Montgomery Ward & Co

National Labor Relations Board - Board Decisions

May 29, 1992

307 N.L.R.B. 764 (N.L.R.B. 1992)

764
307 NLRB No. 119
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge inadvertently noted that Bob Gore is employed at the
Respondent’s retail store in Bloomington, Illinois. Bob Gore is em-
ployed at the Respondent’s Bloomingdale, Illinois store.
2 The Notice of Second Election to be issued by the Regional Di-
rector shall be both in English and Spanish, and shall include lan-
guage informing employees that the first election was set aside be-
cause the Board found that certain conduct by the Respondent inter-
fered with the employees’ free choice. Lufkin Rule Co., 147 NLRB
341, 342 (1964). 1 Montgomery Ward & Co. v. NLRB, 904 F.2d 1156 (7th Cir.
1990).
2 On the relevant date considered here, one of the involved super-
visors, Bob Gore, was employed at Respondent’s retail store in
Bloomington, Illinois, and had no responsibility relating to the Pharr
facility. Another of the involved supervisors, Temo Gonzalez, be-
came a nonsupervisory sales associate at the Pharr facility on Janu-
ary 8, 1986, and has been on disability leave since April 13, 1987.
Montgomery Ward & Co., Incorporated and United
Food and Commercial Workers International
Union, Local Union No. 455, AFL–CIO–CC.
Cases 23–CA–7882, 23–CA–7888, 23–CA–8019,
23–CA–8089, 23–CA–8323, 23–CA–8414, and
23–RC–4887
May 29, 1992
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 19, 1992, Administrative Law Judge
Gordon J. Myatt issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and brief and
has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt his recommmended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
modifies the Order entered in this proceeding on
March 24, 1988, and reported at 288 NLRB 126 by
deleting paragraphs 1(o) and 2(c).
IT IS FURTHER ORDERED that Case 23–RC–4887 is
severed from Cases 23–CA–7882, 23–CA–7888, 23–
CA–8019, 23–CA–8089, 23–CA–8323, and 23–CA–
8414, and that Case 23–RC–4887 is remanded to the
Regional Director for Region 23 for the purpose of
conducting another election at such time as he deems
the circumstances will permit the free choice of a bar-
gaining agent.2
[Direction of Second Election omitted from publica-
tion.]
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. On May
1, 1991, the Board issued an Order in the above-captioned
proceeding remanding it for further hearing. The Board’s re-
mand Order was based on a decision, issued on review in
this matter, by the United States Court of Appeals for the
Seventh Circuit.1 The court enforced the Board’s unfair prac-
tice findings but remanded the proceeding to the Board to
consider evidence bearing on the propriety of the bargaining
Order. In so doing, the court directed the Board to consider
whether the use of traditional remedies would be adequate to
ensure a fair second election in light of the passage of time
and change in circumstances occurring between the commis-
sion of the unfair labor practices and the issuance of the
Board’s bargaining Order. On advising the parties that it ac-
cepted the court’s remand and after receiving responses from
them to a Notice to Show Cause, the Board issued its re-
mand. The Board directed that the record be reopened for the
purpose of receiving evidence regarding the passage of time
and change of circumstances (employee turnover and change
in supervisory personnel involved in committing the unfair
labor practices) and whether traditional remedies are ade-
quate to ensure a fair second election.
Following several telephonic conference calls with the par-
ties, a joint motion to stipulate facts and a request for a
briefing schedule was submitted on July 16, 1991. An Order
was issued on July 30, 1991, granting the motion and briefs
were submitted by all parties on August 30. Based on the
Board’s remand, the joint stipulation, and the briefs sub-
mitted by the parties, I make the following
FINDINGS OF FACT
In terms of background, 13 supervisors were found to have
been involved in the unlawful conduct which occurred during
the Union’s attempt to organize and represent the employees
at Respondent’s Pharr, Texas facility. The bargaining unit at
the time of these events consisted of approximately 270 em-
ployees. By the joint stipulation, the parties have agreed that
April 28, 1991, is the relevant date to assess the composition
of both the supervisorial staff and the bargaining unit in es-
tablishing the turnover of management and unit employees at
the Pharr facility; and thereby determine the impact such
turnover, along with the passage of time, has on the question
of whether traditional remedies would be adequate to ensure
a second fair election.
