Williams Enterprises

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 937 (N.L.R.B. 1993)

937
312 NLRB No. 140
WILLIAMS ENTERPRISES
1 On January 16, 1991, the National Labor Relations Board issued
its original Decision and Order in this proceeding, finding that the
Respondent was a successor employer and that it had violated Sec.
8(a)(1), (3), and (5) of the Act. 301 NLRB 167. The Respondent
filed a petition for review with the United States Court of Appeals
for the District of Columbia, and the Board filed a cross-petition for
enforcement of its Order. On March 3, 1992, the court enforced cer-
tain of the Board’s unfair labor practice findings, reversed others,
and remanded to the Board for further consideration in light of the
court’s opinion. Williams Enterprises v. NLRB, 956 F.2d 1226.
On May 21, 1992, the Board advised the parties that it had accept-
ed the remand and invited statements of position. Thereafter, the Re-
spondent and the General Counsel filed statements of position.
2 All dates hereafter refer to 1987, unless otherwise indicated.
3 Johnson was an agent of the Respondent when he made that
statement.
Williams Enterprises, Inc., a Division of Williams
Industries, Inc. and Local Lodge 10 of the
International Association of Machinists &
Aerospace Workers, AFL–CIO, CLC. Case 5–
CA–19408
September 30, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
This case, on remand to the Board from the United
States Court of Appeals for the District of Columbia,
presents several questions concerning the Respondent’s
refusal to recognize the Union.1 The Board has accept-
ed the court’s remand and therefore regards the court’s
opinion as the law of the case. Having considered the
Board’s original decision in light of the court’s opin-
ion, we reaffirm the findings, as modified and ex-
plained below, that the Respondent violated Section
8(a)(5) by refusing to recognize and bargain with the
Union, that an employee decertification petition did not
excuse the Respondent’s refusal to bargain, and that
the traditional, appropriate remedy for such a violation
is an affirmative bargaining order.
Background of Facts
On July 13, 1987,2 the Respondent, Williams Enter-
prises, agreed to purchase a steel fabricating plant in
Richmond, Virginia, from Bristol Steel and Iron
Works, Inc. At the time, the Union had represented a
unit of production, maintenance, and warehouse em-
ployees at that plant for years, apparently including the
time of succession from a prior employer to Bristol.
On July 14, Bristol’s plant manager, John Barnes, and
plant superintendent, James Johnson, met with all em-
ployees to announce the purchase agreement and plans
to close the plant in transferring control to the Re-
spondent. Barnes and Johnson invited the employees to
file applications for jobs with the Respondent at the re-
opened plant.
After the meeting, Union Steward Gabe Bullock Jr.
relayed notice of the sale to the Union’s business rep-
resentative, Stephen Spain. Sometime in July, after the
notification of sale, Spain told Plant Manager Barnes
that he ‘‘would like Local 10 to represent the employ-
ees of the new company.’’ Spain further conveyed the
desire ‘‘to have an opportunity to discuss, perhaps ne-
gotiate with’’ an official of the Respondent. Barnes de-
livered the message to the president of the Respond-
ent’s fabrication division. The Respondent did not
reply to the Union’s request.
In the meantime, all 83 Bristol production unit em-
ployees applied for jobs with the Respondent. On Au-
gust 21, Plant Superintendent Johnson and Plant Man-
ager Barnes met with the 44 Bristol employees who
had been selected as ‘‘favored’’ for possible employ-
ment with the Respondent. One employee asked if the
Respondent’s employees would be represented by the
Union. Johnson replied that the Respondent ‘‘did in-
tend to operate the Richmond plant as a nonunion
plant.’’3
Bristol ceased operating the plant on September 30.
The Respondent resumed operations on the next day.
Its new work force increased until October 15, when
it reached a relatively stable number of 39 employees.
On that date, 35 of these employees came from the
predecessor. By November 30, the Respondent had
hired 36 of the 44 former Bristol employees who had
attended the August 21 meeting.
