairly be anticipated from th e defendant's conduct in th e past.”). The Court determ ined that, as a matter of Congressional int ent, th e Board’s authority to issue orders should be similarly limit ed. I d. (“[W]e can har d ly suppose th at Congress int ended th at th e Board should make or the court should enforce orders which could not appropri atel

y be made in judicial proceedings.”). Therefore, the Court stated, “Congress did not contem

plate th at th e courts should, by co nt empt proceedings, try alleged violations of the National Labor Relations Act not in controversy and not fo und by the Board and which are not similar or fairly related to th e unfair labo r practice which the Board has fo und.” I d. (emphasis added). We have on many occasions repeated this concern that orders be limited to th ose vio lat io ns th at bear som

e relation to the violations demonstrated in the record. See NLRB v. Builders Supply Co. , 410 F.2d 606, 611 (5th Cir. 1969) (“T he courts have long been hesitant to extend the order beyo nd th e scope of th e particular unfair labo r practices which were com mit ted.”); NLRB v. A & P , 406 F.2d 1173, 1175 (5th Cir.1969) (“[W]e are constrained to mo dify the order to the extent th at it enjo ins th e com

pany from com

mit ting vio lat io n s unrelated to the kind involved here.”); N LRB v. Mayes Bros., Inc. , 383 F.2d 242, 248 (5th Cir. 1967) (rej ecting a broad order and stating, “An order restraining Com

pany int erference ‘in any like or relat ed manner’ with employees’ organizational rights will protect th e Com

p a ny from th e possibilit y of contem pt proceedings if in the future it com mit s7

som e new vio lat io n unlike and unrelated to the vio lat io n now fo und.”); Southw ire Co. v. NLRB , 383 F.2d 235, 238 (5th Cir. 1967) (“Violations outside the class wit h which we are dealing should be left to th e normal unfair practice procedures un der the Act rather than to the contempt power of the court.”). Requiring relatedness between the vio lat io ns on record and the vio lat io ns prohibited in th e order does not m

ean th at a broad order is never justified. In fact, in E xpress Publishing , the Court cit ed to several cases where broad orders were justified, noting that in those cases “t he record disclosed persistent attem pts by varying met hods to int erfere with the right of self-organization in circumstances from which th e Board or the court fo und or could have fo und the th reat of continuing and varying effo rts to attain th e same end in the future.” E xpress Publishing , 312 U.S. at 438. Soon aft er, th e Court reaffirmed th at a broad order can be justified by stating th at it would refuse to enforce

a broad order “wit hout a clear determ inat io n by the Board of an atti tude of opposition to th e purposes of th e Act to protect th e rights of employees generally.” M ay Dep’t Stores , 326 U.S. at 392. In other words, an employer who challenges the purposes of the Act, challenges the entirety of th e Act. In such cases, an order encompassing the entirety of the Act can be enforced, not because th e relatedness requirement falls away, but because the rel atedness requirement is satisfied. We have understood th ese cases to require th at “an order prohibiting conduct beyond the specific acts fo und by th e Board as unfair labo r practices should be limit ed to th ose cases where th e Respondent had demonstrated a procl ivit y to vio lat e the Act.” S outhw ire Co. , 383 F.2d at 237; see also A & P , 406 F.2d at 1175 (“To limit and protect it s contem pt j uri sdiction, this Court has not allo wed orders so broad as to go beyond the class of vio lat io ns invo lved in the case in the absence of a strong showing th at th e com pany has a procl

ivit y to disregard the Act in it s entirety.”). Further,

we have considered whether “t he Com pany’s conduct shows such an atti tude of opposition to th e8

purposes of th e Act as would justify an o r der restraining all possible future vio lat io ns of the Act.” Mayes Bros., Inc. , 38 3 F.2d at 248; s ee also NLRB v. Bama Co. , 353 F.2d 320, 323-24 (5th Cir. 1965) (“[W]e cannot say th at th e Board was not warranted in invo king this broad form of order on th e basis of an atti

tude of opposition to the purposes of the Act.”). Con sist ent with E xpress Publishing and May Dep’t Stores , th ese standards are meant to determine whether the employer’s conduct demonstrates hostility to the Act and a willingness to act on that hostility. In th e present case, th e Board applied Hickmott Foods, Inc. , 242 NLRB 1357 (1979), which states th at a broad cease and desist order is warranted only “when a respondent is shown to have a procl ivit y to vio lat e th e Act or has engaged in such egregious or widespread misco nduct as to demonstrate a general disregard fo r th e employees’ fundamental statutory rights.” I d. Alt hough the language of this standard is clearly consistent wit h the caselaw of the Supreme C ourt and of this circuit, we must decide whether the Board’s application of this standard is legally correct. C When applying th ese standards, we have enforced broad orders where the facts warrant it

. For example, we enforced a broad order where there were th reats against individual employees, th reats to get rid of overtime and oth erwise change working conditions, and a statem ent by the

com pany president th at th ere would be no union. NLRB v. Moore Dry Kiln Co. , 320 F.2d 30, 34-35 (5th Cir. 1963). We also enforced a broad order where “the Board found many violations which cumulatively com

posed a picture of over-all coercion th rough th reats, prom

ises and int errogation.” NLRB v. Bush Hog, Inc. , 405 F.2d 755, 757 (5th Cir. 1968). There are many cases, though, where we have refused to enforce broad orders, even where th e vio lat io ns were wide-ranging. In N LRB v. Southw ire Co. , 352 F.2d 346 (5th Cir. 1965), we did9

n ot enforce a broad cease and desist order where the employer had explicit anti-union animus, established a no sol icitation-rule, and discriminately discharged four employees. I d. at 350. Following mo re discriminat ory discharges by the same employer, we again refused to enforce a broad order. S outhw ire Co. , 383 F.2d at 238 (5th Cir. 1967). In N LRB v. Safew

ay Steel Scaffolds Co. , 383 F.2d 273 (5th Cir. 1967), we fo und “t here was no showing of a procl ivit y to vio lat e the Act or certain sections of th e Act,” id. at 282, where t he employer had refused to bargain in good faith by th reatening and then enforcing a wage reduction and by fir ing seven stri king employees. In NLRB

v. Curtis Mfg. Co. , 421 F.2d 1335 (5th Cir. 1970 ), we affirmed the f inding t hat the company had made a discriminat ory discharge, “t hreats of econom ic repri sals against union adherence[,] and th reats of plant shut downs if th e union was successful in its organization attempts, etc.” Id. at 1337. But

we declined to enforce a broad order, stati ng, “Although the viol ations here may be considered extensive, a representation election was held, the Union won, and in due course a collective bargaining agreement has been entered into between the employer and the Union.” Id. In this case, th e Board relied on seven factors to justify the use of a broad order: 1) repeated info rmation request violations at the Waco facilit y; 2) the Board had already imposed on the Waco facilit y a narrow order in 2002; 3) info rmation request violations may mask other violations; 4) the Postal Service presented only weak defenses fo r their actions; 5) the Postal Service, nationwide, has

com mit ted numerous info rmation request vio lat io ns over the past two decades; 6) the Board issued broad orders in th

ree recent cases of info rmation request vio lat io ns at oth er Postal Service facilit ies in Texas; 7) on th e same day th e Board affirmed the broad order in this case, it also affirmed a broad order against th e Postal Service-Albuquerque fo r info rmation request vio lat io ns and discriminat ory discharge. U

nited States Postal Service , 345 N.L.R.B. No. 25 (Aug. 27, 2005), 2005 WL 2102982,10

*2. We agree with the di ssenting member of the Board; these seven factors are not legally sufficient to justify th e use of a broad order. I d. at *4. These factors pale in comparison to those prior cases where we have refused to enforce a broad order and do not demonstrate that the Postal Service-Waco has an atti

tude of opposition to the purposes of the Act or a procl ivit y to vio lat e th e Act. The Board attem

pts to connect these info rmation request vio lat io ns to the entirety of Section 7 rights by asserting th at info rmation request vio lat io ns can mask oth er vio lat io ns. Alt hough this is clearly true, th ere is no evidence on th e record th at the info rm ati on request viol ations in this case were used or intended to be used to mask other violations or had the effect of generally interfering wit h employee rights. In fact, there is no evidence on the record that there have ever been any unfair labo r pra cti ces at this facilit y beyo nd info rmation request violations. Such speculation that future info rmation request vio lat io ns may be used to mask oth er unfair labo r practices, wit hout evidence th at th e employer is likely to com mit oth er unfair labo r practices, cannot be used to support a broad order. See Sure-Tan, Inc. v. NLRB , 467 U.S. 883, 900 (1984) (“[The Board’s] remedy must be sufficient ly tailo red to expunge only th e actual , and not merely speculative , con s equences of the unfair labo r practices.”) (emphasis in original). Further, th e Bo ard’s attempt to cast the previousl y impo sed narrow order as ineffective is wholly unconvincing. The Board states that the second series of violations “suggest[s] the inadequacy of this [narrow] order to deter future vio lat io ns of employee rights.” U nited States Postal Service , 2005 WL 2102982, *2. But, as the Board itself later points out, “the acts alleged as unfair labo r practices here took place prior to the court's enforcement of the order in the prior case.” Id. at *3 n. 9. In other words, the Board treats the narrow order as ineffective even though the narrow1 The Pos tal Service argues that all info rmation regarding violations from other facilities

should not be considered because such evidence was not properly before the Board. The Postal Service did not peti

tion for reconsideration or rehearing, and therefore never objected to the use of this evidence by th e Board. The Postal Service has given no reason for its failure t o m ake such a peti tion. As a result, we cannot now consider the question. 29 U.S.C. § 160(e); W oelke & Romero Framing v. NLRB , 456 U.S. 645, 665-66 (1982). In any event, the Board may take judicial notice of prior Board proceedings invo lving th e same party . S ee NLRB v. American Art Industries, Inc. , 415 F.2d 1223, 1227 (5th Cir. 1969); see also NLRB v. Joseph , 605 F.2d 466, 467 (9th Cir. 1979) (“Judicial notice was taken of th at earlier proceeding under the rule th at the Board may take judicial notice of its own proceedings.”). 11 order had not yet taken effect. Lastly, th e unfair labo r practices identified at oth er Postal Service facilities must be understood in context. 1 As the dissenting member of the Board points out, “[T]he Postal Service is

a massive, far-flung and decentralized op erati on.” Id. at *7. Violations at one facility do not necessarily implicat e oth er facilit ies. The Board has made no attempt to connect the violations at the Waco facilit y to th e vio lat io ns at oth er facilit ies. S ee, e.g. , NLRB v. S.E. Nichols, Inc. , 862 F.2d 952, 961 (2d Cir. 1988) (finding th at vio lat io ns at variou s lo cations managed by the same district supervisor justified an order covering all lo cations managed by th at district supervisor). Additionally, considering vio lat io ns at oth er facilit ies requires considering com pliance at oth er facilit ies; to do oth erwi se obviously distorts the company’s attitude toward the purposes of the Act. S ee, e.g. , Torrington Extend-A-Care Employee Ass'n v. NLRB , 17 F.3d 580, 586 (2d Cir. 1994) (“Although th e Board emphasized th at [the Respondent] com mit ted over 130 vio lat io ns at 33 sites, the evidentiary weight of th ese stati stics is substantially diminished when related to th e size of [the Respondent] and th e ty

pes of violations found.”). Given the sheer size of the Postal Service, the evidence relied upon by th e Board shows th at vio lat io ns are relatively iso lat ed incidents and rarely flagrant. Once properly understood in context, the record in this case does not demonstrat e that12

vio lat io ns of th e Act at oth er facilit ies suggest th at employees of the Postal Service-Waco are at ri sk of unfair labor practices beyond information request violations. III In sum, th e Supreme Court has established a high standard to justify the use of an order reaching all possible vio lat io ns of Section 7 rights. We have applied this high standard by requiring th e respondent’s conduct to demonstrate an atti tude of opposition to the purposes of the Act or a procl ivit y to vio lat e th e Act and by refusing to enforce a broad order even where the vio lat io ns were extensive. The Board erred in concluding that the facts on record meet the standard for imposing a broad order. In this case, the Board’s order extends well beyond those vio lat io ns which bear a resemblance to th e info rm ati on request violations found and reaches violations which cannot be reasonably anticipated based on the respondent’s past conduct. S ee Express Publishing , 312 U.S. at 437. Therefore, we modify paragraph 1(e) of the Board’s cease and desist order by replacing “In any o th er manner” with “In any like or related manner”. The Board’s order is enforced as modified.