Brown Specialty Co.Download PDFNational Labor Relations Board - Board DecisionsJan 27, 1970180 N.L.R.B. 969 (N.L.R.B. 1970) Copy Citation 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. Copy with citationCopy as parenthetical citation