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 the 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

desist order issued against the United States Postal Service facility in Waco, Texas (“the Postal

Service-Waco”) for repeated failures to respond to union information 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 the cease and desist order is overly broad. We find that it is and

modify the order accordingly.
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I

In October 2002, the Board found that the Postal Service-Waco had committed twelve

violations of the 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 with presumptively relevant requested information. In March 2003, the Postal Service-Waco

instituted new information request procedures in an attempt to prevent future information request

violations. Evidence reveals that these procedures were not always followed. In July 2003, the union

charged further violations for failing or refusing to furnish requested information. An administrative

law judge (“ALJ”) confirmed that violations occurred, finding that over the two-month period at

issue, May and June 2003, the Postal Service-Waco did not respond to four of 68 information

requests.

After the first series of violations in 2002, the ALJ imposed a narrow cease and desist order,

which prohibited the Postal Service-Waco from violating the Act “in any like or related manner” to

the information request violations. This order would allow contempt proceedings against the Postal

Service-Waco if evidence suggested it had committed further information request violations. The

second series of violations, in 2003, took place prior to our enforcement of the narrow order; that

is, the narrow order was not in effect at the time the second violations occurred and contempt

proceedings were not yet available. Thus, as a result of the second series of violations, the ALJ

imposed a broader cease and desist order; this time the order prohibited the Postal Service-Waco

from“[i]n any other manner interfering with, restraining, or coercing employeesin the exercise ofthe

rights guaranteed them by Section 7 of the Act.” Section 7 of the NLRA, 29 U.S.C. § 157, sets out

all of the rights of employees and provides: 
3

Employees shall have 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 activitiesfor the purpose of collective bargaining or

other mutual aid or protection, and shall also have the right to refrain from any or all

ofsuch activities except to the extent that 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 objection of one

board member. 

II

A

We review the Board’sfindings of fact for “substantial evidence.” 29 U.S.C. § 160(e) (“The

findings of the Board with 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

that a reasonable mind would accept to support a conclusion.’” Valmont Indus. v. NLRB, 244 F.3d

454, 463 (5th Cir. 2001) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).

Although “[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 more deferentialstandard. NLRB v. Laredo Packing Co., 730 F.2d 405, 407 (5th Cir.

1984) (“TheBoard'sremedialpower in thisregard 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

attempt to achieve ends other than those which can fairly be said to effectuate the policies of the

Act.’” NLRB 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

the authority to review orders, NLRA § 10(e), 29 U.S.C. § 160(e), foresees the role of the court as
4

more than “mere perfunctory executors ofthe Board’s unrestrained will.” NLRB 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 within its statutory authority, though we will review the Board’s orders to

ensure that it does not exceed that statutory authority. See May Dep't Stores Co. v. NLRB, 326 U.S.

376, 392 (1945) (“While the Board has been delegated initially the exclusive authority to prevent

unfair labor practices, courts, which are called upon to enforce such orders by their own decrees, may

examine its scope to see whether, on the evidence, they go so beyond the authority of the Board as

to require 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 statesthat where theBoard determines a violation ofthe Act has occurred,

“the Board shall . . . cause to be served on such person an order requiring such person to cease and

desist from such unfair labor practice . . . as will effectuate the policies of this Act.” Id. Of this

statutory provision, the Supreme Court has stated, 

Under § 10(c), the Board's authority to remedy unfair labor practices is expressly

limited by the requirement that its orders “effectuate the policies of the Act.”

Although this rather vague statutory command obviously permits the Board broad

discretion, at a minimum it encompasses the requirement that a proposed remedy be

tailored to the unfair labor practice it is intended to redress.

Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984); see also NLRB v. District 50, United Mine

Workers, 355 U.S. 453, 458 (1958) (“The Board's discretionary authority to fashion remedies to

purge unfair labor practices necessarily has a broad reach. But the power is not limitless; it is

contained by the requirement that the remedy shall be ‘appropriate,’ and shall ‘be adapted to the

situation which calls for redress.’”) (internal citations omitted). This is consistent with the remedial
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nature ofthe Board’s authority. See Florida Steel Corp. v. NLRB, 587 F.2d 735, 746 (5th Cir. 1979)

(“We have held many times that the orders of the Board are required to be remedial 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 tailored to the unfair labor practice it is intended to redress. We are aided

in this task by the extensive caselaw, both from the Supreme Court and within this circuit, speaking

to the propriety broad cease and desist orders))and specifically addressing orders prohibiting any

violation of Section 7, as the 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 the Board’s ability to issue broad cease and desist orders. Id. at 432-441. There the Court

made clear that cease and desist ordersreaching other violations beyond those proven are disfavored.

The Court established a high standard to warrant the use of such an order, stating, “To justify an

order restraining other violations it must appear that they bear some resemblance to that which the

employer has committed or that danger oftheir commission in the future isto be anticipated from the

course of his conduct in the past.” Id. at 437. In that case, the Board found that the respondent had

refused to bargain, as required by the Act, and imposed an order “direct[ing] respondent not to

violate ‘in any manner’ the dutiesimposed on the employer by the statute.” Id. at 432. To the extent

that the order prohibited the respondent from interfering with the employees’ right to bargain, the

Court found it unproblematic. But the Court restricted the scope of the order where it prohibited

conduct unrelated to the bargaining violations proven. Id. at 438 (“An appropriate order in the

circumstances of the present case would go no further than to restrain respondent from any refusal
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to bargain and from any other acts in any manner interfering with the Guild's efforts to negotiate.”).

The judicial authority to enjoin actions is broad but with clear boundaries, requiring some

relation between the acts proven and the acts restrained. Id. at 435 (“A federal court has broad

power to restrain acts which are of the same type or class as unlawful acts which the court hasfound

to have been committed or whose commission in the future, unless enjoined, may fairly be anticipated

from the defendant's conduct in the past.”). The Court determined that, as a matter of Congressional

intent, the Board’s authority to issue orders should be similarly limited. Id. (“[W]e can hardly

suppose that Congressintended that theBoard should make or the court should enforce orders which

could not appropriately be made in judicial proceedings.”). Therefore, the Court stated, “Congress

did not contemplate that the courts should, by contempt proceedings, try alleged violations of the

National Labor Relations Act not in controversy and not found by the Board and which are not

similar or fairly related to the unfair labor practice which the Board has found.” Id. (emphasis

added).

We have on many occasions repeated this concern that orders be limited to those violations

that bear some relation to the violations demonstrated in the record. See NLRB v. Builders Supply

Co., 410 F.2d 606, 611 (5th Cir. 1969) (“The courts have long been hesitant to extend the order

beyond the scope of the particular unfair labor practices which were committed.”); NLRB v. A & P,

406 F.2d 1173, 1175 (5th Cir.1969) (“[W]e are constrained to modify the order to the extent that it

enjoins the company from committing violations unrelated to the kind involved here.”); NLRB v.

Mayes Bros., Inc., 383 F.2d 242, 248 (5th Cir. 1967) (rejecting a broad order and stating, “An order

restrainingCompanyinterference ‘inanylike orrelated manner’ with employees’ organizational rights

will protect the Company from the possibility of contempt proceedings if in the future it commits
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some new violation unlike and unrelated to the violation now found.”); Southwire Co. v. NLRB, 383

F.2d 235, 238 (5th Cir. 1967) (“Violations outside the class with which we are dealing should be left

to the normalunfair practice procedures under the Act rather than to the contempt power of the court.”).

