PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EVERGREEN AMERICA CORPORATION, 

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.  No. 06-2105

LOCAL 1964, INTERNATIONAL

LONGSHOREMEN’S ASSOCIATION,

AFL-CIO,

Intervenor. 

NATIONAL LABOR RELATIONS BOARD, 

Petitioner,

v.  No. 06-2183

EVERGREEN AMERICA CORPORATION,

Respondent. 

On Petition for Review and

Cross-application for

Enforcement of an Order of the

National Labor Relations Board.

(22-CA-25295)

Argued: January 31, 2008

Decided: June 26, 2008

Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Petition for review denied; cross-application for enforcement granted

by published opinion. Judge Gregory wrote the opinion, in which

Judge Michael joined. Judge Duncan wrote a separate opinion concurring in part and dissenting in part. 

COUNSEL

ARGUED: Francis X. Dee, MCELROY, DEUTSCH, MULVANEY

& CARPENTER, L.L.P., Newark, New Jersey, for Evergreen America Corporation. David Arthur Fleischer, NATIONAL LABOR

RELATIONS BOARD, Washington, D.C., for the National Labor

Relations Board. Herzl Sol Eisenstadt, MARRINAN & MAZZOLA

MARDON, P.C., New York, New York, for Intervenor. ON BRIEF:

John J. Peirano, William A. Cambria, MCELROY, DEUTSCH,

MULVANEY & CARPENTER, L.L.P., Newark, New Jersey, for

Evergreen America Corporation. Ronald Meisburg, General Counsel,

John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson,

Associate General Counsel, Aileen A. Armstrong, Deputy Associate

General Counsel, Robert J. Englehart, Supervisory Attorney,

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

the National Labor Relations Board. Christopher P. Getaz, GLEASON, MARRINAN & MAZZOLA MARDON, P.C., New York, New

York, for Intervenor. 

OPINION

GREGORY, Circuit Judge: 

After losing its representation election, Local 1964, International

Longshoremen’s Association, AFL-CIO ("Union") filed a complaint

against Evergreen America Corporation ("Evergreen") with the

National Labor Relations Board ("Board"). The Board found that

Evergreen committed numerous unfair labor practice violations and

issued a bargaining order. On appeal, Evergreen contends that the

Board erroneously found that the Union enjoyed a pre-election majority and substantial evidence did not support the Board’s factual findings. Evergreen also argues that a bargaining order is unnecessary

2 EVERGREEN AMERICA CORP. v. NLRB
because traditional remedies would be more than adequate. We disagree with Evergreen’s contentions and enforce the Board’s bargaining order in its entirety.

I.

Evergreen is the general agent in North America for three of the

world’s leading ocean carriers, providing customer service, sales,

marketing, logistic and administrative support. In March 2002, two

clerical employees of Evergreen met with the Union to discuss the

Union’s representation of Evergreen’s clerical employees in northern

New Jersey. After holding a meeting on April 15, 2002, the Union

distributed authorization cards which would allow the Union to represent the employees. The employees also formed an organizing committee to circulate additional cards among the employees that were

not able to attend the meeting. Some authorization cards were signed

at the meeting. Others were given to employees who distributed them

to other employees; both groups of employees obtained signed cards

from other employees. By June 15, 2002, sixty-two of the 1151

employees in the appropriate bargaining unit had signed authorization

cards. On June 4, the Union filed a petition for an election among

Evergreen’s clerical employees in northern New Jersey. The election

was held on July 17, and the Union lost by a vote of sixty-one to fiftytwo. 

After losing the election, the Union filed unfair labor practice

charges with the Board. The Board’s General Counsel ("General

Counsel") issued a complaint, which alleged that Evergreen had committed numerous violations of Sections 8(a)(3) and (1) of the National

Labor Relations Board Act ("Act") (29 U.S.C. §§ 158(a)(3) and (1))

and that a bargaining order was necessary to remedy those violations.

After a lengthy hearing, the Administrative Law Judge ("ALJ") issued

a decision sustaining most of the allegations in the complaint, dismissing others, and recommending a bargaining order to remedy the

violations found. Evergreen and the General Counsel filed exceptions.

1The record provides two different totals for the number of employees

in the bargaining unit, 114 and 115. We used the higher total in our analysis because the union had a majority even when using the higher total.

EVERGREEN AMERICA CORP. v. NLRB 3
The Board found that the Union had valid cards and that Evergreen

violated Section 8(a)(1) of the Act by unlawfully interrogating

employees on thirteen occasions; soliciting employee grievances and

implicitly promising to remedy them on fifteen occasions; explicitly

making the same promise on eight occasions; threatening reprisals on

nine occasions; twice instructing employees not to attend union meetings and to throw away union literature without reading them; and

once creating the impression those employees’ union activities were

under surveillance. The Board further found that Evergreen violated

Sections 8(a)(3) and (1) of the Act by granting unprecedented large

across-the-board wage increases to bargaining-unit employees, and

promoting an unprecedented number of such employees prior to the

election and by granting eight other benefits, before and after the election, to dissuade the employees from supporting the Union. 

