Atlas Engine Works, Inc

National Labor Relations Board - Board Decisions

Feb 9, 1970

181 N.L.R.B. 52 (N.L.R.B. 1970)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atlas Engine Works, Inc and Teamsters,
Chauffeurs, Warehousemen and Helpers Local No
20, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America Case 8-CA-3990
February 9, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On March 20, 1967, 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)
and (5 ) of the National Labor Relations Act, as
amended , and ordered that the Respondent cease
and desist therefrom and take certain affirmative
action to remedy the unfair labor practices '
Thereafter , on June 28 , 1968, the United States
Court of Appeals for the Sixth Circuit affirmed the
Board 's findings that the Respondent had engaged
in conduct violative of Section 8(a)(1) and (5) and
granted enforcement of the Board ' s order 2
On June 16 , 1969, the Supreme Court of the
United States issued its opinion in N L R B v
Gissel Packing Company ' in which it laid down
certain guidelines relative to the propriety of finding
violations of Section 8(a)(5) and issuing orders to
bargain upon such violations or violations of other
sections of the Act On June 23, 1969 the Supreme
Court granted the Respondent ' s petition for
certiorari and remanded the case to the Court of
Appeals for the Sixth Circuit with instructions to
remand the case to the Board for further
consideration in the light of its decision in Gissel '
Accordingly , on October 30, 1969, the Sixth Circuit
remanded the case for further consideration in the
light of Gissel Pursuant to the court' s remand the
Board issued a notice inviting the parties to submit
statements of position with respect to the
application of Gissel to the proceeding The
Respondent , the Charging Party, and the General
Counsel filed statements in support of their
respective positions S We have again reviewed the
entire record , including the statements of position,
affirm the Board ' s original finding and order in this
respect for the reasons stated below
In its decision of March 20 , 1967, the Board
found that the Respondent , both before and after it
denied the Union 's request foiiXi' cognition and
1163 NLRB 486
'396 F 2d 775 (C A 6)
'395 U S 575
4395 U S 828
'Respondent s request for oral argument is denied Respondent s position
on the remand issues is adequately presented in its statement and the
present record is appropriate for the resolution of those issues
bargaining, engaged in the following conduct in
violation of Section 8(a)(1) of the Act coercively
interrogated its employees as to their own or fellow
employees' union sympathies and leanings,
threatened economic reprisals against employees for
engaging in union activities, conditioned job
advancement upon abandonment or renunciation of
union activity, created an impression among the
employees of surveillance of union activities, and
promulgated, maintained, and enforced a
no-solicitation and no-distribution rule With respect
to the 8(a)(5) allegation of the complaint, it was
found that (1) the Union had obtained valid
authorization cards from a majority of employees in
an appropriate unit at the time of its demand for
recognition and bargaining and that the Union was
thus entitled to represent the employees for
collective-bargaining purposes, and (2) the
Respondent's refusal to bargain with the Union
thereafter was motivated not by a good-faith doubt
of the Union's majority status, but by a desire to
gain time in which to dissipate that representative
status The Board concluded that the Respondent's
refusal to bargain violated Section 8(a)(5) and (1) of
the Act and issued a bargaining order to remedy the
unfair labor practices
The Supreme Court, in setting forth general
principles applicable to the issuance of bargaining
orders, held that the Board has authority to issue
such orders to remedy unfair labor practices "so
coercive that, even in the absence of a Section
8(a)(5) violation, a bargaining order would have
been necessary to repair the unlawful effect of those
[unfair labor practices] "6 In addition, the Court
approved the Board's authority to issue a bargaining
order "in less extraordinary cases marked by less
pervasive practices which nonetheless still have the
tendency to undermine majority strength and
impede the election processes "' In such situation,
the Board must examine the nature and extent of
the employer's unlawful conduct and ascertain the
likelihood that the use of traditional remedies would
ensure a fair election The Court instructed the
Board to decide whether "even though traditional
remedies might be able to ensure a fair election
there was insufficient indication that an election
would definitely be a more reliable test of the
