United States Court of Appeals,

                           Fifth Circuit.

                            No. 96-60561.

           NATIONAL LABOR RELATIONS BOARD, Petitioner,

                                   v.

  HI-TECH CABLE CORPORATION, A Subsidiary of Southwire Company,
Respondent.

                           Nov. 14, 1997.

On Application for Enforcement of an Order of the National Labor
Relations Board.

Before WISDOM, DUHÉ and BARKSDALE, Circuit Judges.

     PER CURIAM:

     The National Labor Relations Board ("Board") seeks enforcement

of an August 1995 Decision and Order ("Order") it issued against

respondent/appellant,    Hi-Tech       Cable   Corporation   ("Hi-Tech";

"Company"), a subsidiary of Southwire Company.          The Board found

that Hi-Tech had committed numerous violations of the National

Labor Relations Act ("NLRA";       "Act").1    We grant enforcement in

part, and deny enforcement in part.

                                   I.

     This case is the most recent of several disputes that arose

between the International Brotherhood of Electrical Workers, Local

Union 1510 ("Union") and respondent, Hi-Tech, at the latter's

Starkville, Mississippi facility.         The Union filed a series of

charges against Hi-Tech between March and September 1993, alleging

several violations of the NLRA.         On August 10, 1995, the Board

     1
      29 U.S.C. § 150 et seq.

                                   1
issued an order finding that Hi-Tech had engaged in several unfair

labor practices in violation of §§ 8(a)(1), (3), and (5) of the

Act.2           The Board predicated its decision on several factual and

legal findings that are set forth below.                       These findings are the

subject of our review.

        In June 1991, the Union filed an unfair labor practice charge

against          Hi-Tech,    alleging     that       the   Company   violated    several

provisions of the NLRA by unilaterally adopting and reinforcing a

rule that prohibited the use of tobacco products at its Starkville

facility.3          In September 1992, the Board issued an order in favor

of the Union, finding that the Company had violated the Act as

charged.4          On January 7, 1993, Hi-Tech began to comply with the

order by posting a Board-mandated notice pledging to rescind the

no-tobacco usage rule.              In addition, Hi-Tech elected to post its

own     notice,       in    which   it   both       informed   its   employees   of   the

rescission and expressed a willingness to bargain collectively with



        2
     The Administrative Law Judge rendered a preliminary decision
on June 27, 1994. In all meaningful respects, the Board affirmed
the ALJ's findings.
            3
      In July 1992, the Union filed separate charges against the
Company alleging various violations of §§ 8(a)(1), (3) and (5) of
the Act.    On September 10, 1992, the parties entered into a
settlement agreement that required the Company to post a remedial
notice stating that it would not (1) discriminatorily enforce its
no solicitation rule by prohibiting Union solicitations and
permitting non-Union solicitation; (2) promise to improve benefits
if the employees rejected the Union; (3) inform employees that
retaining the Union was futile;      (4) solicit support for a
decertification effort; or (5) violate the employees' § 7 rights
in any other respect.
        4
            The 1992 order is not subject to review by this Court.

                                                2
respect to tobacco usage.5             These notices remained posted for the

60-day remedial period mandated by the Board.                  During this time,

however, other signs that declared the Starkville plant to be a

non-smoking facility remained posted at separate entrances to

employee and visitor parking lots.6

       On January 10, 1993, three days after Hi-Tech began to comply

with the Board's 1992 order, Jimmy Jones applied for a job with the

Company. The Board found that Hi-Tech declined to offer employment

to Jones because he expressed pro-Union sentiments in response to

questioning from Jim French, the Company manager who interviewed

him.       The Board also found that during the interview, French

violated § 8(a)(1) by stating that the Union was ineffective in

securing benefits for affiliated employees.7

       Also        in   January    1993,   Hi-Tech   hired   William   Scott   as a

temporary employee.               Hi-Tech laid him off in March 1993, citing

lack of work as its justification.               The Board, however, found that

Hi-Tech, in violation of §§ 8(a)(3) and (1), dismissed Scott

because of his pro-union sympathies.                   Specifically, the Board

concluded that the company informed Scott of his termination on

March 29 because he wore a pro-union t-shirt to work that same day.

