UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


TRACTN WHSLE CTR CO

v.

NLRB


99-1336a

D.C. Cir. 2000


*	*	*


Tatel, Circuit Judge: Petitioner challenges the National  Labor
Relations Board's determination that it committed  unfair labor
practices in response to a union organizing  campaign. Petitioner also
challenges the Board's imposition  of a bargaining order. Because we
conclude that the Board's  unfair labor practice determinations are
supported by sub- stantial evidence and that the Board adequately
explained the  need for the bargaining order, we deny the petition for
review  of those issues and grant the Board's cross-petition for en-


I


Petitioner Traction Wholesale Center Company, Inc., a  wholesale tire
distributor, buys tires and wheels from manu- facturers and larger
distributors, reselling them to tire retail- ers and gas stations.
Operating out of four warehouses--two  in New Jersey and one each in
Delaware and Philadelphia-- Traction employed approximately thirty-six
people at the time  of the events that gave rise to this case.
Traction Wholesale  Ctr. Co., Inc., 328 NLRB No. 148, 1999 WL 1186753
at *10  (July 28, 1999). The unfair labor practices at issue occurred 
when Traction learned that a union had garnered support  from a
majority of its employees. As determined by an  administrative law
judge, the relevant facts are as follows.


In March 1997, several Traction employees approached  Charles
Schiavone, one of the company's Philadelphia drivers,  "seeking
guidance on how to form a union." Id. at *10. A  seven-year Traction
veteran, Schiavone contacted and met  with the Teamsters Union, Local
No. 115, about organizing  warehouse employees and drivers working in


four warehouses. At the end of that meeting, Schiavone  signed a union
authorization card designating the union as his  "chosen
representative in all matters pertaining to wages,  hours, and working
conditions." Id. He also took blank  authorization cards to distribute
to Traction drivers and  warehousemen. During the next month,
Schiavone kept the  union apprized of his organizing efforts. By April
14, the  union had received signed authorization cards from eleven of 
Traction's twenty drivers and warehousemen. Id. at *11.


Armed with the eleven authorization cards, two union rep- resentatives
went to the Philadelphia warehouse on April 15  to ask Traction to
recognize the union. There they met with  the on-site manager, Scott
Adams, and showed him the  signed authorization cards. Id. at *11.
When Adams told  the union representatives that he had no authority to
recog- nize the union, they asked him to deliver a letter to
Traction's  owners, Joseph O'Donnell and Jeffrey Cohen, in which the 
union demanded recognition. Id. at *12.


Immediately after the union representatives left, Adams  summoned
Schiavone to his office, telling him that he was  upset that Schiavone
had not told him about the union  organizing effort and demanding to
know who had started it.  Id. at *15, 22. Adams warned that Traction
would either  close the warehouse or subcontract for delivery services
if the  union campaign succeeded. Id. at *15. If Schiavone "wanted  to
be a union thug like other union supporters who destroy  other
people's property," Adams said, "then go right on  ahead." Adams then
told Schiavone to "get the fuck out of  here." Id. When Schiavone
called Adams the next morning  asking whether he should return to
work, Adams told him  that he had been fired. Id.


On the same day that the union representatives met with  Adams and
showed him the eleven signed cards, Adams  asked Kevin Tryon, another
Philadelphia driver, whether he  had signed an authorization card. Id.
at *16, 23. When  Tryon, who in fact had signed a card, answered no,
Adams  revealed that he had seen Tryon's signature on a card. Id. at 
*16. Later that evening, Adams told Tryon that Traction 


would "rather pay niggers $5.00 an hour" than work with the  union. Id.
He also told Tryon that Traction was "not afraid  to close down, if
that's what it takes." Id.


That same day, Adams announced two policy changes for  the Philadelphia
warehouse. First, employees would have to  begin "punching out" and
"punching in" on the time clock to  document that they took no more
than thirty minutes for  lunch. Id. at *16-17. Second, employees could
no longer use  company vans after work for personal reasons. Id. Until
 this announcement, Adams had allowed such use even though  company
policy prohibited it.


The union then filed a representation petition, and the  Board ordered
an election. During the two months before  the election, Traction's
two owners and Adams conducted two  meetings with the Philadelphia
drivers and warehousemen  that led to additional unfair labor practice
charges. At the  first meeting, on April 23, Adams told Tryon that
although he  was "due for a raise, he would not be getting it...." Id.
at  *18. Also during that meeting, Cohen (one of the owners)  asked
the employees what Traction had done to make them  bring in a union,
telling them not only that Traction could  offer them more than the
union, but that if they had any  personal or job-related problems,
Traction could help. Id. at  *18, 24. At a second meeting, this one on
June 3, Cohen told  the employees that Traction would "give them more
than the  union" and that once they "got past this thing, we can move 
on to something bigger and better." Id. at *24.


The union lost the election. Sixteen employees voted  against the
union, two voted for it, and two ballots were  contested. Id. at *19.
Following an evidentiary hearing, an  administrative law judge found
that Traction had committed a  series of unfair labor practices in
violation of sections 8(a)(1)  and (3) of the National Labor Relations
Act, 29 U.S.C.  ss 158(a)(1), (a)(3), by firing Schiavone, denying
Tryon's  raise, and changing its policies with respect to personal use
of  vans and clocking in and out for lunch. Id. at *37. The ALJ  also
concluded that Adams' comments to both Schiavone and  Tryon amounted
to unfair labor practices in violation of 


section 8(a)(1), as did Cohen's comments to Traction's Phila- delphia
employees. Id. The ALJ recommended that the  Board invalidate the
election and issue a bargaining order.  Id. at * 38.