The Board also found that the unfair labor practices described

above, as well as other unfair labor practices not contested in this

Court, rendered it unlikely that a fair rerun election could be held.

Further, the Board found that these unfair labor practices had not been

effectively repudiated nor had the passage of time diminished their

effect. Accordingly, the Board concluded that a Gissel II bargaining

order was necessary to remedy those violations. The Board ordered

Evergreen to cease and desist from the unlawful conduct, to bargain

with the Union upon request, and to take other affirmative remedial

action. Evergreen filed a petition for review in this Court, and the

Board filed a cross-application to enforce the bargaining order. 

II.

In its petition, Evergreen first contends that facts found by the

Board do not support its inferences or conclusions that Evergreen

committed "hallmark" violations. In support of its conclusion that

Evergreen committed unfair labor practices, the Board found that

prior to the election Evergreen (1) granted unprecedented and excessive across-the-board wage increases to unit employees; (2) manipulated its promotion process in order to promote more unit employees

than in past years; (3) promised to remedy grievances in order to

encourage employees to reject representation; and (4) granted

employees new or improved benefits, some of which were granted

after the election. 

4 EVERGREEN AMERICA CORP. v. NLRB
It is now well settled that Board findings of fact are conclusive as

long as they are "supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e); Overnite Transp. Co. v.

NLRB, 280 F.3d 417, 428 (4th Cir. 2002) (en banc) (citing Universal

Camera Corp. v. NLRB, 340 U.S. 474, 490-91 (1951)). Substantial

evidence is "such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion." Richardson v. Perales,

402 U.S. 389, 401 (1971). While "[t]he Board may not base its inference on pure speculation . . . it may draw reasonable inferences from

the evidence." Overnite Transp. Co., 280 F.3d at 428 (citing OwensCorning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1362 (4th Cir.

1969)). Even though we might reach a different result after hearing

the evidence in the first instance, we defer to the Board’s findings of

fact that are supported by substantial evidence. Id. (citing NLRB v.

Daniel Constr. Co., 731 F.2d 191, 193 (4th Cir. 1984)). 

Under this standard, we conclude that substantial evidence supports

each of the Board’s findings and address their specific findings with

respect to the unprecedented wage increases, the unprecedented promotions, promises to correct grievances, and the new and improved

benefits seriatim.

A.

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

claims that its wage structure was falling behind its competitors and

it needed to reduce employee turnover because the company expected

an improved financial environment and substantial business expansion. 

"On July 15, 2002, two days before the election, Evergreen’s [115]

bargaining unit employees received their paychecks, which included

across-the-board raises of $400 per month for all bargaining unit

employees. This was the first year employees had received across-theboard increases." (J.A. 1182.) The Board found that "[p]rior increases

had been given to employees, based primarily upon a ‘merit’ system,

wherein evaluations given by supervisors that reveal a numerical

score for each employee, is utilized by upper management to decide

upon increases for employees." (J.A. 1182.) Based upon this system,

EVERGREEN AMERICA CORP. v. NLRB 5
depending upon the score received by employees, some employees

would not receive any raise at all on account of a low score. The

Board found that ninety-three percent of the bargaining unit employees received a bigger salary increase in 2002 than they had in the

three previous years combined. The Board also found that during the

course of the organizational campaign, various Evergreen supervisors

spoke to several employees regarding raises and/or Evergreen’s business. 

In response to Evergreen’s alleged justification, the Board found

that although there was evidence that Evergreen had increased its

quantity of service, "[Evergreen had] not demonstrated that there had

been at that time any increase[] in revenue or in profits." (J.A. 1191.)

Although there was testimony that profits and revenues were gradually increasing at that time, this testimony had not been substantiated

by any documentary evidence. To the contrary, as was found by the

Board, "[Evergreen’s] position paper establishes that the first 6

months of 2002, [Evergreen’s] revenues were substantially lower than

they had been for the comparable period in 2001 when business was

allegedly so bad that it postponed its July raise to October." (J.A.

1191.) After a detailed explanation, the ALJ concluded that "in the

context of these unfair labor practices, reasonable employees would

have viewed the 2002 wage increase as having been conferred by

[Evergreen] in order to undermine support for the Union." (J.A.

1192.)

After reviewing the record, we find that there was substantial evidence to support the Board’s conclusion.

B.

In July 2002, Evergreen employed 115 employees in the bargaining

unit. Prior to the July promotions, sixty-two employees were eligible

for promotions from General Schedule employee ("GS") to Assistant

Manager ("AM"). On July 1, 2002, twenty employees in the unit were

promoted to AM. Based on testimony from several witnesses, the

Board found that there was essentially no difference between AM and

GS job functions. The Board also found that "the promotion to AM

is essentially a reward for superior performance, which entails addi6 EVERGREEN AMERICA CORP. v. NLRB
tional compensation." (J.A. 1193.) In the previous two years, a total

of six people had been promoted.