       5
      Three bargaining sessions over the no-tobacco rule ensued.
The substance of those sessions is discussed below.
               6
        Throughout this dispute, Hi-Tech continued lawfully to
maintain a no-tobacco usage policy as applied to visitors and
unrepresented employees at its Starkville plant and 17 other
non-union facilities. The Company had posted the signs in 1991.
           7
       The Board also found that Hi-Tech managers made similar
unlawful statements to other applicants and employees during the
five-month period of January to May, 1993.

                                             3
     In April 1993, Vernita Robinson received the employee of the

month award.    Both the ALJ and the Board found that manager Gerri

Tate approached Robinson a day or two before she received the award

to discuss a pro-union button she had attached to her clothing.

They further found that Tate unequivocally implied, in violation of

§ 8(a)(1), that some benefit would accrue to Robinson if she

removed the button and supported a pending decertification effort.

Robinson indicated her willingness to cooperate, and received the

award a day or two later.

     In early February 1993, anti-Union employees circulated a

decertification      petition.        Forty-two   employees   signed

decertification cards between February 11 and March 7, the period

during which Hi-Tech was in compliance with the Board's 1992 order.

In May 1993, Hi-Tech received decertification cards signed by 117

of its 203 Union-represented employees.     Based on its belief that

the Union no longer enjoyed majority support, the Company withdrew

recognition from the Union.      Shortly thereafter, Hi-Tech ceased

processing grievances, and on June 3, 1993, announced a wage

increase.8     The Board concluded that Hi-Tech violated §§ 8(a)(5)

and (1) by wrongfully withdrawing recognition from the Union.    In

particular, the Board found that the decertification cards upon

which the Company relied were tainted by the unfair labor practices


    8
     Hi-Tech posted a notice the following day stating that it was
"pleased to announce that effective June 6, 1993, a 60 cents
per-hour wage increase will be implemented for all hourly-paid
production and maintenance employees. We are taking this action
because we feel our plant has fallen somewhat behind in wages over
the last year or so."

                                  4
it had identified.

                                       II.

                  A. Bargaining Over No-Tobacco Rule

      Company and Union negotiators met on three separate occasions

to   bargain   over    the    no-tobacco      rule   the    Company    sought    to

implement.     The first of these sessions was held on February 16,

1993.    During the course of this meeting, Hi-Tech cited several

justifications for a plant-wide prohibition of tobacco use.                   In an

effort to communicate Hi-Tech's health-related concerns, Company

negotiators presented Union negotiators with numerous articles and

graphs   concerning     the    deleterious     health      effects    of   smoking.

Company representatives plainly stated that "the bottom line here

is the company is concerned about the effects of tobacco use on the

health of its employees and the cost impact of these health

problems on the company."          In addition to expressing concerns over

potential employee health problems and accompanying losses in

productivity, Hi-Tech negotiators explained that a company-wide

policy   required     that    it   prohibit    the   use    of   tobacco    at   the

Starkville facility.         For its part, the Union suggested that the

Company designate a limited smoking area for employees who wished

to use tobacco.       In response, the Company reiterated its concerns

and its desire to enact an absolute ban on the use of tobacco

products.      The    Union   also    expressed      its   disapproval      of   the

continued presence of signs posted at the Company's parking lot

entrances declaring that the Starkville facility was smoke-free.

The meeting adjourned without agreement between the parties.


                                        5
      Company and Union negotiators reconvened the following day.

The   Union    submitted   proposals       that   would   allow   smoking   in

designated areas.9     Union representatives also proposed that Hi-

Tech remove the no-tobacco sign at the entrance to the employee

parking lot.     Hi-Tech negotiators rejected the Union's proposals

because none addressed the Company's principal concerns about

employee health, corporate policy, and continuous movement to and

from workstations for smoke breaks.          For the second time in as many

days, the parties failed to reach an agreement.

      The parties met a final time on March 16, 1993.              The Union

proposed that the Company permit tobacco use in the employee

parking lot, designate two indoor areas for tobacco use, and remove

the no-tobacco sign at the entrance to the employee parking lot.