employees' desires than the card count taken before
the unfair labor practices occurred "S
We have reexamined the facts of this case with
these instructions in mind The record shows, as the
Board has heretofore found, that the Respondent's
employees had designated the Union as their
bargaining representative by means of unambiguous
authorization cards ' In response to the Union's
'N L„R B v Gore! Packing Company 395 U S 575 615
'Id of y614
'!d at 616
'We reject the Respondents contention that the Cou't s discussion in
Gisse! of the Board s rules regarding challenges to cards on the basis of
misrepresentations as to their purpose in any way warrants disturbance of
181 NLRB No 13
ATLAS ENGINE WORKS, INC.
organization efforts, however, the Respondent
engaged in a systematic campaign to identify union
adherents and to destroy the Union's majority by
means of coercion, interference, and threats,
including numerous threats of economic reprisal for
support of the Union. Its unfair labor practices were
so coercive in nature as to require, even in the
absence of an 8(a)(5) violation, a bargaining order
to repair their effect. We find, in any event, that the
Respondent's unfair labor practices were of such a
pervasive character as to make it unlikely that their
coercive effects would be neutralized by
conventional remedies so as to produce a fair
election. In these circumstances, we believe that
employee sentiment as expressed through the
authorization cards is a more reliable measure of
their desires on the issue of representation in this
case than an election would be. We therefore find
that by refusing to bargain with the Union and
engaging in the unfair labor practices described
above, Respondent violated Section 8(a)(5), and that
to effectuate the policies of the Act, a bargaining
order is required to remedy its refusal to bargain as
well as its other unfair labor practices.'°
We accordingly, reaffirm the unfair labor practice
finding and the remedy provided in the original
Decision and Order.
the Trial Examiner 's rulings herein . We note that the Court specifically
approved the rules announced in the Cumberland Shoe Co. 144 NLRB
1268, enfd . 351 F 2d 917 (C A 6), and Levi Strauss, 172 NLRB No 57,
cases Our review of the challenges herein leads us to the conclusion that
the Trial Examiner's resolution of the challenges was governed by the
standard approved by the Court
"The Respondent contends that in view of length of time since the
original election and the more than 80 percent turnover of personnel in
SUPPLEMENTAL ORDER
53
In view of the foregoing, and on the basis of the
record as a whole, the National Labor Relations
Board affirms its Order of March 20, 1967, in this
proceeding.
that period , a rerun election rather than a bargaining order is the most
appropriate remedy in the instant case We do not agree In effect,
Respondent seeks to benefit from its own illegal actions in thwarting its
former employees' desire for representation by advocating the right of its
present employees to refrain from such activities . However , delay is
inherent in Board litigation under the scheme of the Act In view of our
finding of pervasive unfair labor practices committed by the Respondent,
to withhold a bargaining order pending a new election , which may again be
interfered with by Respondent , is to put a premium on protracted litigation
by an employer Frito-Lay . Inc, 169 NLRB No 115, Thrift Drug
Company, 167 NLRB No. 57 Under similar circumstances the Ninth
Circuit recently stated
The delay is not the fault of the union ; if it is anyone's fault , it is that of
the employer But regardless of fault, it is an unfortunate but inevitable
result of the process of hearing , decision and review prescribed in the
Act And to deny enforcement, with or without remand for
reconsideration on the basis of facts occurring after the Board 's decision,
is to put a premium upon continued litigation by the employer; it can
hope that the resulting delay will produce a new set of facts, as to which
the Board must then readjudicate .
Emphasis is given to the rapid turnover in the employer 's personnel as
a reason for not enforcing the order. But we think that this is a reason
to enforce Otherwise there will be an added inducement to the employer
to indulge in unfair labor practices in order to defeat the union in an
election He will have as an ally, in addition to the attrition of union
support inevitably springing from delay in accomplishing results , the fact
that turnover itself will help him , so that the longer he can hold out the
better his chances of victory will be " IN L R B v. L B Foster
Company, 418 F 2d I, 4, 5 (C A 9) ] Accordingly, Respondent's motion
for remand and to reopen the record , which is founded on the above
contentions, is denied.