The record revealed that one of the employees promoted, Chris Yu,

was notified of her promotion by her supervisor Kevin Huang on or

about July 1, 2002. Huang congratulated Yu and informed her that

she was promoted to AM effective July 1, 2002. During that same

conversation, Huang told Yu that the Union is "no good," and asked

her if she had decided which "side to choose" in the election. (J.A.

1194.) Yu replied that she had not chosen a side yet. Huang then

reminded her that the Company treats its employees well, so "don’t

let the company down." (J.A. 1194.) 

Sherry Yao, also promoted, testified that she worked at Evergreen

for thirteen years. She was also told by Jimmy Kuo, an Evergreen

executive, that "the Union is not good for her, is controlled by the

Mafia and was trying to take money from her." (J.A. 1194.) Kuo

asked for suggestions about changes in the company or any complaints about her treatment by Evergreen. Yao responded that she had

been working for the company a long time and had not had a promotion. Kuo acknowledged that it was difficult to judge why she had not

been promoted although he attributed some of the decisions to luck.

According to Yao, there were about ten employees in her department,

and for the past three years, there were no promotions in that department. (J.A. 1194.) 

The Board was not required to identify how many promotions

would have been authorized absent the Union’s campaign, but it did

find that Evergreen did not establish that it would have promoted

twenty or even seventeen employees, if not for the presence of the

Union. Thus, the Board concluded that Evergreen manipulated the

promotion process in order to influence employees to withdraw their

support for the Union and to vote against the Union in the election.

(J.A. 1198.) We find that there was substantial evidence to support the

Board’s conclusion.

C.

Evergreen contends that there was not substantial evidence to support the Board’s finding that Evergreen’s President Thomas Chen

EVERGREEN AMERICA CORP. v. NLRB 7
promised to remedy grievances in his speeches before employees in

the bargaining unit in order to encourage employees to reject representation. President Chen stated "that concerns of employees can best

be addressed directly without intermediaries," that he had asked managers to consider items important to the staff, that Evergreen listen to

and consider employees recommendations for improvement, if Evergreen does not make the effort to deal with employees’ concerns, they

are giving opportunities for unions to come into the work place, and

he hoped that employees would give the company one year to "address your concerns," and "let’s make the best of this situation giving

[Evergreen] a chance." (J.A. 1172.) 

As the Board observed, "statements that request employees to give

the employer another chance or a second chance are considered

within the limits of campaign propaganda, and are not unlawful promises of benefit." Noah’s New York Bagel, 324 NLRB 266 (1976); Nat.

Micronetics, 277 NLRB 993 (1985). However, as the Board found,

President Chen went further than merely asking for a chance to show

improvement. President Chen "specifically referred to suggestions

made by employees to management, promised to address the employees’ concerns, without ‘intermediaries’ i.e., the Union." (J.A. 1172.)

According to the Board, the type of statements made by President

Chen "which link improvements in benefits with defeat of the Union

are sufficient to conclude that a reasonable employee would understand the unlawful message that changes would occur more readily if

the employees voted against the Union." (J.A. 1172.)

The Board also noted that President Chen’s statements were merely

one aspect of an "extensive and pervasive campaign of unlawful

solicitation of grievances" as well as other unfair labor practices. (J.A.

1172.) The Board also pointed out that the solicitations, including the

statements by President Chen, represented a substantial departure

from Evergreen’s prior practice. Before the Union’s organizational

campaign began, Evergreen not only did not solicit suggestions from

employees, but also ignored whatever suggestions the employees did

make. We find substantial evidence to support the Board’s conclusion.

D.

Evergreen also contests the Board determination that five benefits

granted by the company after the election should not have been found

8 EVERGREEN AMERICA CORP. v. NLRB
unlawful. These grants of benefits occurred between late August 2002

and January 2003, while the Union’s objections to the election were

pending and a rerun election was a possibility. A grant of benefits

under these circumstances, if designed to erode union support in any

likely rerun election, is no less unlawful than a grant of benefits

designed to erode union support in a scheduled initial election. NLRB

v. Wis-Pak Foods, Inc., 125 F.3d 518, 525-26 (7th Cir. 1997). 

Contrary to Evergreen’s contention, the Board did not simply infer

unlawful motivation solely from the timing of the benefits. The Board

also noted that three of the benefits granted (the year-round casual

dress, the improved sick-leave benefits, and the right to bring spouses

to the Christmas Party) were requested by employees in response to

Evergreen’s unlawful solicitation of grievances. The employees had

previously requested and Evergreen had rejected requests before the

Union’s organizational campaign, only to grant them shortly after the

Board election. (J.A. 1178-1182). After reviewing the record, we find

that there was substantial evidence to support the Board’s conclusion.

III.

