Camvac International, Inc.

National Labor Relations Board - Board Decisions

Mar 2, 1990

297 N.L.R.B. 853 (N.L.R.B. 1990)

CAMVAC INTERNATIONAL 853
)
Clunvac International, Inc. and Local 445, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO. Cases 2-CA-18209, 2-CA-18254, and 2-
CA-18617
March 2, 1990
SUPPLEMENTAL DECISION AND
ORDER REMANDING FOR FURTHER
HEARING
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On Apnl 29, 1988, the National Labor Relations
Board issued a Decision and Order' in this pro-
ceeding, finding that the Respondent violated Sec-
tion 8(a)(1), (2), and (5) of the National Labor Re-
lations Act The violations included interrogations,
threats of plant closure, solicitation of gnevances
and promises to remedy them, promises and grants
of benefits, inducing and encouraging employees to
sign a petition disavowing union support, and
domination and assistance to an employee commit-
tee Because of the seventy and pervasiveness of
the unfair labor practices, the Board found that a
bargaining order was appropriate under the test set
forth in NLRB v Gissel Packing Co, 395 U S 575
(1969)
On June 15, 1988, the Respondent filed a motion
for reconsideration and to reopen the record On
June 21, 1988, the Respondent filed a supplemental
motion for reconsideration The Respondent
moved the Board to reconsider its issuance of a
bargaining order because of the extensive turnover
among employees, and in its supplemental motion
contended that a valid election held in February
1981 precluded the Board, under Section 9(c)(3) of
the Act, from ordering the Respondent to bargain
at a time when the Board could not have conduct-
ed a second representation election 2 On June 27,
1988, in an unpublished order, the Board denied as
untimely both of the Respondent's motions 3
On June 20, 1989, the United States Court of
Appeals for the Sixth Circuit issued an opinion4 re-
manding the case to the Board for consideration of
whether Section 9(c)(3) of the Act precluded a bar-
gaining order, and whether turnover at the Re-
spondent's facility rendered a bargaining order in-
,
1 288 NLRB 816
2 Sec 9(c)(3) provides, in pertinent part 'No election shall be directed
in any bargaining unit or any subdivision within which, in the preceding
twelve-month penod, a valid election shall have been held"
'The Board, in distinguishing the instant case from Impact Industries v
NLRB, 847 F 2d 379 (7th Cir 1988), 293 NLRB 794 (1989), further
noted that the Respondent was raising the Issue of turnover for the first
time in its motion for reconsideration
4 Nos 88-5573 and 88-5625 (unpublished)
appropriate The Board accepted the court's
remand
Regarding the Respondent's 9(c)(3) argument,
the court rejected the Board's contention that the
Respondent waived this argument because it was
raised for the first time in the untimely supplemen-
tal motion for reconsideration The court, while
agreeing with the Board that the Respondent's sup-
plemental motion was untimely, found that the sup-
plemental motion did not constitute the Respond-
ent's first attempt at raising the 9(c)(3) argument
Rather, the court found that the Respondent timely
raised its 9(c)(3) argument in its bnef in support of
exceptions to the administrative law judge's deci-
sion Thus, the court remanded the 9(c)(3) issue to
the Board
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Having accepted the court's remand as the law
of the case, we are bound by the court's determina-
tion that the Respondent's 9(c)(3) argument was
timely raised Accordingly, we now address the
merits of the Respondent's argument The parties
are agreed that the Teamsters' card campaign was
conducted less than 1 year after another union, the
International Brotherhood of Painters, had failed to
obtain a majonty of the unit at issue here in a
Board-conducted, secret-ballot election The Re-
spondent argues that Section 9(c)(3) precludes not
only another Board-conducted election within a
year following the election, but also the issuance of
a bargaining order
It is well settled that Section 9(c)(3) prohibits
only the holding of more than one valid election
within a 1-year period, and does not prevent the
Board from imposing a bargaining obligation based
on a card majority within 1 year after a valid elec-
tion In Great Scot Super Market, 156 NLRB 592
(1966), enfd 368 F 2d 173 (7th Cir 1966), cert
denied 386 U S 974 (1967), the Board, with court
approval, held that an employer who had commit-
ted numerous violations of Section 8(a)(1), (2), and
(3) of the Act had also violated Section 8(a)(5) by
failing to recognize or bargain with a union that
had lost an election some 9-1/2 months earlier but