The Board agreed that Traction had committed the enu- merated unfair
labor practices and that a bargaining order  was appropriate. Id. at
*1. The Board disagreed with the  ALJ on just one issue. Despite
concluding that Traction had  committed an unfair labor practice by
changing its van policy,  the ALJ recommended no remedy because
Traction had  offered evidence that its insurance policy would not
cover  personal use of company vans. Id. at *38 n.30. Without 
explanation, the Board ordered Traction to rescind its person- al use
prohibition. Id. at *1 n.2. Member Brame dissented  on two grounds: he
thought that Cohen's remarks at the  April 23 and June 3 meetings did
not amount to unfair labor  practices; he also thought the bargaining
order inappropriate  because, in his view, the union had never
attained majority  support. Id. at *5-6.


In its petition for review, Traction argues that the unfair  labor
practice charges stemming from the Schiavone firing,  the changed van
policy, the denial of Tryon's raise, and  Cohen's comments are not
supported by substantial evidence  in the record. Traction also
challenges two of the Board's  remedies: the reinstatement of its
personal van use policy  and the bargaining order. With respect to the
latter, Trac- tion argues that the Board failed to satisfy this
circuit's strict  standards for imposing bargaining orders. See, e.g.,
Avecor,  Inc. v. NLRB, 931 F.2d 924, 934-39 (D.C. Cir. 1990). The 
Board cross-petitions for enforcement.


II


Section 8(a)(1) of the NLRA makes it an unfair labor  practice for
employers "to interfere with, restrain, or coerce  employees" in the
exercise of their rights "to self- organization, to form, join, or
assist labor organizations, to  bargain collectively through
representatives of their own  choosing, and to engage in other
concerted activities for the 


purpose of collective bargaining or other mutual aid or pro-
tection...." 29 U.S.C. ss 158(a)(1), 157. Section 8(a)(3)  makes it an
unfair labor practice for employers "by discrimi- nation in regard to
hire or tenure of employment or any term  or condition of employment
to encourage or discourage mem- bership in any labor organization."
Id. s 158(a)(3). To es- tablish that an employer's conduct (in this
case, Schiavone's  firing, the change in van policy, and the denial of
Tryon's  raise) violates section 8(a)(3), the general counsel must
first  show that the "protected activity was a motivating factor in 
the adverse employment decision." Frazier Indus. Co., Inc.  v. NLRB,
No. 99-1297, Slip Op. at 8 (D.C. Cir. 2000) (internal  quotation marks
omitted). If this prima facie showing is  made, the burden shifts to
the employer to demonstrate that  "it would have made the adverse
decision even had the  employee not engaged in protected activity."
Vincent Ind.  Plastics, Inc. v. NLRB, 209 F.3d 727, 735 (D.C. Cir.
2000)  (citing Wright Line, Inc., 251 N.L.R.B. 1083, 1089 (1980)).  In
determining whether an employer had a discriminatory  motive, "the
NLRB may 'consider[ ] such factors as the em- ployer's knowledge of
the employee's union activities, the em- ployer's hostility toward the
union, and the timing of the em- ployer's action.' " Id. (quoting
Power Inc. v. NLRB, 40 F.3d  409, 418 (D.C. Cir.1994)).


Our review of Board unfair labor practice determinations is  quite
narrow. "The Board's findings of fact, if supported by  substantial
evidence, are conclusive." Avecor, 931 F.3d at  928. In reviewing the
Board's conclusions, "[w]e ask not  whether [petitioner's] view of the
facts supports its version of  what happened, but rather whether the
Board's interpreta- tion of the facts is reasonably defensible."
Harter Tomato  Prods. Co. v. NLRB, 133 F.3d 934, 938 (D.C. Cir. 1998) 
(internal quotation marks omitted). Moreover, "we must  accept the
ALJ's credibility determinations, as adopted by the  Board, unless
they are patently insupportable." Exxel/At- mos, Inc. v. NLRB, 28 F.3d
1243, 1246 (D.C. Cir 1994). "We  are even more deferential when
reviewing the Board's conclu- sions regarding discriminatory motive,
because most evidence  of motive is circumstantial." Vincent Plastics,


734. Bearing this deference in mind, we turn to Traction's  four
challenges to the Board's unfair labor practice determi- nations.


Schiavone Firing


This record contains more than substantial evidence to  support the
Board's conclusion that anti-union animus moti- vated the Schiavone
firing. Adams fired Schiavone immedi- ately after learning not only
that the union had obtained  eleven authorization cards, but that
Schiavone had signed  one. Equally indicative of anti-union animus,
the ALJ con- cluded that Adams violated section 8(a)(1) by telling
Tryon  and Schiavone that the company would shut down before  working
with a union (a conclusion that Traction does not  contest). See
Vincent Plastics, 209 F.3d at 735 ("Evidence  that an employer has
violated section 8(a)(1) of the Act can  support an inference of


Challenging the Board's determination that the general  counsel had
made out a prima facie case of anti-union animus,  Traction maintains
that Adams decided to fire Schiavone on  April 11, four days before
learning that employees had autho- rized the union. Traction claims
that it decided to fire  Schiavone because of two incidents having
nothing at all to do  with the union. The first involved Schiavone's
alleged misuse  of a company policy that entitled employees to
discounts on  tire purchases. When Schiavone bought tires in early
April,  he took not just the employee discount to which he was 
entitled, but also a discount available only to cash-paying 
customers. The latter discount reduced the price of the tires  by an
additional $6.59. The other incident involved graffiti  that Adams
found on the warehouse wall that said "Chuck"  and "Chuck is cool."