On December 14, the Union filed a charge with the
Board alleging, inter alia, that the Respondent violated
Section 8(a)(5) by refusing to recognize and bargain
with the Union. Subsequently, but prior to December
31, Barnes, whom the Respondent had retained as
plant manager, called a meeting to read and discuss the
Union’s allegations. One employee expressed opposi-
tion to union representation and inquired what employ-
ees could do about it. Barnes replied ‘‘that they could
get a petition together but that it had to be a petition
that they had framed themselves expressing exactly
how they felt. . . . We told them it could be our de-
fense. . . . I said we’d be glad to have the petition.’’
On December 31, the Respondent received a decerti-
fication petition signed by a majority of unit employ-
ees. On January 25, 1988, the Union withdrew its un-
fair labor practice charges without explanation. On
February 2, the Union sent the Respondent a letter
which stated, in relevant part:
[W]e demand you bargain with us in good faith
to reach a new agreement and . . . we stand
ready to negotiate in good faith with you for a
new collective bargaining agreement at any time.
A prompt reply would be appreciated.
Two days later, the Union refiled its unfair labor
practice charge. On February 16, Barnes rejected the
Union’s request for bargaining. He asserted that a ma-
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 E.g., Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 53 (1987);
Enterprise Products Co., 265 NLRB 544, 563 (1982).
5 Sterling Processing Corp., 291 NLRB 208, 217 (1988), citing
Roberts Electric Co., 227 NLRB 1312, 1319 (1977); Sewanee Coal
Operators Assn., 167 NLRB 172 fn. 3 (1967).
jority of the Respondent’s employees had stated that
they did not wish to be represented by the Union.
In its original Decision and Order, the Board af-
firmed the administrative law judge’s findings, inter
alia, that: the Respondent was a successor to Bristol;
Union Agent Spain made a valid, albeit imprecise, de-
mand for bargaining to Plant Manager Barnes in July
1987; the Respondent, through Barnes, violated Sec-
tion 8(a)(1) by his August 21 declaration to employees
of the Respondent’s intent to operate nonunion; the
Respondent, as a successor, had a legal obligation to
recognize and bargain with the Union as of October
15, when it had hired a substantial and representative
complement of employees; the Union’s December 14
filing of unfair labor practice charges reaffirmed its de-
mand for bargaining; Barnes did not violate Section
8(a)(1) by his discussion of a decertification petition;
and the Respondent violated Section 8(a)(5) by refus-
ing to recognize and bargain with the Union on and
after October 15.
The Board also affirmed the judge’s finding that the
decertification petition was tainted, but it modified the
judge’s rationale to rely not only on Johnson’s August
violation of Section 8(a)(1) but also on the Respond-
ent’s 2-1/2-month refusal to recognize the Union. Fi-
nally, as noted in a footnote, the Board modified the
judge’s recommended remedy, which had only directed
the Respondent to cease and desist from refusing to
recognize and bargain with the Union. The Board
added language to the Order which affirmatively di-
rected the Respondent to recognize and, on request,
bargain with the Union as the exclusive collective-bar-
gaining representative of the unit employees.
In review of the Board’s decision, the D.C. Circuit
affirmed the Board’s finding that the Respondent was
a successor to Bristol and had a duty to recognize and
bargain with the Union, on request, after October 15,
1987. However, the court rejected the Board’s finding
that Spain made a valid request for bargaining in his
July 1987 conversation with Barnes. The court there-
fore found that the Respondent did not refuse a request
to bargain as of October 15. The court was satisfied
that the Union’s February 2, 1988 letter to the Re-
spondent could be a valid bargaining demand, but it
remanded this previously unresolved issue to the Board
for initial determination.
The court further stated that, even if the Union had
made a valid request for bargaining on this later date,
the Respondent would not have a duty to bargain with
the Union if it had a good-faith doubt of the Union’s
majority status. The court found that the December 31,
1987 decertification petition, signed by a majority of
the employees, created such a good-faith doubt unless
it was tainted by a prior unfair labor practice. Having
rejected the finding of an 8(a)(5) violation on October
15, the sole antecedent unfair labor practice found by
the Board was Johnson’s August 1987 statement about
the Respondent’s intent to operate as a nonunion plant.
