Research Federal Credit Union

National Labor Relations Board - Board Decisions

Mar 25, 1999

327 N.L.R.B. 1051 (N.L.R.B. 1999)

RESEARCH FEDERAL CREDIT UNION 1051
Research Federal Credit Union and Local 876, United
Food and Commercial Workers Union, AFL–
CIO–CLC. Cases 7–CA–30659 and 7–RC–19248
March 25, 1999
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On January 8, 1993, the National Labor Relations
Board issued a Decision and Order1 in this proceeding
adopting the judge’s findings that the Respondent vio-
lated Section 8(a)(1), (2), and (5) of the National Labor
Relations Act by soliciting, and promising to remedy,
employee grievances, promising and announcing im-
proved benefits, and by creating, assisting, and dominat-
ing an employee involvement committee. The Board
further adopted the judge’s findings that, as in Camvac
International2—a similar 8(a)(1) and (2) case—a bar-
gaining order was appropriate under NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969), because continuing
effects of the Respondent’s violations rendered slight the
possibility of a fair rerun election. 310 NLRB at 65.3
On February 4, 1993, the Respondent filed a motion to
reopen the record and for reconsideration of the Board’s
Decision and Order. The Respondent argued, among
other things, that a bargaining order was inappropriate
because there had been significant employee and mana-
gerial turnover since its unfair labor practices, that this
turnover was not caused by or related to the Respon-
dent’s alleged unfair labor practices and objectionable
conduct, and that the Respondent did not commit any
additional unfair labor practices between 1990 and the
Board’s Order. On May 21, 1993, the Board rejected
this motion in an unpublished order.
On June 8, 1993, the Respondent petitioned the Dis-
trict of Columbia Circuit Court of Appeals for review of
the Board’s Decision and Order. The Board cross-
petitioned the court for enforcement. On May 10, 1994,
during the pendency of the appeal, the Board requested
that the court remand the Decision and Order to it for
reconsideration4 in light of the court’s recent decisions in
Somerset Welding & Steel5 and Avecor.6 In Somerset
Welding and Avecor, the court had declined to enforce
bargaining orders imposed by the Board in category II
Gissel cases, and had instead remanded the cases to the
Board to consider, among other things, the effect of em-
ployee turnover and management changes on the contin-
ued propriety of this remedy.