Next, Evergreen argues that the bargaining order is unnecessary

because traditional remedies would be more than adequate. The Board

concluded that Evergreen’s labor practice violations were so particularly coercive because of their tendency to destroy election conditions

and to persist for longer periods of time than other unfair labor practices. As a result, simply requiring Evergreen to refrain from unlawful

conduct would neither eradicate the lingering effects of the violations

it committed nor deter their recurrence. The Board found that the

employees’ desire for representation, would be better protected by a

bargaining order than by traditional or special remedies that Evergreen contends were not considered by the ALJ. The Board finally

concluded that it is unlikely that a fair rerun election could be held

because of the lasting effects of Evergreen’s violations and found that

a bargaining order was appropriate. 

"[I]t is the strong preference of our national labor policy not to

impose collective bargaining representatives on employees except

when they have, by a majority vote, elected to be so represented."

Overnite Trans. Co., 280 F.3d at 435-46 (internal citations omitted).

EVERGREEN AMERICA CORP. v. NLRB 9
"Because an election, not a bargaining order, remains the traditional,

as well as the preferred, method for determining the bargaining agent

for employee, the extraordinary and drastic remedy of forced bargaining pursuant to Gissel orders are available only when traditional remedies are insufficient to make possible a ‘fair and reliable election’."

Id. (internal citations omitted). The Board must also make "specific"

and "detailed" findings. Id.

In essence, Gissel orders may be entered in two types of cases: (1)

Category I cases, where "exceptional," "outrageous," and "pervasive"

unfair labor practices have occurred and the coercive effects of such

practices "cannot be eliminated by the application of traditional remedies"; and (2) in less extraordinary, Category II, cases. Be-Lo Stores

v. NLRB, 126 F.3d 268, 274-75 (4th Cir. 1997).

To satisfy the requirements for imposing a Category II Gissel order-the type involved in this case-the Board must make

detailed findings specifically supporting the facts that (1) the

Union enjoyed a pre-election majority in the relevant unit;

(2) the employer committed an unfair labor practice; (3) the

unfair labor practice caused the Union’s majority status to

be dissipated; (4) the possibility of conducting a fair reelection would be slight; and (5) the employees’ pre-election

sentiments would be better protected by a bargaining order

than by a new election. In turn, to find that the possibility

of conducting a fair election would be slight and that

employees’ pre-violation sentiments would be better protected by a bargaining order, the Board must specifically

consider and make findings about (a) the likelihood of

recurring misconduct; (b) the residual impact of unfair labor

practices, considering whether that effect has been or will be

dissipated by the passage of time; and (c) the efficacy of

ordinary remedies. See generally Gissel, 395 U.S. at 613-14;

Be-Lo, 126 F.3d at 282. 

Overnite Transp. Co., 280 F.3d at 436. In Overnite, we held that

while the Board properly considered the first three factors in this analysis, the Board nonetheless abused its discretion by "fail[ing] . . . to

direct us to evidence that a new fair election could not be conducted."

Id. Because the Board failed to make the requisite findings and relied

10 EVERGREEN AMERICA CORP. v. NLRB
heavily on a finding of a post-election unfair labor practice that was

unsupported by the evidence, we held that the bargaining order could

not be enforced. Id. at 436-37. In this case, in contrast, the Board

described its reasoning with "scrupulous specificity," Id. at 438, and

with particular attention to each of the factors we enunciated in Overnite. Furthermore, as we explain, the Board’s findings — including

its findings of unfair labor practices that persisted after the election

— are supported by substantial evidence in the record, and therefore

warrant deference from this court. See id. at 428. 

The first requirement for imposing a Gissel order is that the Board

find that the Union enjoyed a pre-election majority in the relevant

unit. Evergreen argues that the Board wrongly rejected its challenge

to six authorization cards and that Evergreen did not in fact have a

pre-election majority. Evergreen stated (1) that none of the six signers

testified nor did any who witnessed their signatures testify, and (2)

that no one testified that these employees returned cards directly to a

solicitor, or acknowledged signing the cards. Evergreen believes that

one of these two forms of evidence is required to authenticate these

cards. 

The Board found that, on June 15, 2002, the Union possessed

signed authorization cards from 62 of the 115 unit employees. Evergreen challenges six cards: those signed by employees Michael Biscocho, Katelin Li, Virginia Huang, Marina Peda, Michael Kelly, and

Paresha Shah. Since fifty-six cards are uncontested, the Board’s finding of majority status must be upheld if it properly counted any two

contested cards. 

The Board found that the Biscocho and Li cards were valid on the

basis of the credited testimony of Union President Robert Levy. At

a meeting on April 15, 2002, Levy distributed authorization cards to

employees and, at the end of that meeting, six to ten employees

returned signed cards. He specifically identified the signed cards of

Biscocho and Li as among those returned to him. "It is well settled

that absent exceptional circumstances, the ALJ’s credibility findings,

‘when adopted by the Board are to be accepted by the [reviewing]

court.’" NLRB v. Air Prods. & Chems., Inc., 717 F.2d 141, 145 (4th

Cir. 1983) (citation omitted). 