The court affirmed the unfair labor practice finding,
but expressed the view that the Board had failed to en-
gage in a causal analysis to explain why this 8(a)(1)
violation, standing alone, had tainted the petition
signed 4 months later.
Finally, in the event that the Board reaffirmed its
finding that the Respondent violated Section 8(a)(5),
the court directed the Board to explain and justify its
issuance of an affirmative bargaining order. It stated
that the Board had never declared that an affirmative
bargaining order, with its implicit bar on decertifica-
tion for a reasonable period of time, is the standard
remedy in the successor context. The court distin-
guished the type of affirmative bargaining order in
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
which can issue only in limited circumstances and car-
ries with it a bar on decertification from ‘‘a simple re-
medial order that, as a result, requires bargaining’’ but
does not bar decertification. Williams Enterprises v.
NLRB, supra at 1237. Relying, inter alia, on Peoples
Gas System v. NLRB, 629 F.2d 35 (D.C. Cir. 1980),
the court stated that the Board must provide a reasoned
explanation for an affirmative bargaining order because
of its intrusive impact on employees’ right to reject
union representation.
Analysis
1. We accept as the law of the case the court’s view
that the July 1987 telephone conversation between
Business Agent Spain and Plant Manager Barnes was
not a valid request for bargaining. Prior to addressing
the sufficiency of the Union’s letter of February 2,
1988, as a request to bargain, however, we refer to a
finding by the judge which the Board affirmed in its
original decision and the court did not mention in its
opinion. As previously noted, the Union filed an unfair
labor practice charge on December 14, 1987. The
charge alleged, inter alia, that the Respondent violated
Section 8(a)(5) by refusing to recognize and bargain
with the Union. The judge specifically found that this
charge reaffirmed the Union’s earlier demand for rec-
ognition.
The Board has on several occasions found that the
filing of a refusal-to-bargain charge reaffirms a union’s
earlier request for recognition.4 Concededly, in the in-
stant case, there was no prior demand for recognition.
However, the Board has also held that an 8(a)(5)
charge, standing alone, can constitute a demand for
recognition.5 Alternatively, the 8(a)(5) charge in this
939WILLIAMS ENTERPRISES
6 Member Raudabaugh would find that a refusal to recognize and
bargain charge, by itself, would not be sufficient to constitute a valid
request for recognition, but he agrees that the charge here clarified
and reaffirmed the bargaining demand that Spain had attempted to
convey in July 1987.
7 This case is therefore distinguishable from Sullivan Industries,
302 NLRB 144 (1991), enf. denied 957 F.2d 890 (D.C. Cir. 1992),
where the successor employer initially refused unlawfully to recog-
nize the incumbent union but thereafter recognized the union prior
to withdrawing recognition based on a decertification petition signed
by a majority of employees. In that case, the court agreed that the
petition could not be used as post hoc justification for the initial re-
fusal to bargain. In light of the intervening circumstance of recogni-
tion, however, the court found that the Board had failed adequately
to explain why the respondent could not rely on the petition received
prior to its ultimate withdrawal of recognition.
There was no comparable interlude of lawful recognition in this
case. Therefore, we see no separate withdrawal of recognition issue
arising after the Respondent’s receipt of the decertification petition.
Assuming, arguendo, that the court believes that we must still con-
sider whether the Respondent’s misconduct came to an end prior to
the time it received and relied on the petition, we find it reasonable
to infer that the Respondent’s continuous and unremedied refusal to
bargain with the Union and its unremedied 8(a)(1) conduct caused
the disaffection expressed in the petition. Sullivan Industries v.
NLRB, supra at 902 fn. 4. See also, e.g., Fall River Dyeing Corp.
v. NLRB, supra at 49–50. Bay Area Mack, 293 NLRB 125, 134–135
(1989).