The joint stipulation reveals that of the 13 supervisors
found to have committed unfair labor practices at the time
of the initial hearing, only 1 (Chris Rocha) was employed as
a supervisor on the relevant date in 1991.2 The stipulation
further reveals that on April 28, 1991, there were 17 super-
visors at the Pharr facility. Of this number, three were super-
visors at the time of the unlawful conduct. These three were
David Chapa, Rudolpho Renteria Jr., and Chris Rocha. Of
the 17 supervisors, 4 were bargaining unit employees during
the time of the organizing campaign and the commission of
the unfair labor practices. The latter four were Leonor
765MONTGOMERY WARD & CO.
Acevedo, Clifford Lamping, Maria Casarez, and Braulio Or-
tega.
Regarding the composition of the bargaining unit itself, the
stipulation indicates there were approximately 270 bargaining
unit employees eligible to vote in the election at the time of
the violations found in this case. As of April 28, 1991, there
were 154 employees in the bargaining unit. The stipulation
further provides that 41 of the unit employees on April 28
were also members of the bargaining unit at the time of the
unlawful conduct. In addition, the joint stipulation discloses
that when employees leave Respondent’s employment, they
generally are eligible for rehire, although there are times
when this is not the case. Also, that there are occasions when
employees will quit their jobs with Respondent one or more
times and be rehired thereafter, or not be subject to rehire.
Contentions of the Parties
The parties have drawn differing conclusions based on the
facts agreed on in the joint stipulation. The General Counsel
and the Union contend that the effects of the unfair lawful
conduct, which occurred more than 8 years ago, have not
been dissipated by the passage of time nor by the turnover
of the managerial and bargaining unit employees. In support
of this contention the General Counsel argues that 41 of the
current employees in the bargaining unit, now consisting of
154 employees, were members of the larger bargaining unit
at the time of the unlawful conduct and, therefore, were most
likely to recall Respondent’s prior egregious conduct during
the first organizing effort of the Union. The General Counsel
postulates that ‘‘industrial experience’’ dictates that the 41
employees would not only recall Respondent’s unlawful re-
sponse to the Union’s first organizing campaign, but would
also make this conduct known to the other employees in the
unit during a second effort to secure union representation.
Thus, according to the General Counsel, the effects of the
numerous prior unfair labor practices are not and would not
be dispelled by either the passage of time or the turnover in
the employee complement. Accordingly, the General Counsel
asserts that traditional remedies would not be adequate to en-
sure a fair second election.
The Union’s argument is essentially the same as that of
the General Counsel except that the Union relies more on its
analysis of the statistical breakout of the turnover in the em-
ployee complement than on a theory of what would occur if
traditional remedies were now applied. The Union argues
that of the 154 employees in the present bargaining unit, 27
percent (41) were employed at the time of unlawful conduct.
The Union contends that this percentage is a ‘‘significant
number’’ and when considered in the context of the further
fact that it is not unusual for employees to come back to
work for Respondent on ‘‘multiple occasions,’’ the lingering
effects the numerous unfair labor practices still remain. Thus,
according to the Union, traditional remedies are not adequate
to erase the impact of these lingering effects on the unit em-
ployees and the extraordinary remedy of a bargaining Order
is still warranted.
The Union further asserts that even if a bargaining is no
longer considered to be the appropriate remedy here, the per-
vasive nature of the unfair labor practices committed by the
Respondent in its effort to thwart the rights of the employees
in seeking union representation still requires that some type
of extraordinary remedy be imposed on the Respondent. To
this end, the Union urges that if a second election is deemed
appropriate, the Respondent be ordered to provide the fol-
lowing additional relief: (1) pay the Union’s legal and orga-
nizing costs associated with the second election; (2) allow
the Union access to bulletin boards at Respondent’s facility;
and (3) allow the Union to be present at and respond to all
speeches made by Respondent during the election campaign.