Hi-Tech negotiators rejected the proposals for the same reasons

they rejected previous Union proposals.           As one Company negotiator

stated,

      We reviewed the Union proposal on tobacco use and what we see
      is that this proposal still encourages employees to use
      tobacco products. It has been the Company's position from day
      one that one of our aims is to discourage employee use [rather
      than] encourage it.    You continue to encourage the use of
      tobacco.   The reason we want to discourage it is that it
      causes disease.

Union negotiators, however, explicitly stated that they had no

intention of addressing the adverse health effects associated with

tobacco use.

      9
      Specifically, the Union twice proposed that tobacco use be
permitted at any or all of the following locations:       (1) the
employee parking lot;    (2) a designated area adjacent to each
department restroom; and (3) rooftop. The Union also offered to
furnish ashtrays and signs admonishing smokers not to litter.

                                       6
     Hi-Tech negotiators also repeated their concerns over litter,

employee movement, and the company-wide prohibition of tobacco use.

Union negotiators then stated that no additional proposals were

forthcoming.   Finally, the Company declared an impasse.   On March

29, 1993, it once again implemented the no-tobacco rule.10

     The Board found that Hi-Tech violated §§ 8(a)(1) and (5) of

the Act (29 U.S.C. § 158(a)(1) and (5))11 by failing to bargain with

the Union in good faith about its proposed no-tobacco usage policy.

Accordingly, the Board ordered that Hi-Tech do the following:   (1)

cease and desist from unilaterally implementing a no-tobacco usage

policy;   (2) recognize the Union as the exclusive collective

bargaining representative for all employees in the appropriate

unit, and, on request, bargain in good faith with the Union about

the usage of tobacco;   and (3) rescind, on request by the Union,

the no-tobacco usage policy it implemented on March 29, 1993.


    10
      The Company posted a notice throughout the plant that stated
the following: "Effective Monday, March 29, 1993, the Southwire-
Starkville Plant will become a No-Tobacco Usage Facility.       No
tobacco usage will be permitted within the property lines of
Southwire Company.    The property lines include plant, office,
Company vehicles and all parking lots as well as grounds
surrounding these areas."
     11
      § 158(a)(5): "It shall be an unfair labor practice for an
employer to refuse to bargain collectively with the representatives
of his employees."

          § 158(a)(1): "It shall be an unfair labor practice for
     an employer to interfere with, restrain, or coerce employees
     in the exercise of the rights guaranteed in section 157 of
     this title."

          § 157:    "Employees shall have the right to bargain
     collectively through representatives of their own choosing."


                                 7
          Courts of appeal will not disturb the Board's findings of

fact if they are supported by substantial evidence on the record

considered as a whole.12       We may not displace reasonable inferences

drawn by the Board from its findings of fact, even if we might have

reached different conclusions had the matter been before us de

novo.13      In the instant controversy, our task is to determine

whether substantial evidence supports the Board's conclusion that

Hi-Tech committed unfair labor practices by failing to bargain in

good faith with the Union over tobacco use at the Starkville

facility.     We hold that the Board's conclusion is not supported by

substantial evidence, and thus decline to enforce this aspect of

its order.

          As a preliminary matter, we note that the Act requires that

the employer and the representative of the employees confer in good

faith with respect to wages, hours, and other terms and conditions

of employment.14      It is now well-settled that rules governing

tobacco use constitute terms and conditions of employment for

purposes of the Act.15    As such, they are subject to the good faith

bargaining requirement imposed by § 158(d).        While the good faith

requirement clearly mandates that an employer explain its positions



     12
      29 U.S.C. § 160(f). See Universal Camera Corp. v. NLRB, 

, 

, 

(1951).
      13
       United Supermarkets, Inc. v. NLRB, 

, 551 (5th
Cir.1989)
     14
          29 U.S.C. § 158(d)
     15
          See Allied-Signal, Inc., 

(N.L.R.B.)

                                      8
on various issues and furnish relevant materials,16 it just as

clearly does not compel either party to agree to a proposal or to

make concessions.17        In other words, adamant insistence on a

genuinely     and     sincerely   held       bargaining   position   does   not

constitute bad faith.18       Ultimately, our assignment is to examine

the totality of the employer's conduct, both at and away from the

bargaining table, to determine whether the employer has bargained

in good faith.19       With these principles in mind, we consider the

Board's findings of fact and conclusions of law.