Requiring relatedness between the violations on record and the violations prohibited in the

order does not mean that a broad order is never justified. In fact, in Express Publishing, the Court

cited to several cases where broad orders were justified, noting that in those cases “the record

disclosed persistent attempts by varying methods to interfere with the right of self-organization in

circumstances from which the Board or the court found or could have found the threat of continuing

and varying effortsto attain the same end in the future.” Express Publishing, 312 U.S. at 438. Soon

after, the Court reaffirmed that a broad order can be justified by stating that it would refuse to enforce

a broad order “without a clear determination by the Board of an attitude of opposition to the

purposes of the Act to protect the rights of employees generally.” May Dep’t Stores, 326 U.S. at

392. In other words, an employer who challenges the purposes of the Act, challenges the entirety

ofthe Act. In such cases, an order encompassing the entirety of the Act can be enforced, not because

the relatedness requirement falls away, but because the relatedness requirement is satisfied. 

We have understood these cases to require that “an order prohibiting conduct beyond the

specific acts found by the Board as unfair labor practices should be limited to those cases where the

Respondent had demonstrated a proclivity to violate the Act.” Southwire Co., 383 F.2d at 237; see

also A & P, 406 F.2d at 1175 (“To limit and protect its contempt jurisdiction, this Court has not

allowed orders so broad as to go beyond the class of violations involved in the case in the absence

of a strong showing that the company has a proclivity to disregard the Act in its entirety.”). Further,

we have considered whether “the Company’s conduct shows such an attitude of opposition to the
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purposes of the Act as would justify an order restraining all possible future violations of the Act.”

Mayes Bros., Inc., 383 F.2d at 248; see also NLRB v. Bama Co., 353 F.2d 320, 323-24 (5th Cir.

1965) (“[W]e cannot say that the Board was not warranted in invoking this broad form of order on

the basis of an attitude of opposition to the purposes of the Act.”). Consistent with Express

Publishing and May Dep’t Stores, these standards are meant to determine whether the employer’s

conduct demonstrates hostility to the Act and a willingness to act on that hostility.

In the present case, the Board applied Hickmott Foods, Inc., 242 NLRB 1357 (1979), which

states that a broad cease and desist order is warranted only “when a respondent is shown to have a

proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to

demonstrate a general disregard for the employees’ fundamentalstatutory rights.” Id. Although the

language of this standard is clearly consistent with the caselaw of the Supreme Court and of this

circuit, we must decide whether the Board’s application of this standard is legally correct.

C

When applying these standards, we have enforced broad orders where the facts warrant it.

For example, we enforced a broad order where there were threats against individual employees,

threats to get rid of overtime and otherwise change working conditions, and a statement by the

company president that there 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 composed a picture of over-all coercion through threats, promises and interrogation.”

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

the violations were wide-ranging. In NLRB v. Southwire Co., 352 F.2d 346 (5th Cir. 1965), we did
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not enforce a broad cease and desist order where the employer had explicit anti-union animus,

established a no solicitation-rule, and discriminately discharged four employees. Id. at 350.

Following more discriminatorydischarges bythe same employer, we again refused to enforce a broad

order. Southwire Co., 383 F.2d at 238 (5th Cir. 1967). In NLRB v. Safeway Steel Scaffolds Co., 383

F.2d 273 (5thCir. 1967), we found “there was no showing of a proclivity to violate the Act or certain

sections of the Act,” id. at 282, where the employer had refused to bargain in good faith by

threatening and then enforcing a wage reduction and by firing seven striking employees. In NLRB

v. Curtis Mfg. Co., 421 F.2d 1335 (5th Cir. 1970), we affirmed the finding that the company had

made a discriminatorydischarge, “threats ofeconomic reprisals against unionadherence[,] and threats

of plant shut downs if the union was successful in its organization attempts, etc.” Id. at 1337. But

we declined to enforce a broad order, stating, “Although the violations 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, the Board relied on seven factors to justify the use of a broad order: 1) repeated

information request violations at the Waco facility; 2) the Board had already imposed on the Waco

facility a narrow order in 2002; 3) information request violations may mask other violations; 4) the

Postal Service presented only weak defenses for their actions; 5) the Postal Service, nationwide, has

committed numerous information request violations over the past two decades; 6) the Board issued

broad orders in three recent cases of information request violations at other Postal Service facilities

in Texas; 7) on the same day the Board affirmed the broad order in this case, it also affirmed a broad

order against the Postal Service-Albuquerque for information request violations and discriminatory

discharge. United States Postal Service, 345 N.L.R.B. No. 25 (Aug. 27, 2005), 2005 WL 2102982,
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*2.