The Respondent, on the other hand, approaches the em-
ployee turnover question from a different perspective. Re-
spondent’s statistical analysis of the turnover rate is based on
the bargaining unit complement as it was at the time of the
unfair labor practices. Thus, Respondent contends that the
rate of turnover of the original bargaining unit is 85 percent.
But even if the current unit size is viewed as the basis for
analysis, Respondent asserts the employee turnover is none-
theless substantial since the turnover rate is 74 percent. This
prong of Respondent’s argument tends to indicate that the
turnover rate alone is sufficient to warrant the holding of a
second election in this matter. Respondent now contends this
is the only fair means to protect the employees’ Section 7
right to freely choose whether they wish to be represented
by a union.
Respondent further asserts the passage of time that has
elapsed in this matter (since the unlawful conduct and the
issuance of the Board’s bargaining Order) more than war-
rants a determination that the impact of the unfair labor prac-
tices have been mitigated ‘‘to the extent that their effects can
likely be erased’’ by application of traditional Board rem-
edies. Respondent contends its position in this regard is fur-
ther buttressed by the fact that only 1 of the 13 supervisors
involved in the unlawful conduct is currently employed as a
supervisor at Respondent’s facility.
On the basis of all the above factors, Respondent argues
that traditional remedies are sufficient to ensure the holding
of a fair second election in this matter.
Concluding Findings
The Board’s instructions on remand direct that the impact
of the passage of time between the commission of the unfair
labor practices and the issuance of the Board’s Order, and
the change in circumstances resulting from the turnover in
the employee and management complement be considered in
determining whether traditional remedies are adequate so as
to ensure the holding of a fair second election. Based on the
joint stipulation and considering the language contained in
the court’s remand, I am constrained to conclude that the
time lapse and the change in circumstances warrant a finding
that the effects of Respondent’s prior unlawful conduct, al-
beit extensive and pervasive, have been dispelled and dis-
sipated. Therefore, a second election is now the more appro-
priate means by which the current employees should deter-
mine whether they wish union representation.
There is no question whatsoever regarding the high rate of
employee turnover during the course of the past 8 years. If
viewed in terms of the original bargaining unit, the turnover
rate is 85 percent. If considered in the context of the current
unit composition, the turnover rate is approximately 74 per-
cent. Regardless of which unit basis is considered, the rate
of employee turnover here is at a significant level, and be-
comes a relevant factor in considering whether a bargaining
Order should be imposed on the current work force or
whether the employees should have a free choice in a second
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
election to determine if they wish union representation. Im-
pact Industries v. NLRB, 847 F.2d 379 (7th Cir. 1988) (87-
percent turnover rate); Impact Industries, 293 NLRB 794
(1989) (Board on remand deleted bargaining order); Camvac
International, 302 NLRB 652 (1991) (turnover rate 92 per-
cent; Board on remand deleted bargaining order).
Of equal importance is the turnover of the management
employees involved in the unlawful conduct at the time of
the organizing campaign. As noted, of the 13 supervisors
found to have been involved, only 2 are currently employed
at Respondent’s facility; 1 in a supervisory position and 1 in
a nonsupervisory capacity, but on disability leave since 1987.
Thus, making even more remote the possibility that the lin-
gering effects of the prior unlawful conduct are still present.
Therefore, the turnover of the managerial staff is likewise a
relevant factor in determining whether traditional remedies
are sufficiently adequate to permit the current employees to
exercise a free choice in a second election. Impact Industries,
supra; Camvac International, supra.