8 Master Slack Corp., 271 NLRB 78, 84 (1984). See also Olson
Bodies, 206 NLRB 779 (1973).
case clarified the remarks by Spain in his telephone
conversation with Barnes in July. Although these re-
marks were too vague to constitute a demand for rec-
ognition, there could be no doubt as to the Union’s po-
sition after the filing of the 8(a)(5) charge. The charge
clearly alleged that the Respondent was committing an
unfair labor practice by not recognizing the Union as
the exclusive bargaining representative. Indeed, it is
clear from Barnes’ discussion with employees about
the charge and the potential ‘‘defense’’ of a decerti-
fication petition that he understood that the Union was
demanding recognition and bargaining.6
Based on the foregoing, we find that the Respondent
was obligated to recognize and bargain with the Union
as of December 14, 1987. In the alternative, we find
that the Union made a valid bargaining demand on
February 2, 1988. As the court has acknowledged, the
Union’s letter to Barnes on that date ‘‘specifically re-
quests recognition, states that the Union was ready to
negotiate at any time, and asks for a prompt reply.’’
957 F.2d at 1234. Moreover, the Respondent clearly
recognized this letter as a bargaining demand in its
February 16 reply letter.
Thus, the Respondent refused to bargain after De-
cember 14, 1987, or, at the latest, after February 2,
1988. This issue of whether such refusals were unlaw-
ful requires evaluation of the December 31, 1987 de-
certification petition.
2. From October 15, 1987, until at least December
31, 1987, the incumbent Union undisputedly enjoyed
the legal presumption of continuing majority support.
‘‘[A]n employer may rebut that presumption by show-
ing that, at the time of the refusal to bargain, either (1)
the union did not in fact enjoy majority support, or (2)
the employer had a ‘good faith’ doubt, founded on a
sufficient objective basis, of the union’s majority sup-
port.’’ NLRB v. Curtin Matheson Scientific, 494 U.S.
775, 778 (1990) (emphasis in original). We have found
that the Respondent refused the Union’s bargaining de-
mand, made clear by its December 14 unfair labor
practice charge. Since the employee petition was re-
ceived on December 31, it is clear that the basis for
rebuttal of the majority presumption did not exist as of
‘‘the time of the refusal to bargain,’’ i.e., December
14. Thus, Respondent violated Section 8(a)(5) by re-
fusing on and after December 14 to bargain with the
Union.7
Assuming, arguendo, that the court disagrees with
our finding that the Respondent unlawfully refused to
bargain on December 14, 1987, we conclude that there
was a refusal to bargain in February 1988. In our view,
the decertification petition of December 31, 1987, was
tainted by antecedent unlawful conduct. In this regard,
we now affirm the judge’s original finding in this case
that Plant Superintendent Johnson’s August 1987 vio-
lation of Section 8(a)(1), standing alone, tainted the de-
certification petition. In cases involving unfair labor
practices other than a general refusal to bargain, the
Board has identified several factors as relevant to de-
termining whether a causal relationship exists between
unremedied unfair labor practices and the subsequent
expression of employee disaffection with an incumbent
union. These factors include:
(1) The length of time between the unfair labor
practices and the withdrawal of recognition; (2)
the nature of the illegal acts, including the possi-
bility of their detrimental or lasting effect on em-
ployees; (3) any possible tendency to cause em-
ployee disaffection from the union; and (4) the ef-
fect of the unlawful conduct on employee morale,
organizational activities, and membership in the
union.8
It is true that 4 months passed between Johnson’s
unlawful statement, to all ‘‘favored’’ applicants from
the Bristol work force, that the Respondent ‘‘did in-
tend to operate the Richmond plant as a nonunion
plant’’ and the decertification petition effort in Decem-
ber 1987. However, the mere passage of time would
not reasonably dissipate the effects of the unfair labor
practice in the circumstances of this case. The Re-
spondent retained Barnes, who was present when John-
son made his statement, as its plant manager. In De-
cember, employees who had attended the August meet-
ing comprised a substantial majority of the Respond-
ent’s work force. Furthermore, Barnes convened these
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Williams Enterprises, 301 NLRB at 173.
employees at a meeting in December to discuss the
Union’s unfair labor practice charge and told them that
he would ‘‘be glad’’ to have a decertification petition
as a defense to the charge. Although we have found
that Barnes did not violate the Act by this conduct, we
find it reasonable to infer that his statements served to
remind many employees of Johnson’s earlier unlawful
declaration of the Respondent’s opposition to unioniza-
tion. The decertification petition followed on the heels
of this meeting.
