Vemco, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 200 (N.L.R.B. 1994)

200
315 NLRB No. 29
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 304 NLRB 911.
2 NLRB v. Vemco, Inc., 989 F.2d 1468, modified 997 F.2d 1149
(6th Cir. 1993).
3 As noted in the court of appeals’ opinion, on April 29, 1989, the
Union had authorization cards signed by 131 of 292 unit employees.
See NLRB v. Vemco, Inc., 989 F.2d at 1488 fn. 15.
4 The Respondent contends that a second election should not be di-
rected due to the passage of time and employee turnover since the
1989 election. The Respondent’s contentions are without merit as the
mere passage of time and employee turnover are not sufficient to
warrant withholding a direction of a second election. Further, the
Respondent does not argue that the original showing of interest, less
the number of cards signed by laid-off employees, would have been
inadequate to support the petition. In any event, it is well settled that
a showing of interest is an administrative matter. See e.g., Allied
Chemical Corp., 165 NLRB 235 fn. 2 (1967).
5 With respect to the Respondent’s averment that it has entered
into a settlement agreement with respect to any backpay owed to
employee Hall under the terms of the court’s order, we note that the
nature and terms of any such agreement are not part of the record
in this case. We find that the effect of the alleged agreement, if any,
Vemco, Inc. and International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW). Cases 7–CA–
29122, 7–CA–29516, 7–CA–29674, 7–CA–29763,
and 7–RC–19035
September 30, 1994
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On August 27, 1991, the National Labor Relations
Board issued a Decision and Order finding that the Re-
spondent had committed certain violations of Section
8(a)(3) and (1) of the National Labor Relations Act.1
On April 5, 1993, the United States Court of Appeals
for the Sixth Circuit issued a decision enforcing the
Board’s Order in part and denying enforcement in
part.2 On March 3, 1994, the Board advised the parties
that it had accepted the remand and invited statements
of position. The Respondent and the Union subse-
quently filed statements of position, and the Respond-
ent filed a supplemental statement of position.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered its original decision and
the record in light of the court’s remand, which it ac-
cepts as the law of the case. Remaining for the
Board’s disposition is the status of the Certification of
Representative issued by the Regional Director in Case
7–RC–19035. The Board has decided to revoke the
certification and to order a second election in this case.
In its Decision and Order, the Board overruled chal-
lenges to the ballots cast by 52 employees who had
been laid off by the Respondent on March 17, 1989,
based on the Board’s finding that the layoffs violated
Section 8(a)(3) and (1). Pursuant to the Board’s Order,
the Regional Director opened and counted the chal-
lenged ballots, and thereafter issued a Certification of
Representative. However, the court of appeals has de-
nied enforcement to the Board’s finding that the mass
layoff was unlawful. Accepting the court’s opinion as
the law of the case, we find that the 52 laid-off em-
ployees were not eligible to vote in the election. With-
out counting the ballots cast by these individuals, the
tally of ballots is 127 for and 141 against the Union.
Accordingly, we shall revoke the Certification of Rep-
resentative.
We further note that, in light of the court of appeals’
finding that the mass layoff was not unlawful, the au-
thorization cards signed by the 52 laid-off employees
may not be counted in determining whether the Union
had a card majority. Because we have accepted the re-
mand, we find that the General Counsel has not estab-
lished that the Union had majority status based on a
count of authorization cards as of April 29, 1989, as
alleged in the complaint.3 Accordingly, and in light of
the court’s finding that the mass layoff was lawful, we
agree with the court that a bargaining order is no
longer warranted in this case.
However, we find that the unchallenged and sub-
stantial violations of Section 8(a)(1) enforced by the
court of appeals reasonably tended to interfere with
employee free choice in the election. In this regard, we
note that these violations include confiscation of union
literature, threats of plant closure, soliciting grievances
and promising benefits in the event employees did not
vote for the Union, and threats of more onerous work-
ing conditions if the Union won, all committed during
the critical period between the date the petition was
filed and the date of the election. We further note that
the threats of plant closure and promise of benefits in
particular were widely disseminated throughout the
plant. Accordingly, we shall set aside the results of the
first election and direct that a second election be held.
See, e.g., Dal-Tex Optical Co., 137 NLRB 1782
(1962).4
Finally, we reject the Respondent’s contention that
it should not be required to post a notice to employees
concerning its violations of the Act due to the passage
of time since the unfair labor practices ‘‘allegedly were
committed,’’ alleged turnover among its supervisory
and unit personnel, or the potential that a notice advis-
ing the Respondent’s employees of their rights under
the Act and reassuring them that Vemco will not vio-
late those rights ‘‘would undermine labor management
relations at Vemco.’’ The court of appeals has ordered
that the Respondent post the Board’s notice, as modi-
fied by the court. We are at a loss to understand the
Respondent’s belief that it is entitled to ignore the
court’s order, or its characterization of the court’s
order that the Respondent post the notice, as amended,
as a ‘‘suggestion’’ on the part of the court.5
201VEMCO, INC.
on backpay owed to employee Hall is best resolved at the compli-
ance stage.
Member Cohen finds that the Respondent’s backpay obligation, if
any, to Gregg Hall has been satisfied pursuant to the voluntary set-
tlement agreement it entered into with Hall. Under the terms of that
agreement, Hall expressly released the Respondent from liability for
backpay in connection with these proceedings. In return, he received
a cash payment. The settlement agreement has been fully executed.
Although his colleagues state that the nature and terms of the agree-
ment are not in the record, he notes that Respondent has described
the agreement in relevant detail, and no one disputes these aver-
ments. Indeed, neither the General Counsel nor the Charging Party
opposed the Respondent’s position in their postremand position
statements to the Board.
ORDER
It is ordered that Case 7–RC–19035 is reopened and
the previously issued Certification of Representative is
revoked.
IT IS FURTHER ORDERED that a second election by
secret ballot shall be held among the employees in the
unit(s) found appropriate, whenever the Regional Di-
rector deems appropriate. The Regional Director shall
direct and supervise the election, subject to the Board’s
Rules and Regulations. Eligible to vote are those em-
ployed during the payroll period ending immediately
before the date of the Notice of Second Election, in-
cluding employees who did not work during that pe-
riod because they were ill, on vacation, or temporarily
laid off. Also eligible are employees engaged in an
economic strike that began less than 12 months before
the election date and who retained their employee sta-
tus during the eligibility period and their replacements.
Those in the military services may vote if they appear
in person at the polls. Ineligible to vote are employees
who have quit or been discharged for cause since the
payroll period, striking employees who have been dis-
charged for cause since the strike began and who have
not been rehired or reinstated before the election date,
and employees engaged in an economic strike that
began more than 12 months before the election date
and who have been permanently replaced. Those eligi-
ble shall vote whether they desire to be represented for
collective bargaining by International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW).