## Facts

- Vincent Industrial Plastics, Inc. operated a plastics manufacturing plant in Henderson, Kentucky, employing production and maintenance workers.
- On February 19, 1993, a majority of unit employees selected the International Chemical Workers Union, AFL–CIO, Local 1032 as their bargaining representative; the NLRB certified the union on September 29, 1993.
- The company and union began bargaining in January 1994 and continued for more than a year without reaching a final agreement.
- Between July 5, 1994 and April 20, 1995, the union filed unfair labor practice charges alleging that Vincent:
  - unilaterally changed terms and conditions of employment during bargaining (including changes to attendance tracking and other workplace practices),
  - coercively interrogated an employee about union matters,
  - disciplined and discharged employees because of union support, and
  - withdrew recognition from the union based on employee disaffection allegedly caused by Vincent’s unlawful conduct.
- An Administrative Law Judge found Vincent committed unfair labor practices on all but one charge and recommended cease-and-desist relief, reinstatement and backpay for unlawfully discharged employees, and an affirmative order requiring Vincent to recognize the union and resume bargaining.
- The NLRB found Vincent committed all charged violations (including the allegation the ALJ had rejected), concluded that the employer’s misconduct tainted the employees’ decertification effort, and issued an order that included traditional remedies plus a bargaining order requiring Vincent to recognize and bargain with the union.
- Vincent withdrew recognition on February 16, 1995 after receiving a decertification petition signed by unit employees and refused to bargain further.
- Vincent petitioned for review; the NLRB cross-applied for enforcement.

## Issues

1. Whether substantial evidence supported the NLRB’s findings that Vincent violated NLRA § 8(a)(1), (3), and (5) through unilateral changes, coercive interrogation, and discriminatory discipline/discharges during bargaining.
2. Whether the NLRB properly concluded that the decertification petition (and resulting withdrawal of recognition) was tainted by Vincent’s unfair labor practices, making the withdrawal unlawful.
3. Whether the NLRB adequately justified imposing a Gissel bargaining order requiring Vincent to recognize and bargain with the union.

## Decision

- The court upheld the Board’s unfair labor practice findings to the extent supported by substantial evidence, including findings involving unilateral changes, coercive interrogation, and discriminatory discipline/discharges.
- The court enforced the Board’s determination that Vincent unlawfully withdrew recognition and refused to bargain because employee disaffection reflected in the decertification petition was tainted by the employer’s unfair labor practices.
- The court vacated the portion of the Board’s order imposing a Gissel bargaining order and remanded because the Board did not supply a sufficient, case-specific explanation for that extraordinary remedy.

## Legal Principles

- A court reviews NLRB factfinding under the substantial-evidence standard and generally leaves credibility determinations to the agency.
- Under Wright Line, once protected activity is shown to be a motivating factor in discipline or discharge, the employer avoids liability only by showing it would have taken the same action absent the protected activity.
- An employer violates § 8(a)(5) by making unilateral, material changes to mandatory subjects of bargaining while negotiations are ongoing, absent impasse or union waiver.
- An employer may not withdraw recognition based on apparent loss of majority support where the loss of support is caused or meaningfully contributed to by the employer’s unfair labor practices; the Board may assess taint using its traditional multi-factor test linking misconduct to the decertification effort.
- A Gissel bargaining order is an exceptional remedy; the Board must give a reasoned, record-based explanation showing why traditional remedies and a rerun election would not adequately cure the effects of the employer’s misconduct.

## Conclusion

The D.C. Circuit largely enforced the NLRB’s unfair labor practice findings and agreed that Vincent’s withdrawal of union recognition was unlawful because the decertification petition was tainted by Vincent’s conduct, but it vacated and remanded the Gissel bargaining order because the Board failed to provide an adequate, fact-specific justification for imposing that remedy.


Vincent Industrial Plastics, Inc. v. National Labor Relations Board, 209 F.3d 727 (2000)