The nature of Johnson’s unlawful statement signifi-
cantly enhanced the probability that it would have last-
ing effects on employees. He did not make a passing
remark to a few employees. Instead, he was responding
to a direct question in a meeting with a group of em-
ployees who faced unemployment if the Respondent
did not retain them. As stated by the judge, the mes-
sage that the Respondent would remain nonunion in
the future ‘‘naturally conveys to employees the notion
that any conduct by them which is not consistent with
that cause may jeopardize their employment possibili-
ties or security.’’9 Obviously, such a message does not
just entail some discrete aspect of unionization. It
strikes at the heart of the relationship between employ-
ees and the Union. It would reasonably tend to cause
employees disaffection from the Union.
Finally, in considering the effects of Johnson’s un-
lawful statement on employee morale and union activi-
ties, we note that the Union had represented employees
at the Richmond plant for years, apparently including
succession from a prior employer to Bristol. There is
no evidence of growing employee disaffection with the
Union during this period. Yet, after the unlawful state-
ment and the reminder of it in December, the employ-
ees sought disaffiliation from the Union. Absent any
proof of a plausible alternative explanation, we find it
reasonable to infer that Johnson’s statement of the Re-
spondent’s intent to operate nonunion contributed to
the disaffection from the Union.
Based on the foregoing, we find that a causal rela-
tionship existed between Plant Superintendent John-
son’s violation of Section 8(a)(1) on August 21, 1987,
and the decertification petition received by the Re-
spondent on December 31, 1987. We also find that the
Respondent is precluded from relying on the petition
to assert a good-faith doubt of the Union’s majority
status because the Respondent’s own unfair labor prac-
tice significantly contributed to the loss of majority
support. Accordingly, we conclude that, even assuming
no prior unlawful refusal to recognize the Union, the
Respondent violated Section 8(a)(5) by refusing on and
after February 16, 1988, to recognize and bargain with
the Union.
3. Having found that the Respondent violated Sec-
tion 8(a)(5) by refusing to recognize and bargain with
the Union, we shall include in the Order a provision
affirmatively requiring the Respondent to bargain in
good faith with the Union. In accord with judicial and
Board precedent discussed below, we hold that an af-
firmative bargaining order is the traditional appropriate
remedy for restoration of the status quo after the un-
lawful refusal of an employer to recognize and bargain
with an incumbent union which was the majority rep-
resentative within the meaning of Section 9(a). This
remedy applies regardless of whether the wrongdoing
employer is original or a successor to the statutory ob-
ligation to bargain with the incumbent union.
Our determination of this issue involves an exercise
of the remedial authority vested by Congress in the
Board through Section 10(c) of the Act. It is well es-
tablished that ‘‘the remedial power of the Board is a
‘broad discretionary one, subject to limited judicial re-
view.’’’ NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258,
262–263 (1969) (quoting Fibreboard Corp. v. NLRB,
379 U.S. 203, 216 (1964)).
For over 50 years, an affirmative bargaining order
has been the standard Board remedy for an employer’s
unlawful refusal to bargain with a union which, as of
the date of the refusal, enjoys the status of a 9(a) col-
lective-bargaining representative. See, e.g., Inland Steel
Co., 9 NLRB 783, 814–816 (1938). This remedy is
warranted, even if the union has lost its majority sup-
port after the unfair labor practice and even though the
order will operate to preclude, for a reasonable period,
an election to test majority status. In such cases, the
Board’s paramount concerns are to restore to the union
the bargaining opportunity which it should have had in
the absence of unlawful conduct and to prevent the
possibility that the wrongdoing employer would ulti-
mately escape its bargaining obligation as the result of
the predictably adverse effects of its unlawful conduct
on employee support for the union.
The Supreme Court has twice expressly endorsed
the Board’s issuance of an affirmative bargaining order
when a respondent has unlawfully refused to bargain
with a union which represented an employee majority
at the time of the refusal. In NLRB v. Lorillard Co.,
314 U.S. 512 (1942), the Court held, per curiam, that
the Board had the discretion to issue an affirmative
bargaining order. It summarily reversed the lower court
of appeals’ attempt to modify the order to permit an
election to determine whether the incumbent union had
lost its majority due to events subsequent to the unlaw-
ful refusal to bargain. Two years later, in Franks Bros.
