Axelson, Inc., subsidiary of U. S. Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1982

263 N.L.R.B. 77 (N.L.R.B. 1982)

AXELSON, INC.
Axelson, Inc., subsidiary of U. S. Industries, Inc.
and Employees of Axelson, Inc., Petitioner and
International Association of Machinists and
Aerospace Workers, Local Lodge No. 1923.
Case 16-RD-841
July 30, 1982
DECISION AND ORDER DENYING
MOTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On August 15, 1980, the National Labor Rela-
tions Board issued a Decision and Direction in the
above-entitled proceeding,' adopting the Hearing
Officer's recommendation that Petitioner's Objec-
tion 2 to conduct affecting a decertification elec-
tion held on September 21, 1979, be overruled.
Thereafter, Petitioner filed, and the Board denied,
a motion for reconsideration. Shortly after the
Hearing Officer issued his report, Petitioner filed a
charge alleging that the Employer's restriction of
Petitioner's distribution of campaign literature on
company property, which was the subject of Ob-
jection 2, violated Section 8(a)(1) of the Act. On
March 21, 1980, while Petitioner's exceptions to
the Hearing Officer's report were before the
Board, a complaint issued in Case 16-CA-8956 on
Petitioner's 8(a)(1) charge. That case was heard on
August 28, 1980, before an Administrative Law
Judge who issued his Decision on February 25,
1981, finding that the foregoing conduct violated
Section 8(a)(l) of the Act. On August 4, 1981, the
Board adopted the Administrative Law Judge's
Decision 2 but modified his recommended Order.
Petitioner, however, did not seek to have Case 16-
CA-8956 consolidated or considered in connection
with the instant proceeding until after the issuance
of the Board's Decision and Order in Case 16-CA-
8956, when it filed a new "Motion to Consolidate
and/or for Reconsideration." It is that motion
which is now before us.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Petitioner now contends that the records in the
two cases should be considered together because
such consideration "will facilitate a final, just reso-
lution of the issues and possible relief to be accord-
ed" here. This contention is extraordinary in light
of Petitioner's previous silence. Petitioner also
states that the relief accorded for the Employer's
violation of Section 8(a)(1) "is wholly inadequate
i 251 NLRB 282.
' 257 NLRB 576.
263 NLRB No. 10
to remedy the harm done in this case." This con-
tention, too, is extraordinary in light of Petitioner's
previous stance, for not only did Petitioner fail in
Case 16-CA-8956 to seek a more complete
remedy, it also joined a motion before the Board to
narrow the scope and effect of the Administrative
Law Judge's recommended Order. Alternatively,
Petitioner now asks the Board to reconsider for the
second time its August 1980 decision in the instant
proceeding in light of its August 1981 decision in
Case 16-CA-8956.
We deny the motion for consolidation as untime-
ly. The motion for reconsideration, however, re-
quires further comment. It raises two issues, only
one of which is timely. Petitioner argues that the
two decisions are inconsistent with respect to find-
ings of fact and to conclusions of law. The findings
of fact in each case, of course, are based on the re-
spective records made in each.3 On the record in
the instant proceeding, the Board found, and still
finds, insufficient evidence of conduct that would
warrant setting the election aside. To the extent
Petitioner argues that the Board's factual findings
in the instant proceeding are erroneous on the
record then before it, regardless of the record in
Case 16-CA-8956, its second motion for reconsid-
eration is a year late.
The only timely basis for reconsideration is Peti-
tioner's claim that the Board's finding that the Em-
ployer's restriction of Petitioner's campaigning vio-
lated Section 8(a)(l) and, therefore, invalidates, ret-
roactively, its conclusion in the instant proceeding
that the Employer's restriction did not warrant set-
ting the election aside. This argument rests on Peti-
tioner's interpretation of Dal-Tex Optical Company,
Inc., 137 NLRB 1782 (1962). There, the Board set
forth the general principle that "[c]onduct violative
of Section 8(a)(1) is, a fortiori, conduct which inter-
feres with the exercise of a free and untrammeled
choice in an election." 4 But the Board was at-
tempting to avoid, not to establish, a "mechanical
approach." 5 Thus, the Board stated further that it
a The Union, a vitally interested party in the instant proceeding, was
not a party and did not have the opportunity to participate in Case 16-
CA-8956. Thus, in no event could it hbe bound by the record made there.
Further, there were no exceptions to the Administrative Law Judge's
findings and conclusions in Case 16-CA-8956 with respect to the 8(aXI)
findings found there. In these circumstances. the Board's adoption of the
Administrative Law Judge's ultimate findings and conclusions does not
carry with it approval of each and every comment by the Administrative
Law Judge on the evidence, but only of those that are essential to his
ultimate findings. Petitioner, for example. would have us consider the
Administrative Law Judge's gratuitous dictum that Petitioner's efforts to
distribute literature to all employees "was doomed from the inception"
(257 NI.RB at 579.) Our Decision should not be taken as adopting the
statement which, in any event, could not he made from a fair reading of
the record in the instant procceding
4 137 NLRB at 1786
' Id. at 1787.
77
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would "look to the economic realities of the em-
ployer-employee relationship" 6 in determining
whether an employer's conduct warranted setting
aside an election.
Consistent with such a pragmatic approach, the
Board has refused to set aside an election where, in
a two-union election, one union won despite em-
ployer conduct that violated Section 8(a)(1) but
was directed against both unions. The Nestle Com-
pany, 248 NLRB 732, 741 (1980). Cf. The Swingline
Company; Spotnails, Inc., 256 NLRB 704, 718
(1981). This was the approach taken in our pub-
lished decision overruling Petitioner's Objection 2.
We analogized the Employer's unlawful limitation
on distributions by either Petitioner or the Union
to the unlawful restriction of two competing
unions. We forged a narrow ruling, the effect of
which is that, if the Union has won the election de-
spite the Employer's campaigning against it at the
Id.
same time that it restricted employee campaigning,
the election results are entitled to stand as against a
mechanical insistence on the normal "laboratory
conditions." Any other result would permit the
Employer to benefit from its unlawful conduct and
provide it with another opportunity to defeat the
Union. Nathan's Famous of Yonkers, Inc., 186
NLRB 131, 134 (1970); Packerland Packing Compa-
ny, Inc., 185 NLRB 653, 654 (1970). The fact that
the Employer's interference with the employees'
right to distribute literature later was found to vio-
late Section 8(a)(1), a finding that should have
taken no one by surprise, does not cast the issue
into any light significantly different from that in
which we examined it in the first place.
ORDER
It is hereby ordered that the Petitioner's motion
to consolidate and/or for reconsideration be, and it
hereby is, denied in its entirety.
78