International Harvester Co.

National Labor Relations Board - Board Decisions

Nov 26, 1969

179 N.L.R.B. 753 (N.L.R.B. 1969)

INTERNATIONAL HARVESTER COMPANY 753
International Harvester Company and Local Lodge
No. 1468, International Association of Machinists
& Aerospace Workers, AFL-CIO. Case
36-CA- 1650
November 26, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN , AND ZAGORIA
On April 5, 1968, the National Labor Relations
Board issued its Decision in the above-entitled
proceeding,' finding that the Respondent had
engaged in certain conduct in violation of Section
8(a)(1) and (5) of the National Labor Relations Act,
as amended, and ordering the Respondent to cease
and desist therefrom and to take certain affirmative
action, set forth therein. On May 29, 1968, the
Respondent filed a Petition to Review and Set Aside
the Board's Order in the United States Court of
Appeals for the Fourth Circuit. On June 16, 1969,
the Supreme Court of the United States issued its
opinion in N.L.R.B. v. Gissel Packing Company,Z in
which it laid down certain guidelines relative to the
propriety of issuing orders to bargain based upon
findings of violations of Section 8(a)(5), or
violations of other sections of the Act.
Thereafter, on July 15, 1969, the General Counsel
of the Board filed a motion with the Fourth Circuit
to remand this proceeding to the Board for further
consideration in the light of Gissel Packing, supra.
On July 30, 1969, the Fourth Circuit granted the
General Counsel's motion.
On August 19, 1969, the Board, in a notice issued
by its Associate Executive Secretary, informed the
parties herein that the Board, having duly
considered the matter, had decided to reconsider, in
light of Gissel, the 8(a)(5) finding and the bargaining
order issued in this case.3 Thereafter, statements of
position were filed by the General Counsel and the
Respondent.
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.
The Board has reconsidered its prior Decision and
Order, the statements of position, and the entire
record in this case, and hereby reaffirms its Decision
and Order for the reasons indicated below.
As more fully set forth in the Trial Examiner's
Decision, the record shows that Respondent, upon
receipt of the Union's demand for recognition,
immediately embarked upon a course of unlawful
"'0 NLRB No 134
'395 U S 575
BAIT parties, including the General Counsel, were informed that they
could file with the Board in Washington, D C . on or before September 2,
1969, statements of position with respect to the issues set forth above
conduct which was geared towards coercing its
employees to change their minds concerning union
representation. This despite the fact that the Union's
claim for recognition was clearly supportable in that
the Union not only had signed membership cards
from 10 of the Respondent's 15 employees, but also
was in receipt of paid initiation fees from said
employees.
Briefly summarizing this conduct, we note that in
the days immediately following the Union's demand
for recognition, the Respondent violated Section
8(a)(1) of the Act, thereby interfering with the
employees' designation of bargaining representative,
by (1) questioning the employees at a store meeting,
if they had authorized the Union to be their
bargaining representative, or if they had joined the
Union, and specifically, asking employee Forrest D.
Spears if he had joined the Union, and (2) by asking
the employees what their complaints and grievances
were, which, the record shows, were of long-standing
duration, and upon ascertaining same, immediately
taking steps to correct said grievances and
complaints.
Insofar as relevant here, the Supreme Court in
Gissel Packing, supra, 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 been necessary to repair the
unlawful effect of those [unfair labor practices]."
Additionally, in circumstances where the unlawful
conduct is less flagrant in nature, the Court held
that the Board may issue a bargaining order where
such unfair labor practices "have the tendency to
undermine majority strength and impede the election
process," and thus "the possibility of erasing the
effects of [the] past practices and ensuring a fair
election (or a fair rerun) by the use of traditional
remedies . . . is slight and . . . [therefore] employee
sentiment once expressed through cards would,
on balance, be better protected by a bargaining
order... .
We are satisfied that a bargaining order is
warranted on the facts in this case under the latter
standard of Gissel. Thus, the Respondent, upon
being confronted with the Union's demand for
recognition, which was clearly supportable,
embarked upon a deliberate campaign to undermine
the Union's majority status. The Respondent
utilized the forum of an assembled meeting of the
store employees to interrogate the employees, and,
subsequently, ascertained their complaints and
grievances, which were of long-standing duration,
and immediately corrected them, in violation of
Section 8(a)(1) of the Act. These unfair labor
practices, which, although perhaps not extensive in
number, nor heinous in character, nevertheless were
deliberately and calculatedly designed to interfere
with the employees' designation of their bargaining
representative. There are few unfair labor practices
so effective in cooling employees' enthusiasm for a
union than the prompt remedy of the grievances
179 NLRB No. 124
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which prompted the employees' union interest in the
first place. Under such circumstances, Respondent's
unlawful conduct tended to undermine the Union's
majority and impede the election process, and thus
the possibility of erasing the effects of the past
unfair labor practices and of ensuring a free election
by the use of traditional remedies is slight. We
therefore find, on balance, that the employees'
sentiment, expressed through the membership
applications and the paid initiation fees, is a more
reliable measure of employee desires, and that
statutory policies are better effectuated by issuing a
bargaining order in this case. Accordingly, we shall
reaffirm the unfair labor practice findings and the
remedy provided therefor in the original Decision
and Order herein.4
SUPPLEMENTAL ORDER
In view of the foregoing , and on the basis of the
record as a whole , the National Labor Relations
Board reaffirms its Order of April 5, 1968, in this
proceeding.
'Garland Knitting Millc of Beaufort . South Carolina. Inc. 178 NLRB
No 62