Bandag, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1977

228 N.L.R.B. 1045 (N.L.R.B. 1977)

BANDAG, INCORPORATED
Bandag, Incorporated and Local 1016, International
Union of Electrical, Radio, and Machine Workers,
AFL-CIO. Cases 16-CA-5847, 16-CA-5932, and
16-RC-6809
March 24, 1977
SUPPLEMENTAL DECISION AND
ORDER
On June 24, 1976, the National Labor Relations
Board issued a Decision, Order, and Certification of
Results in the above-entitled proceeding' in which
the Board adopted the Administrative Law Judge's
findings that Respondent had violated Section
8(a)(1) and (3) of the Act. A majority of the Board,
however, did not adopt the Administrative Law
Judge's recommendation that Respondent be or-
dered to bargain with the Union. Rather, it certified
the results of the election in Case 16-RC-6809.2
Thereafter, on July 14, 1976, the Charging Party
filed a motion for reconsideration, rehearing, and/or
reopening of the record requesting that the Decision
in this case be vacated and set aside to the extent that
it failed to order Respondent to bargain with the
Union. On August 4, 1976, the General Counsel filed
a motion for reconsideration, also requesting the
Board to issue a bargaining order. On August 16,
Respondent filed an opposition thereto.
On September 14, 1976, the Board, through its
Acting Executive Secretary, issued a Notice To Show
Cause why the Board should not grant the Charging
Party's and General Counsel's motions. On Septem-
ber 28, 1976, the Charging Party filed a response to
the Notice To Show Cause, and on September 27 and
November 8, 1976, Respondent filed replies to the
notice.
We have considered the motions of the General
Counsel and Charging Party, Respondent's opposi-
tion thereto, and the replies to our Notice To Show
Cause, and have decided to grant the Charging
Party's and General Counsel's motions.
In the earlier Decision, the majority's refusal to
issue a bargaining order was based on its holding
that there did not appear to be meritorious objec-
tions before the Board upon which to set aside the
election, as mandated by our decision in Irving Air
Chute Company, Inc., Marathon Division, 149 NLRB
627 (1964), enfd. 350 F.2d 176 (C.A. 2, 1965).
1 225 NLRB 72 (1976).
Following the hearing in this case , Respondent filed a motion to reopen
the record in order that the Board consider evidence of employee turnover
since the election and its effect on the efficacy of issuing a bargaining order
in lieu of directing a second election . In view of our disposition of the case in
the previously issued Decision , we denied the motion because the evidence
sought to be admitted was irrelevant . In view of our disposition of the
proceeding in this Supplemental Decision , Respondent's motion is denied as
228 NLRB No. 122
1045
The majority of this Board adheres to the position
that, where there has been an election, it will not
issue a bargaining order based on unfair labor
practices in the absence of pending meritorious
objections to that election. However, it now appears
to us that the facts in the instant case do not present
such a clear-cut situation.
As we found in our original Decision, the Charging
Party had filed timely objections to the election. Such
objections stated, inter alia:
The above-named employer through his plant
manager, supervisors, and other non-bargaining
unit employees engaged in inproper (sic) conduct
and or unfair labor practices as defined in Section
8(a)(1) of the Act. In so doing, the Employer
destroyed the laboratory conditions affording a
free choice.
This was followed by five enumerated paragraphs
describing allegedly objectionable material sent by
the Employer to its employees. Following these
paragraphs was the following:
By the above and other acts , the above-named
Employer has interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On March 13, 1975, the Union filed unfair labor
practice charges alleging postelection misconduct by
Respondent Company.
In his Report on Objections and Notice of Hearing
issued on March 25, 1975, the Regional Director for
Region 16 approved Petitioner's March 19 request
that the five enumerated objections be withdrawn.
He also noted that his postelection investigation had
revealed other evidence of preelection conduct on the
part of the Employer which could best be resolved by
a hearing, and he ordered that such a hearing be
conducted.
As noted in our earlier Decision, the instant
hearing resulted from a complaint issued on the
unfair labor practice charge, and the direction of a
hearing by the Regional Director. As a result of this
hearing, the Administrative Law Judge not only
found violations of Section 8(a)(1) and (3), but also
found that preelection activity on the part of
Respondent, uncovered by the Regional Director's
investigation, did interfere with the conduct of the
lacking in merit. It is well settled that the Board is not precluded from
issuing a bargaining order even though time has passed and a substantial
turnover of personnel has occurred since the commission of the unfair labor
practices . N.LRB. v. Bernie Katz, d/b/a Williamsburg Steel Products Co,
369 U.S. 736 (1962); New Alaska Development Corp , Alaska Housing
Corporation, 180 NLRB 971 (1970).