EVERGREEN AMERICA CORP. v. NLRB 11
Contrary to Evergreen’s contention, neither Levy’s failure to witness the signing of the cards nor his lack of personal acquaintance

with Biscocho or Li precludes his authentication of their cards. The

Board has long held that it will accept as authentic any authorization

card returned by the signer to the solicitor. See McEwen Mfg. Co., 172

NLRB 990, 992, 993 (1968) (cards of Palk and Black), enforced sub

nom. Clothing Workers v. NLRB, 419 F.2d 1207, 1209 (D.C. Cir.

1969). Accord NLRB v. Gen. Wood Preserving Co., 905 F.2d 803,

812 (4th Cir. 1990). This is true even when the solicitor is confused

about who returned the cards. See Photo Drive Up, 267 NLRB 329,

363 (1983) (Sweeney card); Stride Rite Corp., 228 NLRB 224, 235

(1977) (cards of Jones and Michel). We find that the cards of Biscocho and Li were properly counted. 

The other four contested cards were solicited by employee Maria

Magbanua, who gave each employee a card in an envelope. All four

employees returned the envelopes to her a few minutes later, saying

"here." (J.A. 60-61, 63-68.) Magbanua did not open the envelopes,

but gave them to her husband, employee Paolo Magbanua, who

opened them and found signed authorization cards, which he passed

on to the Union’s leading employee organizer. (J.A. 63, 66, 96-98,

103-04.) 

The Board found (J.A. 1132, 1145) that these cards were valid

under a "chain of custody" theory. The short time between the distribution of the cards in envelopes and their return in the same envelopes, along with the employees’ comment "here," strongly suggested

to the Board that the employees had signed the cards and were returning them to the solicitor. When Paolo Magbanua opened the envelopes, he found signed cards in them. We believe this strengthens the

inference that the signed cards had been in the envelopes when they

were returned to Magbanua. In addition, Huang had asked for a card

and said she wanted to join the Union, Peda had called Maria and said

she wanted to join the Union, and Kelly and Shah had said they

wanted union representation in telephone conversations with the Magbanuas. The Board was warranted in concluding that their cards were

like the one, solicited by one brother and returned to another, which

was found valid in Sheraton Hotel Waterbury, 312 NLRB 304, 346

(1993), enforcement of bargaining order denied on other grounds, 31

12 EVERGREEN AMERICA CORP. v. NLRB
F.3d 79, 83-85 (2d Cir. 1994). Accordingly, these four cards were

properly counted.

Having affirmed the Board’s determination that Evergreen committed numerous labor practice violations, we hold that the second

requirement for imposing a Gissel order, that the Board find the

employer committed an unfair labor practice, is satisfied. In fact,

Evergreen’s violations were some of the worse in magnitude and frequency. The Board found that Evergreen violated the Act by unlawfully interrogating employees on thirteen occasions; soliciting

employee grievances and implicitly promising to remedy them on fifteen occasions; explicitly making the same promise on eight occasions; threatening reprisals on nine occasions; twice instructing

employees not to attend union meetings and to throw away union literature without reading them; and once creating the impression those

employees’ union activities were under surveillance. The violations in

Overnite pale in comparison. The Board further found that Evergreen

violated Sections 8(a)(3) and (1) of the Act by granting large and

unprecedented across-the-board wage increases to bargaining-unit

employees, and promoting an unprecedented number of such employees prior to the election, and by granting eight other benefits, before

and after the election, to dissuade the employees from supporting the

Union. 

The other Gissel requirements are also met. The Board found that

the Union had a majority of sixty-two but lost by a ballot count of

sixty-one to fifty-two. The Board concluded that the Union’s majority

status dissipated as a result of Evergreen’s unfair labor practices (i.e.,

unprecedented wage increases, unprecedented promotions, promises

to correct grievances, and the new and improved benefits). 

Thus, like in Overnite, the Board did not err in analyzing the first

three Gissel factors. In contrast to Overnite, however, the Board here

also carefully explained, considering the required factors, "why the

possibility of conducting a fair election would be slight and that

employees’ pre-violation sentiments would be better protected by a

bargaining order." Overnite, 280 F.3d at 436. First, the Board found

that the possibility of conducting a fair reelection would be slight

because of the lasting and pervasive effect of Evergreen’s unfair labor

violations, many of which were committed by high management offiEVERGREEN AMERICA CORP. v. NLRB 13
cials, and the benefits provided to employees could not be undone.

The Board relied on the dozens of pre- and post-election violations

noted, all of which are supported by substantial evidence. Cf. Overnite, 280 F.3d at 435, 436 (rejecting the Board’s reasoning because

"its assessment rested almost entirely on its conclusion that the [postelection] wage increase violated § 8(a) of the Act," a finding that was

not supported by substantial evidence). Further, in Overnite, an

important reason for our decision to deny the Board’s grant of a bargaining order was evidence in the record that the management team

responsible for the labor practice violations had left the company.

However, here there is no evidence in the record that there has been

a change in the management team responsible for Evergreen’s labor

practice violations. 

