Brown Specialty Co.

National Labor Relations Board - Board Decisions

Jan 27, 1970

180 N.L.R.B. 969 (N.L.R.B. 1970)

BROWN SPECIALTY CO. 969
Brown Specialty Company and Local 221 of the
Office and Professional Employees International
Union, AFL-CIO. Case 38-CA-449
January 27, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 30, 1968, Trial Examiner James V.
Constantine issued his Decision in the above-entitled
proceeding, finding that the Respondent had
violated Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, and
recommended that the Respondent be ordered to
cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act, including an order directing the
Respondent to bargain with the Union. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
General Counsel filed limited exceptions to the Trial
Examiner's Decision.
On February 14, 1969, pursuant to the provisions
of Section 3(b) of the National Labor Relations
Act, as amended, the National Labor Relations
Board issued its Decision and Order,' in which it
adopted the findings, conclusions, and
recommendations of the Trial Examiner, with
certain additions and modifications.
Thereafter, on June 16, 1969, the Supreme Court
of the United States issued its opinion in N.L.R.B.
v. Gissel Packing Company, 395 U.S. 575, in which
it laid down certain guidelines relative to the
propriety of finding violations of Section 8(a)(5) and
issuing orders to bargain based upon such violations
or violations of other sections of the Act.
By notice dated August 5, 1969, the Board
notified the parties that it had decided to reconsider,
in light of Gissel, the finding of a violation of
Section 8(a)(5) and the composition of a bargaining
order as part of its remedy.2
Thereafter, on August 18, 1969, Respondent filed
with the Board a statement of position and on
August 19, 1969, General Counsel filed a statement
of position.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
In the light of the entire record in this case, the
impact of the Supreme Court's Gissel Packing
Company' decision and the parties' statements of
positions concerning such impact, the Board hereby
reaffirms its Decision and Order for the reasons
1174 NLRB No. 77.
'All parties , including the General Counsel, were informed that they may
file with the Board in Washington , D. C., on or before August 19, 1969.
indicated below.
The record shows that Respondent first became
aware of the Union's campaign on February 13,
1968, when it received a letter from the Union
which asserted that it had signed up more than a
majority of the office clerical employees, requested
recognition as the exclusive bargaining agent for a
unit composed of the above employees, and
requested a date for a meeting to negotiate a
contract. The Respondent did not respond to the
Union's requests. On February 19 an RC petition
for an election accompanied by 10 union cards was
filed by the Union with the National Labor
Relations Board Subregional office in Peoria,
Illinois . Official NLRB notices of an impending
election were then posted by Respondent on its
bulletin boards. On February 22 Respondent mailed
a withdrawal petition signed by the 10 union card
signers to the Board's Peoria office.4 Subsequently,
on March 22 the RC petition was withdrawn so that
no election was ever conducted. The record shows
that from the time of its awareness of the union
campaign up until and through the February 22
mailing of the withdrawal petition the Respondent,
through action of its President Golofsky and other
supervisors, engaged in unlawful conduct which was
directed towards coercing its employees to change
their minds concerning union representation and to
prevent the holding of an election.
Respondent's violations of Section 8(a)(1)
included: Systematic, coercive interrogation of its
employees in the unit concerning their union
activities; creating the impression that it was
keeping its employees' union activities under
surveillance; coercive solicitation of its employees to
withdraw their union authorization cards through
open sponsorship of a petition circulated among its
employees accompanied by warnings that it could be
"rough" for employees if they did not go along with
the petition; threats to make working conditions
more onerous, to take away benefits now enjoyed by
employees and threatening to eliminate all unit
employees if the Union comes into the plant; and
other warnings that employees were jeopardizing
their jobs by signing union cards.
In our original decision, we found that by the
foregoing conduct Respondent violated Section
8(a)(1) and (5) of the Act, and we ordered
Respondent, inter alia , to bargain with the Union.
Upon reconsideration, we believe that such findings
and order fully comport with the guidelines laid
down by the Supreme Court in the Gissel case.
Insofar as is relevant here, the Supreme Court in
Gissel approved the Board's authority to issue a
bargaining order to redress unfair labor practices
"so coercive that, even in the absence of a Section
8(a)(5) violation, a bargaining order would have
'N L R B v Gissel Packing Company, 395 U S 575
'The petition states . "We, the employees of the Brown Specialty
Company, wish to withdraw our application for membership in the Office
and Professional Employees Union, and for an election "
180 NLRB No. 149{