Co. v. NLRB, 321 U.S. 702, (1944), the Court enforced
the Board’s affirmative bargaining order regardless of
evidence that the incumbent union had lost its majority
support in the interval between the filing of the unfair
labor practice charges and the complaint. The Court
stated:
941WILLIAMS ENTERPRISES
10 321 U.S. at 704–706.
11 We also do not infer any substantial limitation on the Board’s
traditional remedial practice from the comment in Fall River Dyeing
Corp. v. NLRB, supra at 51 fn. 18, that
[W]e assume that if the employer were to refuse to recognize
a union on the basis of its reasonable good-faith belief that
it had not yet hired a ‘‘substantial and representative com-
plement,’’ the Board would likewise enter a remedial order
. . . with no collateral consequences such as a decertification
bar.
Without commenting on the assumption expressed in the Court’s
dictum, it has no apparent relevance to cases such as the present one
in which the Respondent’s refusal to bargain was not based on a
mistaken view about whether it had hired a ‘‘substantial and rep-
resentative complement’’ of employees. Indeed, the Court enforced
the affirmative bargaining order in Fall River against the respondent
employer which, ‘‘rather than being a successor confused about
when a bargaining obligation might arise . . . took an initial posi-
tion—and stuck with it—that it never would have any bargaining ob-
ligation with the Union.’’ 482 U.S. at 53–54.
Out of its wide experience, the Board many
times has expressed the view that the unlawful re-
fusal of an employer to bargain collectively with
its employees’ chosen representatives disrupts the
employees’ morale, deters their organizational ac-
tivities, and discourages their membership in
unions. The Board’s study of this problem has led
it to conclude that, for these reasons, a require-
ment that union membership be kept intact during
delays incident to hearings would result in permit-
ting employers to profit from their own wrongful
refusal to bargain. . . .
[I]n this case and in similar cases [the Board
has adopted] a form of remedy which requires
that an employer bargain exclusively with the par-
ticular union which represented a majority of the
employees at the time of the wrongful refusal to
bargain despite that union’s subsequent failure to
retain its majority. The Board might well think
that, were it not to adopt this type of remedy, but
instead order elections upon every claim that a
shift in union membership had occurred during
proceedings occasioned by an employer’s wrong-
ful refusal to bargain, recalcitrant employers
might be able by continued opposition to union
membership indefinitely to postpone performance
of their statutory obligation. In the Board’s view,
procedural delays necessary fairly to determine
charges of unfair labor practices might in this way
be made the occasion for further procedural
delays in connection with repeated requests for
elections, thus providing employers a chance to
profit from a stubborn refusal to abide by the law.
That the Board was within its statutory authority
in adopting the remedy which it has adopted to
foreclose the probability of such frustrations of
the Act seems too plain for anything but state-
ment. See 29 U.S.C. § 160 (a) and (c).
