NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAIDSVILLE COAL COMPANY, INC., Respondent, 693 F.2d 1119

ALBERT V. BRYAN, Senior Circuit Judge: Adjudging respondent employer guilty of abridging the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1976), in multiple respects, the National Labor Relations Board (Board or NLRB) now prays this Court to enforce the Board’s Order of September 1, 1981, requiring, inter alia, Maids-ville Coal Company, the employer, to bargain with the United Mine Workers of America (Mine Workers). For the reasons which follow, we decline enforcement and remand the cause to the Board for further proceedings consistent with this opinion.

I In April 1979, the Miné Workers began an organizing campaign at the employer’s tipple in Maidsville, West Virginia. Representatives of the union circulated authorization cards to production and maintenance employees and, by April 11, the signatures of five employees had been obtained. Af-terwards, this number was found by the Administrative Law Judge, as well as the Board, to constitute a majority. - Formal demand for recognition by the Mine Workers was made April 19.

According to the ALJ’s findings, confirmed by the NLRB, the employer ran afoul of the Act’s strictures on several occasions during the organizational campaign. First, it gave all of its employees salary increases during the campaign, in violation of § 8(a)(1) of the Act. Second, on April 13 it wrongfully terminated four employees upon suspicion that they were active in the union effort. This disregard of § 8(a)(3) was mitigated ten days later by the employer voluntarily rehiring and paying back wages to each of the four workers.

Third, the employer was found to have constructively discharged Richard Heller, the tipple’s weighmaster, nearly a month after-wards, on May 21, 1979. There were sundry other violations of § 8(a)(1) found by the ALJ as well as a violation of § 8(a)(5) on account of the employer’s refusal to bargain with the Mine Workers. Between April 19, when the employer’s president said he first learned he could not fire employees for union activity, and April 23, the employer sought to appease the employees by

a) rehiring with full back pay the fired workers,

b) obtaining from employees a list of grievances, and

c) scheduling a meeting with all employees for April 23. At this meeting, the president stated that he could not discuss bargaining in light of the Mine Workers’ action in demanding recognition and in filing the first of several unfair labor practice charges. Discharged employee, Heller, asked the management representatives to leave the room so the employees could discuss the situation among themselves. At this point, Heller apprised his colleagues of conversations with the president and indicated that the latter had offered to rectify all their complaints if the union was rejected.

Five employees, including one — Kenneth Roberson — who had earlier signed a union authorization card, agreed to this resolve and thereupon signed a notarized statement to such effect. The four employees who were dismissed on April 13, however, declined to accede to this agreement. In any event, the employer apparently assented to the conditions and nothing further was done by the employees relating to the union. The union, of course, continued to press its contention that the employer’s conduct throughout the ill-fated organizational campaign contravened the Act.

The ALJ saw the employer as offending § 8(a)(1) by unlawfully interrogating employees and by threats of discharge and reprisals, of § 8(a)(3) by illegally firing the four employees on April 13, and later effectively discharging Heller, and of § 8(a)(5) by refusing to bargain with the union on and after April 19. Besides requiring Maidsville to refrain from violating the Act, rehire the fired workers with back pay and other employment rights, and acknowledge its transgressions through the posting of the usual notice, the ALJ recommended and the Board ordered the employer to bargain with the Mine Workers.

This portion of the decision was grounded on the finding of a card majority prior to the commission of the unfair labor practices and the conclusion that a fair election could not be obtained in the future. Enforcement of this Order is now sought. Employer resists, principally protesting that the union never had a- card majority because

a) Heller was improperly counted as an employee and

b) one Jeffrey Freeman was mistakenly classified as a supervisor. Further, the employer contends that the Board’s decision that unlawful across-the-board wage increases were granted is not substantiated by the evidence and, also, that neither the ALJ nor the Board made sufficiently detailed findings of fact to authorize a bargaining order. II In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Court identified three situations where consideration might be given to the appropriateness of a bargaining order.

First, it may be suitable where the employer is adjudged to have committed “outrageous” or “pervasive” unfair labor practicés, regardless of whether the union ever has garnered majority sentiment. Infractions of this degree are of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies with the result that a fair and reliable election cannot be had.” Id. at 614, 89 S.Ct. at 1940, quoting NLRB v. Logan Packing Co., 386 F.2d 562, 570 (4th Cir.1967).

Second, the Court opined that a bargaining order could be issued by the Board to remedy less outrageous instances of employer misconduct which still tend to subvert the election process. In determining whether, in its discretion, the Board should issue an order in this setting, the Supreme Court instructed the Board to give thought to whether the union once had a card majority which apparently had been dissipated by the unfair labor practices, the extensiveness of past employer misconduct, their effect on election conditions, and the likelihood of their recurrence in the future. 395 U.S. at 614, 89 S.Ct. at 1940.

Finally, the Court remarked that there was yet a third category of incidents marked by minor, relatively insignificant disobedience. Noting that these trifling faults had an insubstantial effect on elections, the primary mechanism for evaluating employee support for a proposed collective bargaining agent, the Court held that orders to bargain in this context would be impermissible. The Board now insists that the bargaining order is justifiable as a remedy imposed, pursuant to the sound exercise of the agency’s discretion, for the second category of unfair labor practices.

Insisting that the record, taken as a whole, supplies substantial evidence for this decision, the NLRB demands enforcement. The employer resists, first by seeking to undercut the essential predicate for a Gissel bargaining order in the so-called category II case. It maintains that the Mine Workers actually never had a card majority because Jeff Freeman was an “employee” and not a “supervisor” and/or because Richard Heller was a “supervisor” and not an “employee.” Nevertheless, we believe the Board’s resolution of these factual matters is underpinned, however, by sufficient evidence.