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been necessary to repair the unlawful effect of those
[unfair labor practices]."' In addition, the Court
approved the Board 's authority to issue a bargaining
order ". . in less extraordinary cases marked by
less pervasive practices which nonetheless still have
the tendency to undermine majority strength and
impede the election processes." In such situation,
the Board must examine the nature and extent of
the employer's unlawful conduct and ascertain the
likelihood that the use of traditional remedies would
ensure a fair election. The Court instructed the
Board to decide whether ". . even through
traditional remedies might be able to ensure a fair
election there was insufficient indication that an
election would definitely be a more reliable test of
the employees' desires than the card count taken
before the unfair labor practices occurred."'
Applying these principles to the facts of this case,
it appears that, upon the Union's demand for
recognition as the employees' bargaining
representative, Respondent engaged in the unlawful
conduct detailed above in a calculated effort to
undermine the Union's majority status and to
prevent the holding of an election. We are satisfied
that the unfair labor practices were so flagrant and
coercive in nature as to require, even in the absence
of an 8(a)(5) violation, a bargaining order to repair
their effect. In any event, we find that Respondent's
unfair labor practices were of such a pervasive
character as to make it unlikely that their coercive
effects would be neutralized by conventional
remedies so as to produce a fair election thereafter.
In these circumstances, we believe that employee
sentiment as expressed through the unambiguous
authorization cards is a more reliable measure of
their desires on the issue of representation in this
case than an election would be.
Respondent contends, however, that
notwithstanding the intensive effort of President
Golofsky and his supervisors to coerce the
employees into withdrawing their support of the
Union, the Board cannot impose a bargaining order
as a remedy for such unlawful conduct because
Respondent did not become aware of the Union's
organizational activities until after the Union had
achieved majority support. Respondent relies on the
following statement in Gissel:
Normally, however the union will inform the
employer [or the employer will otherwise become
aware] of its organization drive early in order to
subject the employer to the unfair labor practice
provisions of the Act; the union must be able to
show the employer's awareness of the drive in
'N L R B v Gissel Packing Company , supra at 615
'/d at 614
'Id at 616
order to prove that its contemporaneous conduct
constituted unfair labor practices on which a
bargaining order can be based if the drive is
ultimately successful.'
We reject Respondent's contention that the
import of this language precludes the finding of an
8(a)(5) violation or the imposition of a bargaining
order. In that statement, the Court was not raising a
bar to issuance of a bargaining order where the
union 's majority status was achieved before the
employer's awareness of the organizational
campaign. Rather, the Court was emphasizing the
fact that unfair labor practices designed to thwart
employee efforts to exercise their right to bargain
collectively committed contemporaneously with the
employer's awareness of the union's presence, as in
the case herein, may form the necessary predicate
for a finding that the employer's actions violate not
only subsections (1) and (3) of Section 8(a), but also
subsection (5) as well.
This is not to say that in the absence of such an
unlawful response to an organizing campaign, or
where the unlawful response has only a minimal
impact on the employees' efforts to assert their
Section 7 rights, that the employer will be forced to
recognize and bargain with a union- on the strength
of cards obtained before it has had an opportunity
to present its views. On the contrary, as the Court
also emphasized, in the usual case, under "the
Board's present administration of the Act . . . ; an
employer can insist on a secret ballot election,
unless , . . . he engages in contemporaneous unfair
labor practices likely to destroy the union's majority
and seriously impede the election process." In the
instant case, however, Respondent did not take the
opportunity presented by the Union's filing of a
petition for an orderly and lawful presentation of its
views prior to a fair resolution of the issues involved
in a Board conducted election. Rather, as already
noted, it engaged in a campaign directed and
participated in by President Golofsky, the purpose
of which was to coerce employees into withdrawing
their union authorization cards so that an election
would not be held.
In the light of all the circumstances of this case,
we are satisfied that our finding of a violation of
Section 8(a)(5) and our judgment that a bargaining
order is necessary to remedy Respondent's unfair
labor practices and to protect employee exercise of
Section 7 rights, considered in the light of the
Supreme Court's Gissel decision, are appropriate
and should be reaffirmed.
Accordingly, we reaffirm the findings,
conclusions, and remedy provided in our original
Decision and Order.
'/d. at 603.