Adams testified that on April 11, after discovering that  Schiavone had
taken the extra discount and after seeing the  graffiti, he told owner
O'Donnell that he planned to fire  Schiavone. Adams further testified
that he and O'Donnell  had agreed to fire Schiavone on Monday, April
14, but  because one employee called in sick and another was on 


vacation on that day, he postponed firing Schiavone until the  next
day. O'Donnell's testimony confirmed the basic ele- ments of Adams'
story. Relying on Adams' and O'Donnell's  testimony, Traction argues
that Schiavone's firing could not  have been motivated by
discriminatory animus because on  April 11--the day it decided to fire
him--it was unaware of  the union organizing campaign.


Traction's argument suffers from a fatal flaw: The ALJ  credited
neither Adams' nor O'Donnell's testimony. "It was  patently obvious,"
the ALJ found, "that Adams could not  keep his story straight on
several matters, and that much, if  not all, of his testimony was
simply fabricated to suit [Trac- tion's] case." Traction, 1999 WL
1186753 at *19. Calling  Adams' testimony "self-contradictory and
filled with inconsis- tencies," the ALJ rejected it as "simply not
credible." Id.  O'Donnell's testimony, the ALJ found, was "equally
unpersua- sive." Id. at *20. Traction has offered nothing to suggest 
that the ALJ's credibility determinations are "patently insup-
portable." See Exxel/Atmos, 28 F.3d at 1246. Absent  O'Donnell's and
Adams' testimony, all evidence in the record,  including the timing of
the firing and the section 8(a)(1)  violations, points to anti-union


A prima facie case of discriminatory animus having been  established,
Traction could have avoided an unfair labor prac- tice finding only by
demonstrating that it would have fired  Schiavone regardless of his
union activities. Traction failed  to meet this burden. The Board
concluded that neither the  discount policy error nor the graffiti
otherwise would have led  to Schiavone's firing. Substantial evidence
supports the  Board's conclusion. O'Donnell testified not only that
employ- ees often made price code mistakes, but also that when they 
inadvertently took extra discounts, the company simply re- quired
repayment of the discounted amount. Traction, 1999  WL 1186753 at *27.
Moreover, from his "observation of  [Schiavone's] demeanor on the
witness stand and throughout  the hearing," the ALJ found that
Schiavone was not "some- one who would risk losing his job of 7 years
for a meager  $6.59." Id. With respect to Traction's other explanation
for  firing Schiavone, the ALJ credited Schiavone's testimony that 


the graffiti had been on the wall for close to a month before  Traction
fired him. Id. Disbelieving both Adams and  O'Donnell and believing
Schiavone, the ALJ thought it  "strain[ed] credulity to believe that
Adams, having declined to  take action against Schiavone when he first
observed the  writing sometime in March, would decide one month later
to  discharge Schiavone, in part, for such activity." Id.


To be sure, the ALJ could have chosen to credit record  evidence
supporting Traction's version of events. The only  question before us,
however, is whether substantial evidence  supports the Board's view of
the disputed events, not Trac- tion's. See Frazier, Slip Op. at 9
(affirming Board's unfair  labor practice finding because "[a]lthough
[the employer's]  interpretation of evidence may be reasonable, the
Board's  finding to the contrary was supported by substantial evi-
dence"). Because we find no basis for questioning the ALJ's 
credibility determinations, we affirm the Board's conclusion  that the
Schiavone firing amounted to an unfair labor prac- tice.


Personal Use of Company Vans


Challenging the Board's determination that it violated sec- tions
8(a)(3) and (1) by changing its van policy in retaliation  for its
employees' organizing efforts, Traction argues (as it  did with
respect to the Schiavone firing) that it could not have  been
motivated by anti-union animus. When O'Donnell told  Adams to start
enforcing the company policy prohibiting  personal use of vans (on
April 11), the company says, it did  not know about the union's
organizing efforts. According to  Adams, O'Donnell told him to start
enforcing the personal use  prohibition because the company had
received a summons for  an unpaid New York parking ticket on one of
the vans.  Traction also offered a letter from its insurance company 
stating that its policy does not cover personal use of company  vans.
From this, Traction argues that substantial evidence  does not support
the Board's unfair labor practice determina- tion.


Again, Traction misunderstands the substantial evidence  standard.
Having discredited both Adams' and O'Donnell's  testimony, the ALJ
found that they had not discussed the van  policy on April 11.
Traction, 1999 WL 1186753 at *31.  "[T]he more credible scenario, and
the one I accept as  true,"--and the one to which we owe
deference--"is that  Adams never received any such instruction from
O'Donnell in  the first place, and imposed the ban only after learning
that  his Philadelphia store employees were supporting the Union." 
Id. The ALJ also found that the insurance company letter  could not
possibly have motivated Adams' April 15 van policy  announcement
because the letter was dated May 14. Id. at  *31 n.27. Absent
Traction's proffered explanations, the only  record evidence shows
that employees were told on April 15,  the same day Adams spoke with
the union representatives,  that he would start enforcing the van
policy. Given this  timing, together with Adams' threats to close the
company if  the union prevailed, the ALJ's conclusion that the
enforce- ment of the van policy was motivated by discriminatory 


Insisting that its van policy was not in fact motivated by  anti-union
animus, Traction maintains that after April 15,  Adams made exceptions
for certain employees, including  Tryon, a known union supporter.
Again, while such evidence  may well support Traction's version of the
events, the critical  point is that substantial evidence supports the
ALJ's view of  the evidence. See Frazier, Slip Op. at 9. We therefore
find  no deficiency in the Board's conclusion that the change in van 
policy constituted an unfair labor practice.