     In rendering its decision, the Board attached particular

significance to the following factors:               (1) Hi-Tech's repeated

references to company-wide policy as a justification for its

bargaining position;       (2) Manager Jim French's unlawful statement

to applicant Jimmy Jones that non-Union employees could secure

better benefits than affiliated employees, as well as similar

unlawful remarks;       and (3) Hi-Tech's refusal to remove one sign at

the entrance to the employee parking lot declaring the prohibition

of tobacco use at the facility.                We discuss these factors in

sequence.

(1) Hi-Tech's references to company-wide policy:

    16
         Stroehmann Bakeries, Inc. v. NLRB, 

(2d Cir.1996).

         17
          White v. NLRB, 

(5th Cir.1958);            29 U.S.C. §
158(d).
    18
      Chevron Oil Co. v. NLRB, 

, 1072 (5th Cir.1971);
Coastal Electric Cooperative, Inc., 

at 10
(N.L.R.B.).
     19
          

                                         9
           The Board found that Hi-Tech's reference to company-wide

policy as a justification for its negotiating position indicated

"the futility of union representation" at the bargaining table.

This finding enjoys no support in the law, and it fails properly to

account for the other concerns expressed by Hi-Tech negotiators

during the bargaining sessions.             The Board does not direct us to a

single      case   that    fairly   stands      for   the   proposition       that   an

employer's reliance on company-wide policy for its bargaining

position evinces bad faith.              Instead, the Board asks us to affirm

its     own     naked     finding   that     Hi-Tech's      desire     to    maintain

company-wide uniformity in its tobacco usage policy is indicative

of bad faith.       We find no basis for such a finding.             We also cannot

overlook the Company negotiators' repeated expressions of concern

over the health-related ramifications of tobacco use.                       Indeed, we

would      be    hard-pressed       to    conceive     of   a   more        compelling

justification for the implementation of a company-wide no-tobacco

use policy.

(2) French's unlawful statement and similar unlawful remarks:

        The Board found that Jim French and other Company officials

violated § 8(a)(1) of the Act by stating to an applicant and an

employee that union representation was an impediment to the receipt

of better benefits.20           In turn, the Board concluded that this

conduct away from the bargaining table reflected the Company's

unwillingness to bargain in good faith over tobacco use.                       We find


      20
      We agree with this finding, and thus enforce this aspect of
the order.

                                           10
no basis for such a conclusion.             Principally, we find no evidence

of a nexus between these unlawful statements and the Company's

conduct at the bargaining table.21               The statements referred neither

to the collective bargaining process nor the specific issue of

tobacco use at the facility.             In Chevron Oil Co. v. NLRB,22 we held

that a company official's unlawful, away-from-the-table statements

that    employees        would   secure     greater        benefits   without   union

representative did not justify an inference that the company

engaged in bad faith bargaining.23               In reaching that conclusion, we

noted that the statements were made in isolation and at a time when

the    company     and     the   union    were    at   a    virtual   standstill   in

negotiations.24      In this respect, Chevron is similar to the case at

bar.    We adopt its reasoning here, and decline to infer bad faith

from the statements identified by the Board.

(3) Hi-Tech's failure to remove the sign in the parking lot:

            The Board concluded that Hi-Tech's refusal to remove one

no-smoking sign at the entrance to the employee parking lot could

not be reconciled with the Company's assertion that it intended to

bargain in good faith over tobacco use.                    Hi-Tech does not dispute

that the sign expressly contradicted the remedial notices posted


       21
       See River City Mechanical, 

, 1505 (1988) (no
evidence that unlawful, away-from-the-table statements made during
negotiations influenced the aims or attitudes of employer's
negotiations).
       22
            

.
       23
            

       24
            

the plant.           These stated that Hi-Tech had rescinded the

no-tobacco use rule.            Hi-Tech argues, however, that the Board's

finding that "unit employees would reasonably regard the sign as a

threat that the ban could still be invoked against them" is purely

speculative.        Hi-Tech notes, in fact, that at no point during the

negotiation process did Union representatives suggest that the

presence   of        the   sign   created     confusion    as    to    the   ongoing

applicability of the Company's rescission of the no-tobacco rule it

had previously sought to implement.                Hi-Tech also defends the

presence of the sign on the ground that the seminal no-tobacco rule

remained       in      effect     for    non-bargaining         unit     employees.

