General Steel Products, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1969

180 N.L.R.B. 56 (N.L.R.B. 1969)

56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Steel Products , Inc., and Crown Flex of
North Carolina , Inc. and Upholsterers'
International Union of North America , AFL-CIO.
Cases I I-CA-2491, I I-CA-2613, and I1-RC-2022
December 12, 1969
SUPPLEMENTAL DECISION
BY MEMBERS FANNING, BROWN , AND ZAGORIA
On March It, 1966, the National Labor
Relations Board issued a Decision and Order in the
above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices in violation of Section
8(a)(I) and (5) of the National Labor Relations Act,
as amended, and 'ordering that the Respondent cease
and desist therefrom and take certain affirmative
action:' Thereafter, on June 28, 1968, the United
States Court of Appeals for the Fourth Circuit
affirmed the Board's findings that the Respondent
engaged in conduct violative of Section 8(a)(1) of
the Act, but reversed the Board's finding of an
8(a)(5) violation and denied enforcement of its
bargaining order.' Thus, the Court rejected the
Board's holding that the Respondent did not have a
good-faith doubt as to the Union's majority status,
which the Board found was established by signed
authorization cards, when the Respondent was
confronted with a demand for recognition and
bargaining The Court held that authorization cards
designating a union for bargaining purposes may not
alone be a basis for requiring an employer to
bargain with the Union.
On June 16, 1969, the Supreme Court of the
United States issued its opinion in this proceeding.'
Although it held that refusal-to-bargain violations
may no longer be predicated upon an employer's
subjective motivation - his good- or bad-faith
doubt of the Union's asserted majority status -
when confronted by a union's demand for
recognition and bargaining, the Court affirmed the
Board's use of authorization cards as a basis for
establishing a union 's majority status and supporting
a bargaining order under certain conditions. The
Court remanded this case to the Board for findings
consistent with the guidelines established by it.
The Respondent, on July 29, 1969, filed with the
Board "Motions . . . for further hearing; to present
further evidence and briefing; and that further
decision be postponed until after ruling by the
Supreme Court of the United States upon petition
for rehearing." On August 15, 1969, the Board
issued a Notice granting all parties the opportunity
to file statements of position with respect to the
matters raised by the Court's remand. Such
1157 NLRB 636
'General Steel Products , Inc , et a! v N L R B , 398 F 2d 339
'N L R B v Gissel Packing Company , General Stee l Products , Inc. et
al, 395 U S 575
statement was filed by the Respondent, in which it
also restated its prior motions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has considered the statement of
position and the entire record in the light of
Supreme Court's opinion and, for reasons set forth
below, affirms its original conclusion that the
Respondent violated Section 8(a)(5) of the Act by
refusing to recognize and bargain with the Union as
the majority representative of the employees, and
that a bargaining order is necessary to effectuate the
purposes of the Act in this case.4
In its Decision of March 11, 1966, the Board
found that the Respondent violated Section 8(a)(1)
of the Act, both before and after the Union's
demand for recognition, by engaging in coercive
interrogation of employees concerning their union
activities; threatening employees with discharge for
engaging in such activities or for voting for the
Union; suggesting that unionization might hurt
business and make new jobs more difficult to obtain;
warning employees that strikes and other dire
economic consequences would result if the Union
were to win the election; and asserting that,
although it would have to negotiate if the Union
won the election, the Respondent could negotiate
endlessly and would not have to sign any agreement.
With respect to the Section 8(a)(5) allegation, the
Board found that, (1) the Union had obtained valid
authorization cards from a majority of the
employees in an appropriate bargaining unit at the
time of its demand for recognition and, therefore,
was entitled to represent the employees for
collective- bargaining purposes, and (2) as
demonstrated by its unfair labor practices, the
Respondent's refusal to bargain on and after August
14, 1964, 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 status, in
violation of Section 8(a)(5). The Board issued a
bargaining order to remedy the Respondent's unfair
labor practices.
Having reexamined this case in the light of the
Gissel guidelines, we reaffirm our earlier conclusion
that the Respondent violated Section 8(a)(5), not
because Respondent lacked a good-faith doubt as to
the Union's majority status when it refused the
Union's bargaining request, but because of its
refusal to bargain with the Union while engaging in
its campaign of unfair labor practices to undermine
the Union's support among its employees.
'Respondent' s petition for a rehearing by the Supreme Court was denied
on October 13, 1969 We do not find sufficient reason for granting
Respondent ' s motion to reopen the record or its request for oral argument
Respondent's position on the remand issues has already been adequately
presented and the present record is appropriate for the resolution of those
issues
180 NLRB No. 8
GENERAL STEEL PRODUCTS, INC.
In its opinion, the Court enunciated certain
principles governing the issuance of bargaining
orders . It 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 ."6 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 or rerun election . The Court
deemed it possible that the requisite findings for a
bargaining order were implicit in the Board's
decision to set aside the representation election and
to issue a bargaining order in this case, but it
remanded the case to the Board so that it might
expressly decide whether such an order would have
been necessary in the absence of an unlawful refusal
to bargain , or whether " . . . even though traditional
remedies might be able to ensure a fair election [or
rerun election] there was insufficient indication that
[a rerun election in this case ] would definitely be a
more reliable test of the employees ' desires than the
57
card count taken before the unfair labor practices
occurred."7
We are convinced that a bargaining order is
justified in this case . The Respondent ' s campaign to
defeat the Union ' s organizational efforts consisted
of serious and extensive acts of interference,
restraint , and coercion as found above. The
Respondent ' s unfair labor practices were so flagrant
and coercive in nature as to require , even absent the
8(a)(5) violation we have found , a bargaining order
to repair their effect . Our further view is that it is
unlikely that the lingering effects of the
Respondent ' s unlawful conduct would be neutralized
by resort to conventional remedies which would
have produced a fair rerun election . We therefore
find that the employee sentiment as expressed
through the authorization cards is a more reliable
measure of the employees ' desires on the issue of
bargaining representation than a rerun election, and
that the policies of the Act would be better
effectuated by a bargaining order to remedy the
8(a)(5) as well as the 8 (a)(1) violations.
Accordingly , we reaffirm the unfair labor practice
findings and the remedy provided therefor in the
original Decision and Order.
'N L R B . v. Gissel Packing Company. 395 U S 575, 615
11d. p 614
'Id p 616