1 310 NLRB 56. No current Board member participated in this De-
cision.
2 288 NLRB 816 (1988). Subsequently, the Sixth Circuit Court of
Appeals remanded Camvac to the Board to consider, among other
things, whether turnover at the respondent’s facility eliminated the need
for a bargaining order. 877 F.2d 62 (6th Cir. 1989). On remand, the
Board accepted the court’s decision as the law of the case and vacated
the bargaining order. 302 NLRB 652 (1991).
3 In the underlying case, as in Camvac, the Board adopted the
judge’s finding that it was a “Category II” case under Gissel.
Under Gissel, Category I cases involve unfair labor practices so
“outrageous” and “pervasive” that they cannot be erased by traditional
remedies, thereby making a fair election impossible. Category II cases
are marked by less pervasive unfair labor practices which “nonetheless
still have the tendency to undermine majority strength and impede the
election process.” In the latter category, a bargaining order is appropri-
ate where the Board finds that “the possibility of erasing the effects of
past practices and of ensuring a fair election . . . by the use of tradi-
tional remedies, though present, is slight and that employee sentiment,
once expressed through cards would, on balance, be better protected by
a bargaining order. . . .” 395 U.S. at 613, 614–615.
On June 1, 1994, the court granted the motion and re-
manded the case to the Board for further consideration in
light of its decisions in Somerset Welding and Avecor.
Thereafter, the Board solicited the positions of the parties
on remand. In their responses, the General Counsel and
the Charging Party Union argued that a bargaining order
remained the appropriate remedy because events postdat-
ing the Respondent’s unfair labor practices were irrele-
vant.7 The Respondent conversely contended that a bar-
gaining order was unwarranted because: (1) there had
been substantial employee and managerial turnover in
the 5 years that had elapsed since its adjudged unfair
labor practices; (2) this turnover was not caused by its
unlawful or objectionable conduct; and (3) there had
been a substantial delay between the 1990 election and
the Board’s remand, which delay was not caused by the
Respondent.
Subsequently, through a Notice to Show Cause, the
Board verified the Respondent’s claims that there had
been substantial employee and managerial turnover. The
Board confirmed that, at the time of the Respondent’s
unfair labor practices and the 1990 Board-conducted
election, the Respondent employed about 49 bargaining
unit employees.8 By January 8, 1993, the bargaining unit
had increased to 64 employees (62 as of July 25, 1994),
and only 12 of the original 49 employees—19 percent—
remained.
4 Specifically, the Board informed the court that “the Board—which
now has a full complement of five members, following the recent ap-
pointment of three new members—would like to reconsider its decision
and order in this case in light of the decisions of this court in Somerset
Welding and Avecor.” [Citations omitted.]
5 Somerset Welding & Steel v. NLRB, 987 F.2d 777, 781 (D.C. Cir.
1993), denying enf. in part to 304 NLRB 32 (1991), and remanding for
further consideration.
6 Avecor v. NLRB, 931 NLRB 924, 937 (D.C. Cir. 1991), denying
enf. in part to 296 NLRB 727 (1989), and remanding for further con-
sideration.
7 In its position statement, the Union acknowledged that the em-
ployee involvement committee, which was found to violate Sec. 8(a)(2)
in the underlying proceeding, had been disestablished. According to
the Respondent, it suspended operation of this committee in June 1990,
before the issuance of the administrative law judge’s decision.
8 The bargaining order in the underlying case was supported by au-
thorization cards signed by 30 of these 49 employees. 310 NLRB at 63.
327 NLRB No. 182
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1052
In addition, the Notice to Show Cause verified that by
July 1994,9 additional substantial changes had occurred.
Thus, only four of the supervisors employed in 1990 re-
mained, and at least 76 percent of employees eligible to
vote in the 1990 election were either no longer employed
by this Respondent or were not in bargaining unit posi-
tions.
The Respondent further contends that additional turn-
over has occurred since the foregoing. The Respondent
also argues that it has committed no unlawful conduct
since 1990 and that it has disbanded the committee estab-
lished in violation of Section 8(a)(2).
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Analysis
We have considered the original Decision and record,
the positions of the parties on remand, and all of the rele-
vant evidence. Based on the particular facts in this case,
we have decided to modify the Board’s original decision
to delete the Gissel bargaining order and to direct a sec-
ond election.10
Initially, we note that the Board traditionally assesses
whether a Gissel bargaining order remedy is warranted as
of the time of the respondent’s unfair labor practices.
Historically, the Board has not considered subsequent
employee or managerial turnover in this context. High-
land Plastics, Inc., 256 NLRB 146, 147 (1981).11 In the
particular circumstances of this case, however, we find
that turnover need be considered. Thus, when the Board
sought and obtained a remand from the court, it was spe-
cifically for the purpose of considering the impact on this
case of the court’s recent decisions in Somerset Welding
and Avecor. Having done so, we are constrained to give
substantial weight to the court’s criteria in those cases—
including turnover—when analyzing, on remand, the
propriety of a bargaining order.
In Somerset Welding and Avecor, the court held that
where, as here, unfair labor practices fall within category
II in Gissel,12 a bargaining order is warranted only where
there is substantial evidence that: (1) the union, at some
point, enjoyed majority support in the unit; (2) the re-
spondent’s unfair labor practices tend to undermine ma-
jority strength and impede the election process; and (3)
the Board establishes that the possibility that traditional
remedies—including a rerun election—will be effective,
is slight. As to the third element, the court further held
that the Board must give due deference to employees’