Contrary to petitioner’s suggestion, this remedy,
as embodied in a Board order, does not involve
any injustice to employees who may wish to sub-
stitute for the particular union some other bargain-
ing agent or arrangement. For a Board order
which requires an employer to bargain with a des-
ignated union is not intended to fix a permanent
bargaining relationship without regard to new sit-
uations that may develop. See Great Southern
Trucking Co. v. NLRB, 139 F.2d 984, 987. But,
as the remedy here in question recognizes, a bar-
gaining relationship once rightfully established
must be permitted to exist and function for a rea-
sonable period in which it can be given a fair
chance to succeed. See NLRB v. Appalachian
Power Co., 140 F.2d 217, 220–222; NLRB v. Bot-
any Worsted Mills, 133 F.2d 876, 881–882. After
such a reasonable period the Board may, in a
proper proceeding and upon a proper showing,
take steps in recognition of changed situations
which might make appropriate changed bargaining
relationship. Id; see 29 U.S.C. § 159 (c).10
The same fundamental concerns for restoration of
the union’s bargaining opportunity and for preventing
the employer from profiting from predictably adverse
effects of its wrongdoing apply to the instant case in-
volving an unlawful refusal to bargain with an incum-
bent union.11
The D.C. Circuit’s opinion in this case relies heavily
on the rationale of NLRB v. Gissel Packing Co., 395
U.S. 575 (1969). We find that the bargaining order sit-
uation addressed in Gissel presents significantly dif-
ferent remedial considerations from the situation of an
unlawful refusal to bargain with an incumbent union
which enjoys presumptive majority status based on
prior certification or recognition. In Gissel cases, a
nonincumbent union seeks initial recognition as a col-
lective-bargaining representative. An employer then en-
gages in unfair labor practices which raise a question
whether a fair and free election can be held in the
foreseeable future to ascertain majority employee pref-
erences about union representation. If the unfair labor
practices are such that a fair election cannot likely be
held, the Board enters a remedial bargaining order. Be-
cause such an order has the effect of making a pre-
viously nonincumbent union the bargaining representa-
tive, there is a need to make a special showing as to
the impact of the unlawful conduct on the prospects
for a fair election. By contrast, the instant case in-
volves a union that was the incumbent Union under the
predecessor. And, in light of well-settled successorship
principles, the Union remained the incumbent under
the successor and was entitled to bargaining rights on
request. Where, as here, the employer refused to bar-
gain with an incumbent, the remedy is to restore the
status quo ante the refusal, i.e., to reseat the union as
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Peoples Gas Systems v. NLRB, supra, is distinguishable. As sub-
sequently described by the court in NLRB v. Creative Food Design,
852 F.2d 1295, 1303 (D.C. Cir. 1988),
Peoples Gas addressed a singular factual situation. . . . In
that case, following the employer’s unlawful withdrawal of
recognition, the union requested, conducted, and lost an elec-
tion. To put the matter simply, the ordinary presumption of
continuing majority support was rebutted by an explicit and
definitive expression of employee preference.
By contrast, in the present case, there was no intervening Board
election. There is not even evidence of a valid decertification peti-
tion having been filed with the Board. As previously stated, the peti-
tion received by the Respondent on December 31, 1987, was fatally
tainted by its unfair labor practices.
13 Franks Bros. Co. v. NLRB, supra at 705–706; Gissel Packing
Co., supra at 613.
14 Moreover, ‘‘there ‘is every reason for the union to negotiate a
contract that will satisfy the majority, for the union will surely real-
ize that it must win the support of the employees, in the face of a
hostile employer, in order to survive the threat of a decertification
election after [a reasonable period of bargaining] has passed.’’’
NLRB v. Gissel Packing Co., supra at 612 fn. 33, quoting Bok, The
Regulation of Campaign Tactics in Representation Elections Under
the National Labor Relations Act, 78 Harv. L. Rev. 38, 135 (1964).
1 There was no union representative present not only because the
Respondent had failed to promptly comply with its statutory obliga-
tion to recognize the Union, but also because the two employees
who had been union stewards in the predecessor’s operation—Gable
Bullock and Melvin Deloatch—had been discriminatorily denied jobs
with the Respondent.
2 An employer may rely on such a petition if it is received ‘‘fol-
lowing recognition,’’ i.e., is not tainted by the employer’s refusal to
recognize the union when the obligation arose. Fall River Dyeing
Corp. v. NLRB, 482 U.S. 27 at 41 fn. 4 (1987), citing Harley-David-
son Co., 273 NLRB 1531 (1985).