Also, the Board found it significant that Evergreen did not desist

in its unlawful conduct even after the Union lost the election. Evergreen committed five additional violations after the election by providing additional benefits to employees, "such post election action

demonstrates [Evergreen’s] continuing propensity to violate the

[National Labor Relations Board Act] and indicates that the coercive

effects of its unlawful conduct are likely to linger, making it highly

unlikely that a free fair election can be held." (J.A. 1134.) Thus, the

Board properly concluded the employees’ pre-election sentiments

would be better protected by a bargaining order than by a new election. 

The Board also made explicit findings that employee turnover and

the passage of time did not make a reelection an appropriate remedy.

In Overnite, another important reason for our decision to overturn the

Board’s bargaining order was evidence that employee turnover had

been substantial in the effected bargaining units. However, here the

Board found that Evergreen while asserting that it had added 100

employees between 2002 and 2004, "did not indicate how many, if

any, of these 100 new employees were additions to the bargaining

unit that was subjected to Evergreen’s numerous and serious unfair

labor practices." (J.A. 1135.) Furthermore, the Board found that Evergreen did not present any evidence of the number of employees who

were in the unit during the commission of the unfair labor practices

and had since departed from the unit. Thus, Evergreen did not show

a "danger that a bargaining order that is intended to vindicate the

14 EVERGREEN AMERICA CORP. v. NLRB
rights of past employees will infringe upon the rights of current ones

to decide whether they wish to be represented by a union." Flamingo

Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1170-71 (D.C. Cir. 1998).

With regard to the passage of time, the Board found that four years

had passed since the commission of Evergreen’s unfair labor practices, and more than one year since the date of the ALJ’s decision.

The Board concluded that the passage of time since Evergreen’s violations did not make the Gissel order unacceptable, and the Board

specifically noted that courts had enforced bargaining orders involving comparable time periods. Furthermore, the passage of time since

the violations occurred until when the Board issued the bargaining

order (four years) is significantly less than the same time period in

Overnite (six years).2 Based on the Board’s careful and detailed reasoning, which is supported by substantial evidence in the record, we

defer to its findings and conclusions.

IV.

For the foregoing reasons, we enforce the bargaining order.

PETITION FOR REVIEW DENIED;

CROSS-APPLICATION FOR ENFORCEMENT GRANTED

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

"Because an election, not a bargaining order, remains the traditional, as well as the preferred, method for determining the bargaining

agent for employees, the extraordinary and drastic remedy of forced

bargaining . . . is reserved for only the most unusual cases." So held

this court in an en banc ruling just six years ago, in rejecting the

NLRB’s attempt to impose a bargaining order to remedy an employer’s across-the-board wage increase granted just before a unionrepresentation election. See Overnite Transp. Co. v. NLRB, 280 F.3d

2

It should also be noted that the bargaining order was issued following

the issuance of an injunction by the federal district court in New Jersey,

ordering Evergreen to recognize and bargain with the Union. Our order

essentially helps to maintain those obligations. Kendellen v. Evergreen

America Corp., 428 F.Supp.2d 243 (D.N.J. 2006). 

EVERGREEN AMERICA CORP. v. NLRB 15
417, 436 (4th Cir. 2002) (en banc) (internal citations and quotations

omitted). Because neither the majority nor the Board has adequately

explained why the labor violations here, arguably less egregious than

those in Overnite, make this among "the most unusual cases" warranting "the extraordinary and drastic remedy of forced bargaining," id.,

I respectfully dissent from Part III of the majority’s opinion.

I.

I begin, as I must, with our controlling precedent in Overnite. Facing a Teamsters campaign to unionize several of its trucking service

centers, Overnite Transportation Company ("Overnite") responded by

granting a supplemental and sizeable national pay increase,

announced just one month after the company’s regularly scheduled

annual wage increase and implemented while dozens of union elections were pending. Overnite trumpeted the supplemental wage

increase in a letter to all employees and in its newsletter but explained

that employees at recently unionized service centers were ineligible

for the increase because unilateral benevolence by Overnite was prohibited without prior union approbation. In subsequent litigation, the

Board found that Overnite’s actions violated the NLRA. Relying on

the severity of the violations and the fact that they were carried out

by high-ranking company officers, the Board concluded that the traditional remedy of ordering new elections was insufficient to protect

Overnite’s employees, instead imposing a "Gissel Category II" order1

requiring Overnite to recognize the Teamsters as the bargaining representative for the employees. 

1The Supreme Court first announced the availability of this remedy in

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). A forced bargaining

order under Gissel requires an employer to recognize and negotiate with

a union, as representative of the employees in question, despite the fact

that the union did not prevail in a free election. A Gissel order may be

imposed in those cases "marked by ‘outrageous’ and ‘pervasive’ unfair

labor practices" ("Category I" cases), or in "less extraordinary cases

marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes"

("Category II" cases). Id. at 613-14. There is no dispute that the order

imposed here fell under Category II. 