2 Chairman Murphy concurred and Members Fanning and Jenkins
dissented.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election. He therefore recommended the issuance of
a remedial Gissel bargaining order.3
Upon consideration, we now find that the facts
show that the Charging Party had not renounced its
interest in disputing the results of the election by its
March 19 withdrawal of the five enumerated objec-
tions. Rather, the remainder of its objections were
still on file with the Board, and its position
concerning election misconduct was preserved. Un-
der the circumstances presented herein, these re-
maining objections were sufficient to support the
objectionable misconduct found by the Administra-
tive Law Judge.
We also find, in agreement with the Administrative
Law Judge, that the 8(axl) and (3) violations herein
called for a remedial bargaining order.4
In the recent decision in Beasley Energy, Inc.,
d/b/a Peaker Run Coal Company, Ohio Division #1,
228 NLRB (1977), a majority of this Board stated
that in cases such as this, where the respondent has
committed violations of Section 8(a)(1) and (3) which
preclude the holding of a fair rerun election, we will
issue a remedial bargaining order. We also stated
that, in the absence of an 8(a)(5) refusal-to-bargain
allegation and, in the absence of a demand for
recognition by the Union, we will order that the
respondent bargain with the union as of the date on
which such respondent embarked on its campaign of
unfair labor practices.
In the instant case, it appears that Respondent had
engaged in such practices at least as early as October
1974, the period during which the Union began its
organizational campaign. However, the evidence
shows that the Union did not represent a majority of
the bargaining unit employees until some time
thereafter. We will therefore require Respondent to
bargain with the Union as of an ascertainable date
when it is shown the Union did represent a majority
of the employees.
As found by the Administrative Law Judge, the
vast bulk of the Union's authorization cards were
signed in October and November 1974 and, at least
by December 19, 1974, the Union represented a
majority of the unit employees. We will therefore
order that Respondent bargain with the Union as of
the latter date.5
For all the foregoing reasons, we rescind the Order
in our prior Decision insofar as it failed to order
Respondent to bargain with the Union. We also
rescind the Certification of Results of Election in
Case 16-RC-6809, and will dismiss the petition in
that proceeding.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the Respondent, Bandag, Incor-
porated, Abilene, Texas, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
IT IS FURTHER ORDERED that the election in Case
16-RC-6809 be set aside and that the petition be,
and it hereby is, dismissed.
3 N.LRB. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
4 Although Members Fanning and Jenkins do not dispute the ma jority's
interpretation of the facts herein , and the finding that there were objections
pending before the Board, and they concur in the issuance of the bargaining
order, they adhere to the reasoning expressed in their partial dissent in the
original Decision.
5 For the reasons given in their separate opinions in Beasley, supra
Members Fanning and Walther would make the bargaining order prospec-
tive in nature , and not retroactive, as does the majority.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees
concerning their union activities or the union
activities of other employees.
WE WILL NOT threaten to discharge or to take
legal action against employees because of their
union activities.
WE WILL NOT threaten to withhold raises or
benefits or to reduce benefits in reprisal against
employees for voting for union representation,
and WE WILL NOT promise employees increases in
wages and benefits in exchange for voting against
union representation.
WE WILL NOT maintain or enforce our present
rule against soliciting for union purposes and
distributing union literature on company premises
(rule 13 and its amendment), and WE WILL NOT
maintain or enforce any rule which prohibits
union solicitation and distribution of union
literature but permits solicitations and distribu-
tions on company premises for nonwork-related
purposes.
WE WILL NOT threaten to close the plant or to
curtail plant operations in reprisal for union
activities on the part of employees.
WE WILL NOT, by any means or in any other
manner, interfere with, restrain, or coerce em-
ployees in the exercise of rights guaranteed them
BANDAG, INCORPORATED 1047
by Section 7 of the Act. These rights include the
right to form , join , or assist labor organizations,
to bargain collectively through representatives of
their own choosing , and to engage in other
concerted activities for their mutual aid and
protection.
WE WILL NOT, by discharge, suspension, or
other means , discriminate against employees in
order to discourage membership in Local 1016,
International Union of Electrical , Radio and
Machine Workers, AFL-CIO, or any other labor
organization . All of our members are free to
become or to remain members of that Union or
any other union.
WE WILL, upon request, bargain collectively
with Local 1016, International Union of Electri-
cal, Radio and Machine Workers , AFL-CIO, as
the exclusive representative of our employees in a
unit composed of all production and maintenance
employees, and excluding all other employees,
laboratory and quality control employees, office
clerical employees, over-the-road truckdrivers,
guards, and supervisors as defined in the National
Labor Relations Act.
WE WILL offer to Carlos Rodriquez full and
immediate reinstatement to his former or substan-
tially equivalent position , without prejudice to his
seniority or other rights and privileges, and WE
will, make whole Carlos Rodriquez and Orville
Scott Hayes for any loss of pay which they have
suffered by reason of the discrimination practiced
against them, with interest thereon at 6 percent
per year.
BANDAG, INCORPORATED