the incumbent. There is no need for a special showing
of Gissel factors.12
Finally, in responding to the court’s concerns about
the effects of an affirmative bargaining order on em-
ployee decertification efforts, we emphasize that in
both the Gissel situation and in the ‘‘incumbent’’ situ-
ation, the bargaining order will preclude a challenge to
the union’s majority status only for a reasonable period
of time. The Supreme Court has clearly recognized this
insulated remedial bargaining period as a reasonable
limitation of free choice.13 It is true that, if the parties
execute a collective-bargaining agreement during this
period, the decertification bar may extend for as much
as 3 years of the contract term. The same contract bar
would have arisen, however, if the Respondent had
bargained initially to agreement with the Union rather
than engaging in unfair labor practices. We see no rea-
son why the Union, and the employee majority which
previously supported it, should be deprived of the
prospect of a stable bargaining relationship during the
contract term solely as the result of the Respondent’s
wrongdoing.14
Based on the foregoing, we conclude that an affirm-
ative bargaining order is the traditional, appropriate
remedy for an 8(a)(5) refusal to bargain with the law-
ful collective-bargaining representative of an appro-
priate unit of employees. Having found that the Re-
spondent unlawfully refused to bargain with the Union
on and after December 14, 1987, or, alternatively, on
and after February 16, 1988, we shall reaffirm the
Board’s prior Order that the Respondent recognize and,
on request, bargain in good faith with the Union.
ORDER
The National Labor Relations Board reaffirms its
original Order, reported at 301 NLRB 167 (1991), and
orders that the Respondent, Williams Enterprises, Inc.,
a Division of Williams Industries, Inc., Richmond, Vir-
ginia, its officers, agents, successors, and assigns, shall
take the action set forth in that Order.
CHAIRMAN STEPHENS, concurring.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing to
bargain with the Union and that a bargaining order is
the proper remedy. I premise my finding of a violation
on the following considerations.
I accept, of course, as law of the case the court’s
conclusion that Union Representative Spain’s diffident
expression in July 1987 of his desire for the Union to
represent the Respondent’s employees did not rise to
the level of a demand for bargaining. I would find,
however, that when the Union filed and served its re-
fusal-to-bargain charge on December 14, the Respond-
ent had before it an effective demand for bargaining.
The Respondent’s failure to recognize and agree to
bargain with the Union at that point violated Section
8(a)(5) and (1) of the Act.
Rather than comply with its statutory obligation, the
Respondent chose to call a meeting of its employees
to discuss, without the presence of any union rep-
resentative, the Union as the instigator of legal charges
against the employer.1 Plant Manager Barnes read to
the employees both the refusal-to-bargain allegations
and the allegations that the Respondent had unlawfully
refused to hire former union stewards Bullock and
Deloatch. After he made clear the Respondent’s view
that it had no obligation to bargain with the Union or
to bring the stewards back to the plant, one employee
asked Barnes what could be done to get rid of the
Union. Barnes helpfully suggested that an employee
petition ‘‘could be our defense,’’ and such a petition
duly appeared a few days later.
I would not allow the Respondent to rely on that pe-
tition as a manifestation of loss of union majority. In
reaching this conclusion, I do not rely on the unlawful
statements made by Plant Superintendent Johnson on
August 21. If the Respondent had complied with its
bargaining obligation when it arose and was subse-
quently presented with a union-repudiation petition
signed by a majority of the employees, I would not
find the petition to be tainted, because, in my view the
August remarks were too remote to constitute a taint.2
943WILLIAMS ENTERPRISES
3 NLRB v. Fall River Dyeing Corp., 775 F.2d 425, 433 (1st Cir.
1985) (footnotes omitted), affd. in Fall River Dyeing Corp. v. NLRB,
supra, 482 U.S. at 51 fn. 18.
But, as noted above, instead of complying with its bar-
gaining obligation, the Respondent sent its manager
out to make clear to the employees its view that it was
not obligated to comply. Because this refusal to bar-
gain preceded the petition, the following reasoning,
which has been expressly approved by the Supreme
Court, applies:
[N]o useful purpose is served by permitting [an]
employer to defend the propriety of an earlier re-
fusal to bargain by relying on subsequent events
that have nothing to do with the refusal. Further-
more, once it has been determined that an em-
ployer has unlawfully withheld recognition of an
employees’ bargaining representative, the em-
ployer cannot defend against a remedial bargain-
ing [order] by pointing to an intervening loss of
employee support for the union when such loss of
support is a foreseeable consequence of the em-
ployer’s unfair labor practice.3
Accordingly, I join my colleagues in finding that the
Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with the Union, and I agree, for
reasons stated in the opinion for the majority, that we
should remedy that violation by issuing a bargaining
order.