We agree with the dissenting member of the Board; these seven factors are not legally

sufficient to justify the use of a broad order. Id. 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 attitude of opposition to the purposes of the Act or a proclivity to violate the

Act. The Board attempts to connect these information request violations to the entirety of Section

7 rights by asserting that information request violations can mask other violations. Although this is

clearly true, there is no evidence on the record that the information request violations in this case

were used or intended to be used to mask other violations or had the effect of generally interfering

with employee rights. In fact, there is no evidence on the record that there have ever been any unfair

labor practices at this facility beyond information request violations. Such speculation that future

informationrequest violationsmaybe used to mask other unfair labor practices, without evidence that

the employer islikely to commit other unfair labor 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 sufficiently

tailored to expunge only the actual, and not merely speculative, consequences of the unfair labor

practices.”) (emphasis in original).

Further, the Board’s attempt to cast the previously imposed narrow order as ineffective is

wholly unconvincing. The Board states that the second series of violations “suggest[s] the

inadequacyofthis[narrow] order to deter future violations of employee rights.” United StatesPostal

Service, 2005 WL 2102982, *2. But, as the Board itself later points out, “the acts alleged as unfair

labor 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 narrow
1 The Postal Service argues that all information regarding violations from other facilities

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

Service did not petition for reconsideration or rehearing, and therefore never objected to the use of

this evidence by the Board. The Postal Service has given no reason for its failure to make such a

petition. As a result, we cannot now consider the question. 29 U.S.C. § 160(e); Woelke & Romero

Framing v. NLRB, 456 U.S. 645, 665-66 (1982). In any event, the Board may take judicial notice

of prior Board proceedings involving the same party. See 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 that earlier proceeding under the rule that the Board may take judicial

notice of its own proceedings.”).

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order had not yet taken effect.

Lastly, the unfair labor practices identified at other 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 operation.” Id. at *7. Violations at one facility do not

necessarily implicate other facilities. The Board has made no attempt to connect the violations at the

Waco facility to the violations at other facilities. See, e.g., NLRB v. S.E. Nichols, Inc., 862 F.2d 952,

961 (2d Cir. 1988) (finding that violations at various locations managed by the same district

supervisor justified an order covering alllocationsmanaged bythat districtsupervisor). Additionally,

considering violations at other facilities requires considering compliance at other facilities; to do

otherwise obviously distorts the company’s attitude toward the purposes of the Act. See, e.g.,

Torrington Extend-A-Care Employee Ass'n v. NLRB, 17 F.3d 580, 586 (2d Cir. 1994) (“Although

the Board emphasized that [the Respondent] committed over 130 violations at 33 sites, the

evidentiary weight of these statistics is substantially diminished when related to the size of [the

Respondent] and the types of violations found.”). Given the sheer size of the Postal Service, the

evidence relied upon by the Board shows that violations are relatively isolated incidents and rarely

flagrant. Once properly understood in context, the record in this case does not demonstrate that
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violations of the Act at other facilities suggest that employees of the Postal Service-Waco are at risk

of unfair labor practices beyond information request violations. 

III

In sum, the Supreme Court has established a high standard to justify the use of an order

reaching all possible violations of Section 7 rights. We have applied this high standard by requiring

the respondent’s conduct to demonstrate an attitude of opposition to the purposes of the Act or a

proclivity to violate the Act and by refusing to enforce a broad order even where the violations 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 violations which bear a

resemblance to the information request violations found and reaches violations which cannot be

reasonably anticipated based on the respondent’s past conduct. See 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 other manner” with “In any like or related manner”.

The Board’s order is enforced as modified.