The Board's remedy is a different matter. The ALJ  recognized that
rescission was the ordinary remedy for this  type of unfair labor
practice, but he thought it "improper" to  order Traction to rescind
the unilateral change, i.e., to order  it to reinstate its prior
practice of allowing employees person- al use of vans, because it
"appears to be the case" that "such  practice is prohibited by its
insurance policy." Traction, 1999  WL 1186753 at *38 n.30. The Board
disagreed. Stating only  that "rescission ... is the customary remedy
for the viola- tions found in this case," it rejected the ALJ's


tion and directed Traction to rescind "the unilateral changes  in ...
the van policy." Id. at 1 n.2. Of course, the Board  "is free to
substitute its judgment for the ALJ's," Local 702,  Int'l B'hood of
Elec. Workers, AFL-CIO v. NLRB, 2000 WL  520950 at *2 (D.C. Cir.
2000), but "when the Board reverses  an ALJ it 'must make clear the
basis of its disagreement.' "  Mathews Readymix, Inc. v. NLRB, 165
F.3d 74, 77 (D.C. Cir.  1999) (quoting United Food & Commercial
Workers Int'l  Union, Local 152 v. NLRB, 768 F.2d 1463, 1470 (D.C.Cir.
1985). See also Chicago Local No. 458-3M v. NLRB, 206  F.3d. 22, 29
(D.C. Cir. 2000) ("In order for the court properly  to review the
Board's decision, it 'must be able to discern the  rationale'
underlying the Board's conclusions.") (quoting Oil,  Chemical & Atomic
Workers Int'l Union v. NLRB, 46 F.3d  82, 90 (D.C.Cir.1995)). Because
the Board has failed to  explain, in either its decision or its brief,
why it disagreed  with the ALJ that the insurance policy made
rescission  inappropriate, we grant the petition for review with


Tryon Raise


In testimony credited by the ALJ, Tryon said that when he  began
working for Traction in early March, Adams told him  that he would
probably get a raise within thirty to sixty days.  Tryon testified
that at the April 23 meeting, Adams said:  "You're due for your raise
but now I can't give it to you  because of the union." Adams denied
promising Tryon a  raise, explaining that when Tryon requested one, he
refused  because he thought it would be "improper" to give Tryon any 
benefits during the union organizing campaign. Traction,  1999 WL


Again crediting Tryon's testimony over Adams', the ALJ  found Adams'
denial of the raise to have been motivated by  anti-union animus. Id.
at *28-29. As the ALJ concluded,  because Adams had promised Tryon a
raise, Adams was  obligated to act as he would have had no organizing
campaign  been underway, i.e., to give him the raise. See Perdue 
Farms, Inc., Cookin' Good Div. v. NLRB, 144 F.3d 830, 836 


(D.C. Cir. 1998) ("[A]s a general rule, an employer's legal  duty in
deciding whether to grant benefits while a representa- tion proceeding
is pending is to decide that question precisely  as it would if the
union were not on the scene.").


Traction argues that even if Adams had promised Tryon a  raise within
thirty to sixty days, because the denial of the  raise had not occured
until after sixty days, Tryon was no  longer entitled to it, leaving
Adams' explanation--that he  denied the raise because of his concern
that it might be  viewed as an unlawful benefit--as the only credible
evidence  in the record. To accept this argument, we would have to 
infer from the fact that Tryon was told that he was entitled to  a
raise within thirty to sixty days that he was not entitled to  the
raise unless he asked for it before the sixtieth day. Not  only do we
think this rather unlikely, but more important, the  ALJ chose not to
draw this inference.


Cohen Statements


Traction begins its challenge to the Board's determination  that Cohen
committed unfair labor practices at the employee  meetings on April 23
and June 3 by claiming that substantial  evidence does not demonstrate
that Cohen even made the  statements. This argument fails for the same
reason that  Traction's other substantial evidence challenges fail:
the ALJ  credited the General Counsel's witnesses and reached a dif-
ferent conclusion, a conclusion supported by substantial evi- dence.
Not only did Tryon testify that Cohen made the  statements, but Cohen
never directly contradicted Tryon.  Cohen did not testify at all about
the June 3 meeting, and  with respect to the April 23 meeting, "while
generally deny- ing making any unlawful remarks, [he] admitted to
recalling  'absolutely nothing' of what he or O'Donnell may have
said."  Traction, 1999 WL 1186753 at *24.


Traction next argues that even if Cohen made the April 23  statements,
they were not unlawful. (Traction does not ap- pear to challenge the
ALJ's ULP determination with respect  to Cohen's June 3 comments).
Tryon testified about Cohen's  statements at the April 23 meeting as
follows: "He just 


stated that if there was ever a problem, ... whether it be  personal or
job-wise, Traction was always there to help....  Somebody from
management or through the company was  always willing to help or lend
a hand." According to Tryon,  Cohen also asked the employees "what it
was that the compa- ny did wrong ... to bring somebody from the union
into the  company," and he told them that "Traction would be able to 
offer more than" the union.


