Anvil Products, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1975

216 N.L.R.B. 158 (N.L.R.B. 1975)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anvil Products, Inc. and Local Lodge 1923, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Case 16-CA-4812
January 15, 1975
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On August 27, 1973, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding, finding that the Respondent had
engaged in and was engaging in unfair labor
practices in violation of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act, as amended,
and ordered the Respondent to cease and desist
therefrom and take certain affirmative action to
remedy the unfair labor practices.' Thereafter, on
June 26, 1974, the United States Court of Appeals for
the Fifth Circuit affirmed the Board's findings that
the Respondent engaged in conduct violative of
Section 8(a)(1) and (3) of the Act, but remanded to
the Board, for its further consideration, the question
of the validity of its 8(a)(5) finding and bargaining
order.2 On August 27, 1974, the parties were advised
by the Board that it had decided to accept the
remand and granted them an opportunity to submit
statements of position with respect to the issues
raised by the remand. Such a statement was filed by
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
authority in this proceeding to a three-member panel.
We have considered the entire record in this
proceeding, including the Respondent's statement of
position, in the light of the court's opinion and, for
the reasons set forth below, have decided to dismiss
the complaint insofar as it alleges that the Respon-
dent violated Section 8(a)(5) of the Act.
The Union was certified by the Board in May 1971
as the representative of the Respondent's employees.
Bargaining negotiations followed, but were interrupt-
ed by a 2-week economic strike that ended on
February 3, 1973. The last bargaining meeting
between the parties was held on February 11. On
February 15, Respondent reinstated strikers Carver
and Stephens as new employees with loss of their
seniority, and it refused to reinstate striker Tolbert.
Thereafter, on May 30, an employee filed a petition
for a decertification election with the Board. On June
1 205 NLRB 709, Member Kennedy dissenting in part
2 N. L R. B v. Anvil Products, Inc., 496 F.2d 94.
3 Although, on the average , a Board hearing will be conducted within a
6, the Union requested another bargaining session
but, on June 14, the Respondent declined to meet
with the Union, claiming that it no longer represent-
ed a majority of the bargaining unit employees.
As noted above, the court enforced the Board's
8(a)(3) findings in the cases of Carver, Stephens, and
Tolbert but declined to enforce the bargaining order.
It held, in effect, that, as a general proposition, the
type of unfair labor practices involved in this case
could tend to produce disaffections from a union but
that this could not be presumed and that such an
impact had to be demonstrated to justify a bargain-
ing order. The court did not find a factual basis in
the present record for drawing a conclusion as to the
actual impact of the 8(a)(3) violations and remanded
this aspect of the case for further proceedings
consistent with its opinion.
The present record having been found by the court
to be an inadequate basis for making a determination
as to the impact of Respondent's 8(a)(3) violations
upon the filing of the decertification petition, the
only further proceeding open to us would be a
remand for further evidence bearing upon this issue.
However, more than 2 years have passed since the
crucial events of this case. Over such a long period,
an employer's work complement undergoes change
and the passage of time dims memories and
otherwise takes its toll upon such probative evidence
as once existed. To now launch an inquiry in this
case into the extent to which the unfair labor
practices occurring in early 1972 were a factor in the
filing of the decertification petition in May 1972,
especially when it appears that that would largely
require a probing into the subjective factor of the
motivation of those who sponsored and supported
the petition (assuming their present availability),
would, experience teaches, prove to be a fruitless,
and yet costly, endeavor.
Even in the best of circumstances, inquiry into an
employee's subjective motivation for embarking on a
course of action is a risky proposition. Which one, of
several possible factors, actually played the decisive
role in the individual's decision is a difficult enough
task for most people even when all the circumstances
and events are fresh in mind. But, in an unfair labor
practice proceeding, this probe into the employee's
mental processes would not occur until testimony
was taken in a Board hearing on the complaint which
might be some 9 months3 after the events in
question. Can we realistically expect an employee to
recall his inner feelings and reactions to things that
happened so far distant? We think not. Furthermore,
there is also the practical problem encountered when
little over 3 months from the time the unfair labor practice charge was filed,
the charge itself may relate to events which occurred 6 months prior to its
filing.
216 NLRB No. 28
ANVIL PRODUCTS , INC. 159
an employee is asked to testify about something
which he believes could adversely affect his interest.
While we have every reason to expect that the
individual will testify truthfully concerning objective
facts, there is always the possibility , when dealing
with inner thought processes , that the individual's
reassessment of his motivation will unknowingly be
colored by his present circumstances . Oftentimes, the
employee has no personal stake in the matter and
when , as here , the Union has suffered at least a
temporary setback and the Employer has engaged in
serious unfair labor practices , which as yet are
unremedied , it may be expecting too much in hoping
that an employee would possess the objectivity to
testify in a purely candid manner about his thinking
then as opposed to now.
For the foregoing reasons, we believe that it would
be extremely unlikely that a remand could produce
the factual basis necessary for making an informed
judgment on the impact issue remanded by the court
for our resolution . Accordingly, we are constrained
to dispose of this case on the basis of the present
record as viewed by the court , and find that
Respondent had a valid , objective basis for doubting
the Union's majority status when it withdrew
recognition from the Union . We shall therefore
dismiss the complaint insofar as it alleges that
Respondent violated Section 8(a)(5) of the Act.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed , insofar as it alleges that
the Respondent violated Section 8(a)(5) of the Act.
IT IS FURTHER ORDERED that paragraphs 1(a) and
2(a) of the Board's Order issued on August 27, 1973,
and the respective notice provisions contained in the
appendix thereto , be, and they hereby are, vacated.
MEMBER KENNEDY , concurring:
My colleagues ; decision to dismiss the 8(a)(5)
allegations accords with my earlier dissent in this
matter and I concur in the result herein.