16 EVERGREEN AMERICA CORP. v. NLRB
On petition for review, this court unanimously agreed with the

Board that Overnite’s actions were intended to improperly influence

union elections, in violation of the NLRA. See Overnite, 280 F.3d at

428. A majority of this court disagreed with the Board, however, as

to the appropriate remedy for Overnite’s NLRA violations. Id. at 428-

29. 

Drawing on long-standing circuit precedent, the Overnite court

explained that the Board cannot impose a Category II Gissel order

without first making "detailed findings specifically supporting [inter

alia] the facts that . . . the possibility of conducting a fair reelection

would be slight; and . . . the employees’ preelection sentiments would

be better protected by a bargaining order than by a new election." Id.

at 436. The court explained that a Gissel order is inappropriate unless

the Board finds that the unlawful conduct is likely to recur, or its

effects likely to persist without being dissipated by time, thereby rendering ordinary remedies ineffective. Id. Applying these rules to

Overnite’s violations, this court concluded that the Board had

"spoke[n] only in a conclusory manner" and had not "direct[ed] the

court to any factually based reason why new elections could not be

fair" some six years after Overnite’s last NLRA violation. Id.2

I would conclude here, like this court did in Overnite, that the

Board failed to demonstrate with "scrupulous specificity" why a new

election would not be fair and why the employees’ representational

desires would be better protected by the "drastic remedy of forced bargaining."3

Id. at 436, 438. As in Overnite, Evergreen’s primary NLRA

violation was awarding a widespread wage increase against the backdrop of pending union elections. Furthermore, there is scant evidence

that Evergreen persisted in violating the NLRA after the 2002 elections, just as the Board in Overnite could not there point to ongoing

2The Overnite court also pointed to employee and management turnover as additional evidence that new elections could be fair. 280 F.3d at

437. 

3These failings are those of the Board, not the majority. It is therefore

the Board on remand, and not the majority by post-hoc rationalization,

that should remedy the deficiencies by either offering adequate support

for the levying of a bargaining order or by imposing less draconian penalties upon Evergreen. 

EVERGREEN AMERICA CORP. v. NLRB 17
violations. In fact, an Evergreen wage increase awarded in 2003 was

found to be proper in a separate proceeding. Since this full court

found a bargaining order inappropriate in Overnite, I cannot see how,

on the comparable or less egregious violations before us, a bargaining

order is warranted.4

The Board (and the majority, by deferring to the Board), however,

makes much of the minor grants of benefits Evergreen implemented

in the months following the 2002 election. See Majority Op. at 8-9,

12-14. The Board reasoned that, since Evergreen became aware of

some of these grievances through solicitation just before the election,

its remedying the grievances in the months after the election "fortif-

[ied] the impression in the minds of employees that the benefit grants

were designed to dissuade them from supporting the Union." Evergreen Am. Corp., 348 N.L.R.B. No. 12, at 3 (2006). The Overnite

4The majority’s assertion that the violations in Overnite "pale in comparison" to those here mischaracterizes the scope of the violations in

Overnite. See Majority Op. at 13. Fairly read, the record before us

reveals that the wage increase at issue in Overnite was decidedly more

inappropriate than that here. The majority neglects to acknowledge that,

in Overnite, the timing of the wage increase, not just the scope, was

found to be improper. See Overnite, 280 F.3d at 429. Furthermore, the

majority’s listing of other violations that were found here ignores the fact

that similar or worse violations were found in Overnite. See Overnite

Transp. Co., 329 N.L.R.B. No. 91, at 5 (1999) (destruction of pro-union

literature, express promises of benefits, solicitations of employee grievances, and threats of plant closure and loss of jobs if the union prevailed). Indeed, in Overnite, the other violations were so rampant that the

parties entered into a settlement agreement to resolve many of them

before the case ever reached the Board. See id. at 2. 

Nor do the violations here rise to the level of those previously found

by this court to warrant imposition of a Gissel Category II bargaining

order. See, e.g., NLRB v. CWI of Maryland, Inc., 127 F.3d 319 (4th Cir.

1997) (enforcing bargaining order where employer constructively discharged all bargaining unit employees); NLRB v. So-Lo Foods, Inc., 985

F.2d 123 (4th Cir. 1992) (enforcing bargaining order where employer

threatened to close its stores if the union were elected); NLRB v. Maidsville Coal Co., Inc., 718 F.2d 658 (4th Cir. 1983) (enforcing bargaining

order where employer discharged four union supporters for their union

activities and interrogated employees regarding their union sympathies).

18 EVERGREEN AMERICA CORP. v. NLRB
court disallowed the Board a similar inference, and I would find it

unreasonable here as well.5 Absent evidence demonstrating that these

benefits, of such moment as a relaxation of the dress code and an

expansion of the guest list for the Christmas party, were awarded with

the intention of interfering with union activities or elections, the benefit grants alone simply do not support the inference that a new election could not be fair. To allow the Board to infer that post-election

grants of benefits render a hypothetical, unscheduled future election

unfair would seem to lock employers and employees into maintaining

the status quo after an election, even when the union lost the election.