9 This was the date of the Respondent’s affidavit describing em-
ployee and managerial turnover since the election. It was information
in this affidavit that the Board verified through the Notice to Show
Cause.
10 In all other respects the underlying Decision and Order is af-
firmed.
11 Member Hurtgen expresses no view as to whether this position of
the Board is legally correct and appropriate.
12 See fn. 3, supra.
Section 7 rights to choose whether to be represented and,
when evaluating the need for a bargaining order, must
carefully consider employee turnover and managerial
changes occurring after the Board-conducted election, up
until the time of the Board’s order. Avecor v. NLRB,
supra, 931 F.2d at 937–938.13 As stated by the court, the
Board must “explain convincingly why the turnover has
not cleared the air of the unfair labor practices and why
traditional remedies could not reasonably ensure a fair
election.” Id. at 939. See also Charlotte Amphitheater
Corp. v. NLRB, 82 F.3d 1074 (D.C. Cir. 1996).
Here, as established through the Notice to Show
Cause, there has been substantial employee and manage-
rial turnover since the Respondent’s unlawful conduct
and the 1990 election. Between mid-1990 and July
1994, there has been at least a 76-percent turnover of unit
employees and a 76.5-percent change in managerial per-
sonnel.14
Second, there is no evidence that the Respondent’s
violations—which consisted primarily of unlawfully
promising and granting benefits to employees, and form-
ing, dominating, and assisting an employee involvement
committee in violation of Section 8(a)(2)—caused this
substantial turnover. See Camvac International, 302
NLRB 652, 653 (1991).15 Further, as in Camvac—where
the Sixth Circuit refused to enforce the Board’s Gissel
bargaining order—the Respondent has long since sus-
pended operation of its unlawful employee committee.
And, significantly, from its unlawful conduct in 1990
until the Board’s Decision and Order, the Respondent is
not alleged to have unlawfully discharged unit employ-
ees or otherwise to have violated the Act.
Next, almost 9 years have elapsed since the Respon-
dent’s unfair labor practices and there is no claim or evi-
dence that this delay was caused by the Respondent. On
the contrary, the Respondent promptly filed its motion
for reconsideration with the Board after the underlying
Decision and Order, and timely filed for review with the
circuit court. Thus, there is no evidence that it sought to
prolong these proceedings in an effort to dissipate the
Union’s majority status.
Under all of these circumstances, particularly the
Board’s long and unjustified delay in processing the
case, we recognize that, in light of Avecor and Somerset
Welding, a Gissel bargaining order likely would be unen-
forceable. Rather than engender further litigation and
delay over the propriety of a bargaining order, we believe
that employee rights would better be served by proceed-
13 Specifically, the court held that the Board must consider turnover
occurring up until the time that a new order issues.
14 Inasmuch as the turnover as of July 1994 is a factor establishing
that a bargaining order is unwarranted, we need not pass on the rele-
vance of further alleged turnover after that date.
15 See Camvac International, 288 NLRB 816 (1988), remanded
mem. 877 F.2d 62 (6th Cir. 1989), revd. in relevant part 302 NLRB
652, 653 (1991).
RESEARCH FEDERAL CREDIT UNION 1053
ing directly to a second election. Accordingly, we have
modified the underlying Board Order to delete the Gissel
bargaining provision and we have attached a revised No-
tice to Employees. We also direct a second election.
Finally, although a Gissel remedy is not being im-
posed, we do find that an additional remedy is warranted
in order to dissipate as much as possible any lingering
effects of the Respondent’s unfair labor practices, and to
ensure that a fair election can be held.16 Specifically, we
shall order the Respondent to supply to the Union, on a
request made within 1 year of the date of this Supple-
mental Decision, Order, and Direction of Second Elec-
tion, the names and addresses of all current unit employ-
ees. The Board’s delay in acting on the remand which
the Board itself requested, although unfortunate, was no
more the fault of the union or the employees who were
denied a fair opportunity to choose whether they desire
union representation than it was of the Respondent. Our
Order will afford the Union “an opportunity to partici-
pate in [ ] restoration and reassurance of employee rights
by engaging in further organizational efforts, if it so
chooses, in an atmosphere free of further restraint and
coercion.” United Dairy Farmers Cooperative Assn., 242
NLRB 1026, 1029 (1979), enfd. in relevant part 633 F.2d
1954 (3d Cir. 1980).17
ORDER
The National Labor Relations Board orders that the
Respondent, Research Federal Credit Union, Detroit,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Soliciting grievances from its employees with the
implied or express promise that those grievances will be
remedied without a union.
(b) Promising and/or granting benefits or improve-
ments, such as the discharge of its chief operating execu-
tive, creation of a new teller position, promulgation of a
new employee handbook, institution of management
training programs for dealing with employees, estab-
lishment of benefits for part-time employees, creation of
the new position of benefits coordinator, institution of a
wage and benefits survey to eliminate inequities and en-
sure fair wages and benefits for employees, and estab-
lishment of a new performance review procedure, or an-