Nevertheless, it was not unreasonable for the Board to conclude

that the Company's refusal to remove the sign militated against a

finding of good faith.            Indeed, the Company could have readily

allayed the Union's concerns by modifying the sign to reflect the

bargaining unit employees' exemption from the no-tobacco rule.

       Viewed as part of the overall climate of the bargaining

process, however, the effect of this single sign does not rise to

a level of seriousness that would allow the Board properly to

conclude that Hi-Tech failed to bargain in good faith over the

tobacco issue. As we stated above, the good faith inquiry requires

us to examine the totality of the employer's conduct both at and

away from the bargaining table. It necessarily follows, then, that

no single factor is likely to be dispositive of our analysis.                     Hi-

Tech's overall conduct reveals its good faith intention to meet

with   Union        representatives     and    discuss    tobacco      use   at   the


                                         12
Starkville facility.         Hi-Tech negotiators repeatedly expressed

valid concerns over the detrimental effects of tobacco use on both

the employees and the company.            Union negotiators, on the other

hand, steadfastly refused to discuss these concerns, all the while

insisting that the Company accommodate employees who wished to use

tobacco.     In its own brief, in fact, the Board concedes that "the

Union did not address the company's concerns about the effect of

tobacco on the health of its employees."

          We are not persuaded by the Board's last-minute contention

that Company negotiators acted in bad faith by failing to offer

certain counterproposals that might have been acceptable to the

Union.25      Hi-Tech   representatives      endeavored    to   engage   Union

negotiators in a dialogue that addressed matters of employee health

and potential losses in productivity. Union negotiators explicitly

declined to participate in such a dialogue.            The Board now asks us

to   infer     bad   faith   from   the    Company's     failure   to    offer

counterproposals that addressed matters the Union affirmatively

refused to consider at the outset of bargaining.           We decline to do

so. It is unreasonable and illogical to punish the Company for its

negotiators' failure to engage in a discussion in which the Union

negotiators obdurately refused to participate.


     25
     In its brief, Hi-Tech states that "the Union never raised the
possibility of allowing tobacco use in exchange for employee
contributions toward health insurance, no suggested elimination of
a vacation day or holiday to make up for lost productivity." Hi-
Tech did not, however, suggest that it would have agreed to such
proposals. It raised this point merely to illustrate that Union
negotiators altogether refused to address Company concerns over
adverse health effects and lost productivity.

                                     13
     Both parties were entitled to remain entrenched in their

respective positions;      neither was forced to capitulate to the

other.26   We hold that there is not substantial evidence to support

the Board's finding that Hi-Tech violated § 8(a)(1) and (5) of the

Act by refusing to bargain in good faith over the no-tobacco rule.

      Finally, Hi-Tech did not act improperly by reimplementing the

no-tobacco rule after the parties had reached an impasse.               An

employer generally may not make unilateral changes in the terms and

conditions of employment without union consent.27           When a legally

cognizable impasse occurs, however, "the employer is free to

implement changes in employment terms unilaterally so long as the

changes    have   been   previously    offered   to   the   union   during

bargaining."28    Since Hi-Tech proposed the implementation of a

no-tobacco rule during bargaining, it was not foreclosed from

unilaterally implementing it after the parties had reached an

impasse.29   Accordingly, we overturn that aspect of the Board's

order requiring the Company to rescind the no-tobacco rule on

request by the Union.


     26
       See NLRB v. American Insurance Co., 

, 401-404,

, 828-829, 

(1952).
     27
       Huck Mfg. Co. v. NLRB, 

, 1186 (5th Cir.1982).

     28
      Id.; See also P.R.C. Recording Co. v. NLRB, 

,
292-93 (7th Cir.1987).
      29
       The Board argues that the Company could not rely upon the
impasse as a defense to unilateral reimplementation of the rule
because arrival at a bona fide impasse presupposes that the
employer bargained in good faith. Since we hold that the Company
bargained in good faith, the Board's argument must fail.