See Overnite, 280 F.3d at 430-31 (finding proper a wage increase that

was awarded after the majority of elections had already been held).6

The Board also failed to make the detailed findings, required by

Overnite before a bargaining order can be imposed, that the significant lapse of time since the violations had not made practicable a

new, fair election. Rather, the Board summarily concluded, "In these

circumstances, we do not consider the passage of time since [Evergreen’s] violations unacceptable for Gissel purposes." Evergreen Am.

Corp., 348 N.L.R.B. No. 12, at 5. This conclusion improperly implies

that Gissel orders are the default or preferred remedy, not an "extraor5After the initial national wage increase, Overnite granted another

wage increase the following year. Because the second increase was

offered to all employees and post-dated the fervent union campaign of

the prior year, this court rejected the Board’s conclusions that this postelection wage increase was improper and would render new elections

unfair. See Overnite, 280 F.3d at 430-31. 

6The majority asserts repeatedly that it is appropriate to defer to the

Board’s factual findings if they are supported by substantial evidence.

See Majority Op. at 5, 11, 14, 15. The majority conflates, however, the

Board’s factual findings regarding the existence of pre- and post-election

NLRA violations with its predicate findings, required by Overnite before

a bargaining order may be imposed, that those violations would render

a new election unfair. Put differently, that the minor post-election grants

of benefits might constitute NLRA violations does not mean that the

Board can assume that "the possibility of conducting a fair reelection

would be slight; and . . . the employees’ preelection sentiments would be

better protected by a bargaining order than by a new election." Overnite,

280 F.3d at 436. It is the Board’s finding that a new election would be

unfair that is not supported by substantial evidence. 

EVERGREEN AMERICA CORP. v. NLRB 19
dinary and drastic remedy . . . reserved for only the most unusual

cases." Overnite, 280 F.3d at 436 (internal quotations omitted). The

Board’s conclusion is also in direct conflict with our reasoning in

Overnite that, "‘It strains credulity to believe that [a company’s]

unfair labor practices, such as they were, had such long lasting effects

that a fair rerun election could not have been held four years later,

much less today, some six years after the original violations

occurred.’" Id. at 437 (quoting Be-Lo Stores v. NLRB, 126 F.3d 268,

282 (4th Cir. 1997)). Here, too, six years have passed since the initial

elections,7 and the Board’s conclusory brush-off of the aging of Evergreen’s sins cannot be a "specific[] . . . detailed finding[]" sufficient

to overcome our preference for new elections. Id. at 436. 

Finally, the Board hardly passed on "the efficacy of ordinary remedies," id., such as new elections, at all, aside from a single conclusory

sentence. See Evergreen Am. Corp., 348 N.L.R.B. No. 12, at 5 ("[W]e

find that the employees’ representational desires . . . would be better

protected by a bargaining order than by traditional or special remedies."). But democratic elections form the bedrock of our labor system for good reason:

[B]ecause circumstances . . . may change during the interval

between the occurrence of the employer’s unfair labor practices and the Board’s disposition of a case, there is an obvious danger that a bargaining order that is intended to

vindicate the rights of past employees will infringe upon the

rights of the current ones to decide whether they wish to be

represented by a union. 

Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1170-71 (D.C.

Cir. 1998) (internal quotations and alterations omitted). I find no justification in the Board’s order for abandoning the presumption that a

7The majority asserts that six years passed between the original violations in Overnite and the issuance of the Board’s order. See Majority Op.

at 15. This is simply inaccurate. In Overnite, the Board’s 1999 order followed the 1995 violations by four years. This timespan is relevant

because it parallels the relevant span here: four years from violations to

Board order, and six years from violations to the opinion of this court.

20 EVERGREEN AMERICA CORP. v. NLRB
new Board-monitored, free election can adequately capture the

desires of Evergreen’s current workforce.8

II.

At bottom, I view this case as falling squarely under our recent en

banc precedent in Overnite. I would likewise hold, then, that "[b]y

declining to follow our long-standing precedents for the application

of Gissel, the Board improperly bypassed the employees’ will on the

question of representation, frustrating the fundamental policy of

employee democracy established by Congress in the labor laws." Id.

at 422. I would accordingly grant in part Evergreen’s petition for

review, deny the cross-application for enforcement, and remand for

new elections.

8Contrary to the majority’s assertion, our granting the petition for

review would not upset any permanent "obligations" of Evergreen to the

union. See Majority Op. at 15 n.2. The temporary injunction issued in

2006 by the United States District Court for the District of New Jersey,

Kendellen v. Evergreen Am. Corp., 428 F. Supp. 2d 243 (D.N.J. 2006),

provided the union only temporary relief "pending the Board’s resolution

of [the] unfair labor practice proceedings." Id. at 245. The Board having

since issued its order, the Kendellen injunction no longer governs Evergreen’s relationship with the union, and certainly would present no bar

to this court finding that the Board erred by imposing a bargaining order.

EVERGREEN AMERICA CORP. v. NLRB 21