16 It is well settled that the Board has broad discretion when fashion-
ing a “just remedy.” Maramont Corp., 317 NLRB 1035, 1037 (1995).
17 The Board has previously ordered this remedy in cases where it
found that remedial measures in addition to the traditional remedies for
unfair labor practices were appropriate. See, e.g., Monfort of Colorado,
298 NLRB 73, 86 (1990), enfd. in relevant part 965 F.2d 1538 (10 th
Cir. 1992); United Dairy Farmers Cooperative Assn., supra 242 NLRB
at 1030; Haddon House Food Products, 242 NLRB 1057, 1059 (1979),
enfd. in relevant part sub nom. Teamsters Local 115 v. NLRB, 640 F.2d
392 (D.C. Cir. 1981); and Loray Corp., 184 NLRB 557, 559 (1970).
This remedy is in addition to the Union’s right to have access to a
list of voters and their addresses under Excelsior Underwear, 156
NLRB 1236 (1966), after issuance of the Notice of Second Election.
nouncing such benefits or improvements in order to dis-
courage its employees from supporting the Union; pro-
vided, however, that nothing contained herein shall be
construed as authorizing or requiring the Respondent to
vary or abandon any benefit previously conferred.
(c) Creating, dominating, supporting, assisting, or in-
terfering with the operation and administration of its em-
ployee involvement committee or team or any other labor
organization.
(d) Recognizing or in any like or related manner deal-
ing with its employee involvement committee or team or
any reorganization or successor thereof, as the collective-
bargaining representative of its employees in the follow-
ing unit:

All full-time and regular part-time employees em-
ployed by the Respondent at its facilities located at
7415 Chicago Road, Warren, Michigan, 180 S. Milford
Road, Milford, Michigan, and Suite 103, Fisher Build-
ing, 3011 W. Grand Boulevard, Detroit, Michigan; but
excluding confidential employees, guards and supervi-
sors as defined in the Act.

(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw all recognition from its employee in-
volvement committee or team as the representative of its
employees in the unit found appropriate for the purpose
of dealing with its employee involvement committee or
team concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of work
and completely disestablish such representative; pro-
vided, however, that nothing in this Order shall require
the Respondent to vary or abandon any benefits or im-
provements in working conditions established as a result
of its dealing with the employee involvement committee
or team, or to prejudice the assertion by its employees of
any rights they may have derived as a result of such deal-
ings.
(b) Post at its Warren, Milford, and Detroit, Michigan
facilities copies of the attached notice marked “Appen-
dix.”18 Copies of the notice, on forms provided by the
Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1054
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Supply the Union, on request made within 1 year of
the date of this Supplemental Decision, Order, and Direc-
tion of Second Election, the full names and addresses of
its current unit employees.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Respon-
dent has taken to comply.
IT IS FURTHER ORDERED that Case 7–RC–19248
is reopened and that all prior proceedings held thereunder
are reinstated.
IT IS FURTHER ORDERED that Case 7–RC–19248
is severed and remanded to the Regional Director for
Region 7 for the purpose of conducting a second election
as directed below.
[Direction of Second Election omitted from publica-
tion.]

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT solicit grievances from our employees
with the implied or expressed promise that those griev-
ances will be remedied without a union.
WE WILL NOT promise or grant benefits or im-
provements, such as the discharge of our chief operating
executive, creation of a new teller position, promulgation
of a new employee handbook, institution of management
training programs for dealing with employees, estab-
lishment of benefits for part-time employees, creation of
the new position of benefits coordinator, institution of a
wage and benefits survey to eliminate inequities and en-
sure fair wages and benefits or improvements in order to
discourage our employees from supporting the Union;
provided, however, that nothing contained herein shall be
construed as authorizing or requiring us to vary or aban-
don any benefit previously conferred.
WE WILL NOT dominate, support, assist, or interfere
with the operation and administration of our employee
involvement committee or any other labor organization.
WE WILL NOT recognize or in like or related manner
deal with our employee involvement committee, or any
reorganization or successor thereof, as the collective-
bargaining representative of our employees in the follow-
ing bargaining unit:

All full-time and regular part-time employees em-
ployed by us at our facilities located at 7415 Chicago
Road, Warren, Michigan, 180 S. Milford Road, Mil-
ford, Michigan, and Suite 103, Fisher Building, 3011
W. Grand Boulevard, Detroit, Michigan; but excluding
confidential employees, guards, and supervisors as de-
fined in the Act.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL withdraw all recognition from our em-
ployee involvement committee as the representative of
our employees in the appropriate bargaining unit de-
scribed above for the purpose of dealing with our em-
ployee involvement committee concerning grievances,
labor disputes, wages, rates of pay, hours of employment,
or other conditions of work and completely disestablish
our employee involvement committee as such representa-
tive; provided, however, that nothing in the Board’s Or-
der shall require us to vary or abandon any wages, hours,
or other benefits granted as a result of dealing with our
employee involvement committee, or to prejudice the
assertion by our employees of any rights they derived as
a result of such dealings.
WE WILL supply the Union, on request made within 1
year of the date of the Board’s Supplemental Decision,
Order, and Direction of Second Election, the full names
and addresses of its current unit employees.

RESEARCH FEDERAL CREDIT UNION