Traction does not challenge the standard the Board uses to  determine
whether an employer's solicitation of grievances  constitutes an
unfair labor practice: Soliciting grievances is  not in itself an
unfair labor practice, but implicit or explicit  promises to correct
grievances may violate section 8(a)(1)  because "the combined program
of inquiry and correction"  suggests that "union representation [is]
unnecessary." Reli- ance Electric Co., 191 NLRB 44, 46 (1971), enf'd,
457 F.2d 503  (6th Cir. 1972). An employer who has not previously
solicited  grievances but who begins to do so in the midst of a union 
campaign creates a "compelling inference" that the employer  is
"implicitly promising" to correct the problems. Id. The  ALJ found,
and the Board agreed, that neither Traction nor  Cohen had any past
practice of soliciting grievances and that  there was a "compelling
inference" that Cohen was implicitly  promising to correct any
problems, a promise that was "clear- ly coercive and designed to show
that [management] alone  had the wherewithal to address and resolve
employee prob- lems." Traction, 1999 WL 1186753 at *1-2, 25.


Relying on Member Brame's dissent, Traction argues that  it made no
implied promise to correct grievances because  "Cohen's alleged
statement merely reflects his view of Trac- tion's past practice with
respect to its treatment of employees  and cannot reasonably be
construed as a promise to take any  particular action in the future."
Because Cohen's statements  were framed in the past tense, Member
Brame asserted,  there is no "basis from which it can be inferred
'that the  grievances will be remedied and [no] circumstances giving 
rise to the inference that the remedy will only be provided if  the
union loses the election.' " Traction, 1999 WL 1186753 at  *6.


No doubt Member Brame's interpretation--that Cohen's  statements
referred only to Traction's past practice--is plau- sible. But the
opposite interpretation, the one drawn by the  ALJ and the Board, is
equally plausible, and it is to the  Board, not the dissenter, that we
owe deference. According  to both the Board and the ALJ, Cohen was
"plainly sending  the message that ... [Traction] was now (and would
continue  to be) willing to 'lend a hand or help' with any problems 
employees might have." Id. at *2. Moreover, because it is  not at all
clear whether Tryon was quoting Cohen or para- phrasing what Cohen had
said--"He just stated that if there  was ever a problem, ... Traction
was always there to help"-- we defer to the interpretation of the ALJ
who heard the  testimony and found that "at the April 23 meeting Cohen
...  assured [employees] that if they had any personal or job- related
problem, [Traction's] management team was there to  help them."
Traction, 1999 WL 1186753 at *24. We there- fore think the Board had
sufficient basis for inferring that  Cohen's statements represented an
implicit promise to cor- rect grievances and, by extension, coercion
in violation of  section 8(a)(1). See Avecor, 931 F.2d at 931 ("We
recognize  the Board's competence in the first instance to judge the 
impact of utterances made in the context of the employer- employee
relationship.") (internal quotation marks omitted).


III


This brings us to the heart of this case--Traction's chal- lenge to the
bargaining order. Our starting point is the  Supreme Court's decision
in NLRB v. Gissel Packing Co.,  Inc., 395 U.S. 575 (1969). "[W]here an
employer has commit- ted ... unfair labor practices [in addition to
its refusal to  bargain] which have made the holding of a fair
election  unlikely or which have in fact undermined a union's majority
 and caused an election to be set aside.... [the Board] has the 
authority to issue a bargaining order.... [T]he Board has  the same
authority even where it is clear that the union,  which once had
possession of [authorization] cards from a  majority of the employees,
represents only a minority when  the bargaining order is entered." Id.
at 610. Bargaining 


orders are sometimes necessary, the Court explained, because  "[i]f an
employer has succeeded in undermining a union's  strength and
destroying the laboratory conditions necessary  for a fair election,
he may see no need to violate a cease-and- desist order by further
unlawful activity. The damage will  have been done...." Id. at 612.


Because bargaining orders can deprive employees of their  section 7
right to choose their representative, this court has  carefully
delineated the circumstances under which the Board  may issue such
orders. Absent "outrageous and pervasive  ULP's," the Board may issue
a bargaining order only if it has  substantial evidence that (1) "the
Union, at some time, ...  had majority support within the bargaining
unit"; (2) "the  employer's unfair practices ... had the tendency to
under- mine majority strength and impede the election process";  and
(3) "the Board [has] determine[d] that the possibility of  erasing the
effects of past practices and of ensuring a fair  rerun election by
the use of traditional remedies is slight and  that employee sentiment
once expressed in favor of the Union  would be better protected by a
bargaining order." Avecor,  931 F.2d at 934. We also require the Board
"to explicitly  balance" several factors to determine whether the need
for a  bargaining order outweighs employees' section 7 rights to a 
representation election. Vincent Plastics, 209 F.3d at 734.


One additional principle guides our review of the Board's  bargaining
order. "In fashioning its remedies ... the Board  draws on a fund of
knowledge and expertise all its own, and  its choice of remedy must
therefore be given special respect  by reviewing courts." Gissel
Packing, 395 U.S. at 612 n.32.  "Our essential task as a reviewing
court is to assure ourselves  that the Board 'has considered the
factors which are relevant  to its choice of remedy, selected a course
that is remedial  rather than punitive, and chosen a remedy which can
fairly be  said to effectuate the purposes of the Act.' " Caterair
Int'l v.  NLRB, 22 F.3d 1114, 1120 (D.C. Cir. 1994) (quoting Peoples 
Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C. Cir. 1980)).