Thus we decline to disturb them. As another ground for relief, the employer maintains that the Board’s bargaining order is defective because its promulgation does not meet the prerequisites of this Circuit expounded in NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988 (4th Cir.1979). There, we said the Board must advance specific, detailed reasons upholding its conclusions that an election will not adequately reflect employee preferences and that traditional remedies (e.g., cease and desist orders) are unlikely to erase any hint of coercion occasioned by the employer’s unfair labor practices.

We agree with the employer. In Appletree Chevrolet, the Board’s petition for enforcement was not allowed when review of its proceedings made plain that the Board did little more than cite Gissel as the basis for its bargaining order. Writing for this Court, Judge Russell commented that “[b]oth [the ALJ and the Board] seem to have proceeded upon the erroneous assumption that a finding of unfair labor practices automatically engendered a coercive atmosphere that would support a bargaining order.” Id. at 1000.

He observed that in making specific findings, “the Board must ... ‘assess the possibility of holding a fair election in terms of any continuing effect of misconduct, and the potential effectiveness of ordinary remedies,’ [and] should consider whether the respondent’s conduct has dissipated the Union’s majority and whether the employer is likely to ‘ignore the Board’s cease and desist order.’ ” Id. (footnotes omitted) Review of the ALJ’s Findings and Conclusions here, as well as the Board’s Decision, reveals a failure, comparable to that identified in Appletree Chevrolet, to make the specific findings mandated by both Gis-sel and Appletree Chevrolet.

In the ALJ’s 77-page decision, the only “findings” relevant to the issuance of a bargaining order are contained in a conclusory footnote. Such talismanic invocations, of course, are insufficient in this Circuit to sustain a bargaining order. Perhaps mindful of this fact, the Board, in confirming the ALJ’s recommended decision, made a belated attempt to comply with our exactions. Regrettably, its attempt shares all the deficiencies of the ALJ’s decision.

Rather than actually analyzing the facts with a view toward determining whether a fair election could be had, the Board recites, without more, the Court’s explanation of what kind of showing is necessary for the issuance of a bargaining order. This is not enough. With apparently necessary repetition, we reiterate that elections are the preferred measure of employee sentiment under the Act. Still, there are cases where it is not possible to hold a fair election.

But before a bargaining order may issue, the Board must demonstrate, with particularity, why traditional remedies probably will not protect employees’ rights under § 7 of the Act. Since it has not here done so, enforcement is disallowed and remand is ordered for reconsideration in light of Appletree Chevrolet. Ill Prior to the argument of this appeal, the employer moved to supplement the record on appeal with its president’s affidavit. The affiant made known that the composition of the employer’s workforce has changed dramatically since the alleged infractions in 1979.

The point of this submission is to persuade us that whatever the merits of a bargaining order in 1979, circumstances have changed so radically and undeniably that it would be ill-advised to uphold the Board’s decree today. With one Judge dissenting, we tentatively granted the employer’s motion to supplement, but left to the Board the opportunity to challenge this addition at oral argument. The Board instantly opposed such an informative endeavor.

Instead, it mechanically insisted that it had properly considered the relevant evidence and that its decision should be reviewed by this Court only on the basis of the record evidence available to the Board. The Board, of course, is correct in averring that an appellate court, with very rare exceptions, must confine its review to that which comprised the record in the trial court or administrative agency. Therefore, we do not now pass upon the evidence now made known by the employer.

Since a remand is necessary, however, and to save the parties from the probability of a duplication of this litigation, we think that the employer’s affidavit ought to be countenanced by the Board, together with such other evidence as the parties may present concerning the issuance of a bargaining order. See 29 U.S.C. § 160(e) (1976). The petition for enforcement is denied and the cause is remanded to the National Labor Relations Board for further proceedings consistent with this opinion. It Is So Ordered. .

Included among these infractions were unlawful interrogations of employees about their union activities and sympathies, and threats of discharge or reprisal. . The grievances included a demand that James Casino be removed as supervisor, that all fired employees be rehired with back pay, that a retirement plan be devised, and that wages be increased. . Similarly, the employer’s challenge to the NLRB’s finding that across-the-board wage increases were granted, in violation of § 8(a)(1), must fail.

While the employer may be able to point to probative evidence which, if believed, could sustain its position, the Board is equally capable of defending its judgment through reference to the record. Under these circumstances, the Act, see 29 U.S.C. § 160(e) (1976), clearly requires this Court to give credence to the Board’s findings. .The ALJ wrote: I specifically conclude and find the unfair labor practices committed by Employer were so pervasive and extensive that the possibility of erasing their effects on the employees and ensuring a fair election by the use of traditional remedies is slight.

With employees being so conditioned, I find that in this case, employee sentiment, as expressed by the authorization cards is best protected by a bargaining order. NLRB v. Gissel Packing Co., Inc., 395 U.S. 575 [89 S.Ct. 1918, 23 L.Ed.2d 547] (1969); Staats and Staats, Inc., 254 NLRB No. 105 (1981). Appendix at 72. . In conducting this inquiry, we further admonish the Board to consider our additional comments. on the necessary analysis in Appletree II. See NLRB v. Appletree Chevrolet, Inc., 671 F.2d 838 (1982). .

In pertinent part, this provision states that upon a proper showing, we “may order ... additional evidence to be taken before the Board, its member, agent, or agency, and to be made a part of the record.”