                                      14
                                B. The Remaining Issues

        We have thoroughly reviewed the record and the parties'

respective briefs, and conclude that substantial evidence supports

the remainder of the Board's findings.                     We take a moment, however,

to address the Company's contention that it properly withdrew

recognition from the Union.

             A     union's   majority     status    is     irrebuttably    presumed   to

continue for a reasonable period—typically one year from the date

of its certification.30               Thereafter, the employer may rebut the

presumption that the union enjoys majority support by affirmatively

showing (1) that it had a reasonable, objectively-based good faith

belief that the union no longer represented a majority of the

bargaining unit employees, or (2) that the union in fact no longer

represented the majority of the employees.31                       Our cases make it

clear,           however,    that   "an    employer       cannot   lawfully     withdraw

recognition from a union if it has committed yet unremedied unfair

labor practices that could have reasonably tended to contribute to

employee disaffection from the union."32                    Regarding the nexus that

must        exist     between   the     unfair     labor    practices     and   employee

disaffection, we have stated that "the question is simply whether

[the        employer's]      actions      could    have    contributed     to   employee



        30
             United 

.
        31
             

at 554. See also NLRB v. Powell Electrical Mfg. Co., 

, 1014-15 (5th Cir.1990);      Pittsburgh & New England
Trucking, 

, 836 (1980).

                                              15
disaffection."33        Direct evidence of causation is not required.34

         Hi-Tech based its belief that the Union no longer represented

a majority of the bargaining unit employees on its receipt of

decertification cards signed by 117 of the 203 unit employees. The

Board, however, found that the cards did not form a reasonable

basis to doubt the Union's majority status because they were

solicited     in    a   climate   of    various     unremedied       unfair   labor

practices.35       We believe that substantial evidence supports this

conclusion.       First, we agree with the Board that Hi-Tech committed

numerous unfair labor practices in the months immediately preceding

its receipt of the decertification cards.                 Second, it was quite

reasonable for the Board to conclude that these practices tainted

the decertification process, particularly since several violations

consisted     of    Company   managers        promising    greater     rewards   to

employees if they broke ranks with the Union or otherwise ceased

demonstrating pro-Union sentiments.              The Company's argument that

the isolated nature of the unfair labor practices in question

precluded     a    finding    that     they    caused     significant    employee


     

. Powell Electrical Mfg. 

.
     34
      Columbia Portland Cement Co. v. NLRB, 

, 465 (6th
Cir.1992).
    35
      The Board also found that 42 of the 117 decertification cards
could not be credited because they were signed between February 11
and March 7, 1993, the period during which Hi-Tech was complying
with the Board's 1992 order by posting notices announcing the
rescission of the no-tobacco rule. The Board explained that cards
solicited during a remedial notice posting period are not reliable
indicators of employee sentiment. Robertshaw Controls Co., 

, 959-60 (1982).    On this basis alone, the Company was
unjustified in withdrawing recognition from the Union.

                                        16
disaffection is without merit.              Given the temporal proximity

between     the   unfair    labor   practices    and   the   withdrawal   of

recognition, it was not unreasonable for the Board to conclude that

many of the employees who signed the cards might have been induced

to do so by the Company's unlawful actions.36          Substantial evidence

supports the Board's finding.

                                     III.

      The Board's petition for enforcement of its order regarding

the   bargaining    over,    and    subsequent   implementation    of,    the

no-tobacco usage policy is DENIED.          The remainder of the petition

is GRANTED.

      JOHN MINOR WISDOM, Circuit Judge, specially concurring.

      I am satisfied that Hi-Tech approached the bargaining process

in good faith.

      While I applaud the Company's insistence on taking steps to

preserve the health of its work force, I believe that the Company

might have given some consideration to the fact that many of its

current, tobacco-addicted employees were hired at a time when

smoking was permitted.




       36
        See Powell Electrical Mfg. 

n. 6;
Columbia Portland Cement 

(unfair labor
practices that occurred within one year of the decertification
petition precluded a finding that the employer entertained good
faith doubts as to the union's continuing majority status).

                                      17