Traction argues that the bargaining order was not justified  because
(1) the union never had majority support, (2) there is 


not substantial evidence to support a bargaining order, (3) the  Board
failed adequately to explain the need for the bargain- ing order, and
(4) the Board failed to consider the effect of  employee turnover. We
consider each argument in turn.


Majority Support


The Board found that a majority of the bargaining unit  supported the
union prior to the election because eleven of  the twenty employees in
the unit had signed cards designat- ing the union as their "chosen
representative in all matters  pertaining to wages, hours and working
conditions." Claim- ing that the Board should not have counted two of
the eleven  authorization cards, Traction argues that the union never 
enjoyed majority support.


One of the disputed cards was Anthony Hess's. In support  of its claim
that this card should not have been counted,  Traction points to
Hess's testimony that he had not read the  card before signing it,
that he had not understood that by  signing he was authorizing the
union, and that he had been  told that the only effect of signing
would be that the union  could hold an election. The ALJ, however,
discredited this  testimony, relying instead on Hess's earlier
affidavit in which  he said that he had in fact read the card before
signing.  Traction, 1999 WL 1186753 at *33. Finding that Hess had 
both read and understood the card, the ALJ counted it.  Because
Traction has offered nothing to suggest that the  ALJ's credibility
determination is "patently insupportable,"  we have no basis for
questioning his conclusion. See  Exxel/Atmos, Inc. v. NLRB, 28 F.3d at


The other disputed card was James Michener's. Michener  never
testified, nor did any witness testify to having seen him  sign the
card. The ALJ authenticated the card by comparing  the signature on it
with Michener's signatures on two forms  in Traction's personnel
files: his employment application and  a signed copy of the company's
work rules. Traction, 1999  WL 1186753 at *33-34. Agreeing with the
ALJ that the card  was authentic, the Board not only examined the two
docu- ments itself, but also compared the signature on the card to 


Michener's W-4 federal income tax withholding form. Id. at  *2-3.


Not contesting the authenticity of the three documents on  which the
ALJ and the Board relied, Traction argues that the  signatures on
those documents have never been properly  authenticated. It relies on
Federal Rule of Evidence  901(b)(3), which it says requires the Board
to compare the  signature on a card to an authenticated signature, not
just to  a signature on an authentic document. Rule 901 provides:


(a) General provision. The requirement of authentica- tion or
identification as a condition precedent to admissi- bility is
satisfied by evidence sufficient to support a  finding that the matter
in question is what its proponent  claims;


(b) Illustrations. By way of illustration only, and not by  way of
limitation, the following are examples of authenti- cation or
identification conforming with the requirements  of this rule:


* * *


(3) ... Comparison by the trier of fact or by expert  witness with
specimens which have been authenticated.


We do not share Traction's interpretation of Rule 901. Not  only is
subparagraph (3) "by way of illustration only," but  Rule 901 "is
satisfied by evidence sufficient to support a  finding that the matter
in question is what its proponent  claims." Rule 901(a). Surely
evidence that the signed docu- ments came from Traction's business
files and that the com- pany relied on one of them to hire Michener
and another to  withhold federal income taxes is "sufficient to
support a  finding" that the signature appearing on them--James P. 
Michener--is in fact Michener's. See Weinstein's Federal  Evidence s
901.05[2][b] at 901-26 (listing business records as  an illustration
of a method for authenticating handwriting  specimens). For decades,
moreover, the Board has treated  employee documents from an employer's
personnel files as  genuine specimens for purposes of authenticating


on authorization cards. See, e.g., Aero Corp., 149 NLRB  1283, 1287
(1964), enf'd 363 F.2d 702 (D.C. Cir. 1966); Heck's,  Inc., 166 NLRB
186 n.1 (1967).


Nothing in Be-Lo Stores v. NLRB, 126 F.3d 268 (4th Cir.  1997), on
which Traction relies, persuades us otherwise. In  that case, the
Fourth Circuit took the Board to task for  counting "highly
questionable Union authorization cards,"  including thirteen cards
"based upon [the ALJ's] comparison  of the signatures on the cards
with the signatures on the  respective employees' W-4 forms." Id. at
279. But because  the court made this statement only after it had
concluded that  a bargaining order was not warranted and because it
indicat- ed that the authorization card issue "only contribute[s] to
our  concern that the Union's majority status was one of agency 
construct, rather than grassroots support," id. at 280, we view  the
statement as dictum. In any event, to the extent that Be- Lo suggests
that Rule 901 precludes authenticating signa- tures by comparing them
to signatures on authentic business  records including W-4 forms, we
disagree and find that the  Board, consistent with long-standing
policy, satisfied Rule 901  by comparing the signature on the
challenged authorization  card with Michener's signature on the three


Substantial Evidence


Traction's second challenge to the bargaining order--that it  is not
supported by substantial evidence in the record-- requires little
discussion, for the Board's order easily satisfies  the standards we
set forth in Skyline Distributors, Inc. v.  NLRB, 99 F.3d 403, 410-11
(D.C. Cir. 1996). There, we  summarized the factors justifying a
bargaining order as fol- lows:


"First, an unfair labor practice that is viewed as 'deliber- ate' or
'calculated' is more likely to lead to a bargaining  order than one
that is not. Second, much turns on the  significance of the interest
being endangered. If the  employer's statements or acts can be
characterized as  threatening either a significant economic interest,


as retention of jobs, or a fundamental legal right, it is  more likely
to lead to a bargaining order. Third, acts of  reprisal, particularly
discharges, are considered to be  extremely effective in swaying votes
and very difficult to  remedy. Not only is there a great deal of
language to  this effect in Board opinions, but also the coincidence
of  section 8(a)(3) violations and bargaining orders is nota- ble.
Fourth, promises to correct the grievance that led  to union
organization are also considered particularly  effective. Finally, and
most significantly, the vast major- ity of bargaining order cases
involve a series of unfair  labor practices rather than a single act


Skyline, 99 F.3d at 411 (quoting Julius G. Getman & Bret- rand B.
Pogrebin, Labor Relations: The Basic Processes, Law  And Practice 76
(1988) (footnotes omitted)).


Beginning with the first factor, we have no doubt that  Traction's
unfair labor practices were " 'deliberate' or 'calcu- lated.' " The
ALJ found that Traction's response to the union  organizing drive,
particularly Adams' interrogation of Tryon  and Schiavone and Adams'
threat that Traction would "close  down, if that's what it takes,"
were "clearly designed to nip  the Union's organizational drive in the
bud." Traction, 1999  WL 1186753 at *21, 35. Adams' comments,
moreover, threat- ened "a significant economic interest," indeed
perhaps the  employees' most significant economic interest--"retention
of  jobs." (Factor 2). Not only did Traction threaten to close  down
or hire others, but by firing Schiavone, the person most  identified
with the union, the company made clear that by  voting for the union,
employees risked their jobs. (Again,  Factor 2). Traction's "acts of
reprisal, particularly [Schia- vone's] discharge[ ]" in violation of
section 8(a)(3) "are consid- ered to be extremely effective in swaying
votes and very  difficult to remedy." (Factor 3). Repeatedly
interrogating  employees, Adams sought to learn what grievances led to
the  union campaign, and both Adams and Cohen suggested that  they
would correct those grievances and that employees  would get "bigger
and better things" by rejecting the union.  Put another way, they
"promise[d] to correct the grievance  that led to union organization."


Finally, this case involved "a series of unfair labor practices  rather
than a single act of illegality." (Factor 5). For  starters,
Traction's response to the union organizing drive  was "immediate,
swift, and retributive." Traction, 1999 WL  1186753 at *35. Summoning
Schiavone to his office, Adams  interrogated him about his union
activity, then fired him.  The company "did not stop there." Id. Adams
twice interro- gated Tryon, denied Tryon's raise, threatened to close
the  Philadelphia warehouse, and imposed new and retributive  policies
on Philadelphia employees. At two employee meet- ings, Cohen committed
additional unfair labor practices.  Taken together, the evidence
reveals a company engaged in a  course of retribution designed not
only to punish employees  who gave the union its strongest support,
but also to intimi- date other employees into voting against the
union. And  contrary to Traction's argument, the effects of its
actions  extended well beyond the Philadelphia warehouse. Id. at *36. 
Such evidence more than sufficiently supports the bargaining  order.
See Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162,  1176 (D.C. Cir.
1993) (affirming bargaining order where com- pany's "large number of
unfair labor practices, ... committed  by some of the top officials in
the company, and ... directed  at numerous employees ... instilled a
strong fear of union  representation in the employees.") (internal


Balancing


Before enforcing a bargaining order, "we require the Board  to
explicitly balance three considerations: (1) the employees'  Section 7
rights; (2) whether other purposes of the Act  override the rights of
employees to choose their bargaining  representatives; and (3) whether
alternative remedies are  adequate to remedy the violations of the
Act." Vincent  Plastics, 209 F.3d at 738. Because of the Board's
failure to  balance these factors, we have repeatedly refused to
enforce  bargaining orders that have come before us in recent years. 
In Avecor, for instance, we declined to enforce a bargaining  order
because although "the ALJ briefly discussed the first  two factors,"
he never considered the third, i.e., why tradi-


tional remedies, including a re-run election, would have been 
inadequate. 931 F.2d at 938. "The ALJ never explained,"  we said, "why
the cloud created by these violations was likely  to linger." Id.
Rejecting another bargaining order in Char- lotte Amphitheater Corp.
v. NLRB, 82 F.3d 1074, 1078-1080  (D.C. Cir. 1996), we "searched the
ALJ's decision but ...  found no explanation of why a fair election
would not be  possible once the Company has been required to post
notices  and reinstate the improperly discharged employees with back 


In our most recent rejection of a bargaining order, Vincent  Plastics,
neither the ALJ nor the Board had provided any  explanation for the
order. Remanding the case with instruc- tions to either provide an
adequate justification or vacate the  bargaining order, we expressed
our frustration with the  Board's continued recalcitrance: "What is
ultimately dissatis- fying about this familiar dance is not a sense
that this court's  institutional integrity is undermined by the
Board's refusal to  modify its behavior in response to operant
conditioning, but  that those left in the lurch are precisely those
who, in this  case, sought protection from the Board." Vincent


In this case, the ALJ explored in depth the need for the  bargaining
order. After summarizing Traction's "immediate,  swift, and
retributive" response to the union's organizing  effort, including its
threats to close or hire other workers, as  well as the retaliatory
section 8(a)(3) violations, the ALJ  discussed the effect of those
actions on Traction's employees.  Traction, 1999 WL 1186753 at *35.
The nature of Traction's  unfair labor practices, he concluded,
combined with the unit's  size and the involvement of the two owners
in the unfair labor  practices, had created fear so pervasive that a
re-run election  would not fairly reflect the views of the majority of
the unit.  Id. at 35-36. Adopting the ALJ's recommendation and im-
posing a bargaining order, the Board rejected Traction's  argument
that "an effective alternative to a bargaining order"  would be for a
Traction representative to "read the notice to  affected employees
prior to the running of a second election."  Id. at 1 n.2. "[S]uch a
remedy," the Board explained, would 


be "insufficient to cure the gross interference with free choice  in
the election in this case." Id.