had later established its majonty status by authori-
zation cards The Board rejected the employer's ar-
gument that Section 9(c)(3) provides employers a
1-year penod of repose from the bargaining de-
mands of unions after a valid election, finding that
neither the legislative history nor the plain terms of
Section 9(c)(3) supported such an interpretation
156 NLRB at 598-599 The Board therefore held
that Section 9(c)(3) did not preclude the employ-
er's employees from validly selecting the union as
297 NLRB No 143
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their representative by means of authorization
cards during the year following the issuance of the
certification of results of the prior election, and or-
dered the employer to recognize and bargain with
the union 5
Accordingly, based on the above, we reject the
Respondent's argument that Section 9(c)(3) pre-
cludes the Board from issuing a bargaining order
effective within 1 year from a valid election
Regarding the turnover issue, the court found
that the Board erred in failing to consider whether
turnover at the Respondent's Brewster facility ren-
dered the bargaining order inappropriate, and that
the Board had improperly denied the Respondent's
motion for reconsideration and to reopen the
record 5 The court therefore remanded this issue to
5 The Board in Great Scot Super Market relied on Rocky Mountain
Phosphates, 138 NLRB 292, 295 (1962), in which a bargaining order was
imposed despite the union s having demanded recognition on the basis of
a card majority less than a year after another union (since defunct) had
been certified as the employees' bargaining agent To similar effect, see
also Stecher-Traung-Schmitt Corp, 172 NLRB 1656, 1660 (1968), enfd
408 F 2d 613 (2d Cir 1969), cert denied 396 U S 834 (1969), Astoria
General Tire, 170 NLRB 591, 594 (1968) In Rocky Mountain Phosphates,
Sleeker, and Astoria, the Board found bargaining orders appropnate even
though the employers had not otherwise violated the Act However, in
Linden Lumber v NLRB, 419 U S 301 (1974), decided subsequent to
Rocky Mountain Phosphates Stecher, and Astoria, the Supreme Court en-
dorsed the Board's decision that It no longer would Impose bargaining
orders in lieu of elections, even when a union had clearly established its
majority status, in the absence of other violations by the employer Ac-
cordingly, were we faced again with the facts that were before us in
those three cases, It is highly doubtful that we would, under Linden
Lumber, order those employers to bargain—but only because of the ab-
sence of other violations in those cases, not because elections had been
held less than 1 year before the unions attained majority status Rocky
Mountain Phosphates, Stecher, and Astoria remain good authonty for the
general proposition that Sec 9(c)(3) does not preclude the imposition of a
bargaining order within 1 year after a valid election In any event, Linden
Lumber plainly does not control this case, as we have found previously,
the Respondent engaged in numerous violations of Sec 8(a)(1) and (2)
6 The court, while acknowledging that the Respondent s motion was
untimely, noted that the Board's rules permit It to consider untimely re-
consideration motions
the Board to consider the facts relating to turnover
in order to assess the appropriateness of the bar-
gaining order The court also ordered the Board to
expedite its decision
Accordingly, having accepted the court's
remand as the law of the case, we shall order that
an expedited hearing be held on the turnover issue
before an administrative law judge to consider rele-
vant evidence to be presented by the parties in
light of the court's opinion
ORDER
The National Labor Relations Board orders that
an expedited hearing be held before an administra-
tive law judge, to be designated by the chief ad-
ministrative law judge, for the purpose of allowing
the parties to present such further evidence that is
relevant in light of the court's opinion
IT IS FURTHER ORDERED that the heanng com-
mence as soon as possible, at dates and times to be
determined by the administrative law judge after
consultation with the parties, and be held at such
place as the administrative law judge determines
will permit the most expeditious processing of the
case
IT IS FURTHER ORDERED that the administrative
law judge shall prepare and serve on the parties a
supplemental decision containing findings, conclu-
sions, and recommendations based on all the record
evidence Following the service of the supplemen-
tal decision on the parties, the provisions of Section
102 46 of the Board's Rules and Regulations shall
apply