Concerning the effect of the passage of time between the
unlawful conduct and the issuance of the bargaining Order,
I find that the time lapse also weighs heavily in favor of the
application of traditional remedies rather than the imposition
of a bargaining order. The main contention of both the Gen-
eral Counsel and the Union regarding this issue is that the
denial of a bargaining order here would permit the Respond-
ent to now benefit from its own unlawful conduct. As a gen-
eral proposition, this argument carries considerable weight.
But it cannot be so mechanically applied that it precludes
taking into account all the circumstances in a given case. In
the instant matter, the Respondent did not engage in any de-
laying tactics which impeded the issuance of the bargaining
Order. Nor is there any evidence here which attributes the
employee turnover to Respondent’s prior unlawful conduct.
Rather, the delay was solely one occasioned by the adminis-
trative process. Therefore, any benefit the Respondent may
gain from its unlawful conduct must be weighed against the
consequences of imposing a remedy that now infringes on
the self-determination rights of the vast majority of the cur-
rent work force; the composition of which has dramatically
changed during the course of the passage of time. In my
judgement, preserving the Section 7 rights of the current unit
employees outweighs any benefit the Respondent may be
perceived to gain as a result of the time delay. Texas Petro-
chemicals Corp. v. NLRB, 923 F.2d 398 (5th Cir. 1991);
Peoples Gas System v. NLRB, 629 F.2d 35 (D.C. Cir. 1980).
Cf. NLRB v. Laverdiere’s Enterprises, 933 F.2d 1045 (1st
Cir. 1991); Emhart Industries v. NLRB, 907 F.2d 372 (2d
Cir. 1990).
In sum, I find the record here establishes that due to the
passage of time and the change in the composition of the
bargaining unit employees and managerial staff, the effects
of the unlawful conduct committed by the Respondent have
been dispelled. Accordingly, I further find that traditional
remedies are now adequate to ensure the holding of a fair
second election.
One final matter remains to be addressed. As noted, the
Union urges that if a second election is held, certain extraor-
dinary remedies be imposed on the Respondent: i.e., payment
of the Union’s legal and organizational costs associated with
the second election; access to the employee bulletin boards
in Respondent’s facility; and to be present at and respond to
all speeches made by Respondent to employees during the
election campaign. As to the payment of the Union’s legal
and organizational costs, there is serious question as to
whether imposition of such a remedy would be deemed re-
medial or punitive in these circumstances. In any event, such
an order would only further delay an already long delayed
resolution of this matter. The last two aspects of the Union’s
request for some type of extraordinary relief relate to the
holding of a fair second election. Since I have found that the
effects of Respondent’s unlawful conduct have now been dis-
sipated by the passage of time and the change in cir-
cumstances, there is no justification for imposing this relief
to ensure a fair second election. See Impact Industries, 293
NLRB 794, 795 fn. 6 (1989) (Board on remand in similar
circumstances rejects a union’s request for extraordinary
remedies to ensure a fair second election).
I recognized, however, that the holding of a second elec-
tion at this time with a virtually new work force subjects the
purpose of the election to numerous interpretations by the
parties. Therefore, in order to prevent any possibility of a
wrongful interpretation as to the reason for the second elec-
tion, I shall recommend that the Notice of Second Election,
in both English and Spanish, include language informing the
employees that the first election was set aside because the
Board found that certain conduct by the Respondent inter-
fered with the employees’ free choice. Lufkin Rule Co., 147
NLRB 341 (1964); La Favorita, Inc., 302 NLRB 849 fn. 3
(1991).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
That the paragraphs in the Board’s Order requiring the Re-
spondent, Montgomery Ward & Co., Incorporated, recognize
and bargain with United Food and Commercial Workers
International Union, Local Union No. 455, AFL–CIO be de-
leted.
That Case 23–RC–4887 be reopened and the Regional Di-
rector conduct a second election thereunder. Further that the
Notice of Second Election, in both English and Spanish, in-
clude language informing employees that the first election
was set aside because the Board found certain conduct by the
Respondent interfered with the employees’ free choice.