The Board's explanation suffers from none of the deficien- cies that
led to our rejection of bargaining orders in earlier  cases. For
instance, in Avecor the Board never explained  "why the cloud created
by [the employer's] violations was  likely to linger." 931 F.2d at
938. Here, the ALJ carefully  explained that the section 8(a)(3)
violations, particularly Trac- tion's threats to close the warehouse
and its discriminatory  discharge of Schiavone, were not only "
'hallmark violations'  of the most pernicious type," but given the
small size of the  unit, likely not to have been forgotten. Traction,
1999 WL  1186753 at *35. Moreover, as the ALJ explained, the fact 
that the union, having once enjoyed majority support, gar- nered only
two votes in the election provided additional  evidence that
Traction's unfair labor practices were both  particularly effective
and "likely to linger." Avecor, 931 F.2d  at 938. In Charlotte
Amphitheater, we "found no explanation  of why a fair election would
not be possible once the Company  has been required to post notices
and reinstate the improper- ly discharged employees with back pay." 82
F.3d at 1079.  But here, the ALJ found that the magnitude of
Traction's  unfair labor practices, the small size of the unit, and
the  involvement of the company's two owners made its "campaign  to
undermine employee support for the Union through fear  and
intimidation" so successful that it was unlikely that  traditional
remedies would "eras[e] the effects" of that cam- paign. Traction,


In view of the Board's thorough discussion, and keeping in  mind our
deferential standard of review, Gissel Packing, 395  U.S. at 612 n.32,
we cannot imagine what more we could  require the Board to say.
Indeed, asked at oral argument  what else the Board should have said,
Traction's counsel had  no response. In the end, we think the words of
Gissel aptly  describe this case: Having "succeeded in undermining
[the]  union's strength and destroying the laboratory conditions 
necessary for a fair election, [Traction would] see no need to 
violate a cease-and-desist order by further unlawful activity.  The
damage [had been] done." Id. at 612.


Employee Turnover


We turn finally to Traction's argument that the Board  failed to
consider the effect of employee turnover between the  time the unfair
labor practices occurred and the issuance of  the bargaining order.
"[W]e have repeatedly instructed the  Board to determine the
appropriateness of a Gissel bargain- ing order in light of the
circumstances existing at the time it  is entered" rather than at the
time of the election. Flamingo  Hilton-Laughlin v. NLRB, 148 F.3d
1166, 1171 (D.C. Cir.  1998).


The Board argues that Traction waived this issue by failing  to raise
it during the administrative proceedings. Claiming  that it had raised
the issue, Traction points out that it  excepted to the ALJ's "failure
to consider the effect of  mitigating circumstances on the need for a
bargaining order."  According to the company, this exception "put the
Board on  notice that Traction was challenging, inter alia, the ALJ's 
failure to consider the effect of employee turnover." We  disagree.
How could the Board have known that by "mitigat- ing circumstances"
Traction meant employee turnover? Not  only did Traction fail to
mention employee turnover in its  brief to the Board, but the brief
contained no citation to the  pages of the record that the company now
contends support  its argument that employee turnover actually


We expect much of the Board, but we have never required  it to sift
through a six-hundred plus page record to find  evidence supporting an
argument that a petitioner never  made. See Charlotte Amphitheaters 82
F.3d at 1080 ("[T]he  Board has no affirmative duty to inquire whether
employee  turnover or the passage of time has attenuated the effects
of  earlier unfair labor practices...."). Because Traction does  not
claim that some "extraordinary circumstance" explains its  failure to
raise employee turnover, we may not consider the  issue. See 29 U.S.C.
s 160(e) ("No objection that has not  been urged before the Board, its
member, agent, or agency,  shall be considered by the court, unless
the failure or neglect  to urge such objection shall be excused
because of extraordi- nary circumstances.").


IV


With the exception of that portion of the order requiring  Traction to
allow personal use of company vans, Traction's  petition for review is
denied and the Board's cross-petition for  enforcement is granted.


So ordered.


Randolph, Circuit Judge, concurring: The Board thinks it  an unfair
labor practice for an employer, during an election  campaign, to ask
employees what they find wrong at the  workplace. The Board's theory
is that in making the solicita- tion, the employer implies that
something will be done to  correct whatever problems are identified,
which in turn im- plies that the employees do not need a union. See
Reliance  Elec. Co., 191 N.L.R.B. 44, 46 (1971), enforced, 457 F.2d
503  (6th Cir. 1972). I have my doubts about this theory, but as  the
court points out, the company did not challenge it in this  case. See
op. at 13. The company's argument was that the  evidence did not make
out a violation, an argument the  court's opinion rightly rejects. See