Impact Industries, Inc

National Labor Relations Board - Board Decisions

Apr 25, 1989

293 N.L.R.B. 794 (N.L.R.B. 1989)

794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Impact Industries , Inc and International Union of
Automoblie Aerospace and Agricultural Imple-
ment Workers of America (UAW) Cases 33-
CA-4847, 33-CA-5177, 33-CA-5186, and 33-
RC-2608
April 25, 1989
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On July 30, 1987, the National Labor Relations
Board issued a Decision and Order' in this pro-
ceeding, finding that the Respondent violated Sec-
tion 8(a)(1), (3), and (5) of the National Labor Re-
lations Act The violations, which occurred both
before and after a Board-conducted election, in-
cluded interrogations, threats of reprisals, promises
and grants of benefits, and discharges 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)
The Respondent filed a petition for review with
the United States Court of Appeals for the Seventh
Circuit On May 18, 1988, the court enforced the
Board's unfair labor practice findings, but remand-
ed the case to the Board solely for consideration of
evidence bearing on the propriety of the bargaining
order 2
On July 21, 1988, the Board advised the parties
that it accepted the remand and invited statements
of position Thereafter all parties filed statements
of position On September 29, 1988, the Board re-
manded the case for an expedited hearing before an
administrative law judge to allow the parties to
present relevant evidence in light of the court's
opinion
On December 14, 1988, Administrative Law
Judge Bernard Ries issued the attached Supplemen-
tal Decision and Order on Remand, which recom-
mended that the Board's original Decision and
Order be affirmed The Respondent filed excep-
tions and a supporting brief, the General Counsel
filed a brief in support of the judge's decision, and
the Charging Party filed cross exceptions and a
supporting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered its original decision,
the judge's supplemental decision, and the record
'285 NLRB 5
2 Impact Industries v NLRB 847 F 2d 379 (1988)
in light of the court's remand, which the Board ac-
cepts as the law of the case, and the parties' state-
ments of position, exceptions, and briefs, and has
decided to modify the Board's prior decision by
deleting the bargaining-order requirement and di-
recting that a second election be held
In its original decision, the Board concluded that
the Respondent's unfair labor practices struck at
the heart of employees' organizational campaign,
that several violations were committed at employee
meetings by the Respondent's highest official, its
president, Carl Becker, and thus were likely to
have a profound impact, that the Respondent's un-
lawful grants of benefits were particularly resistant
to traditional remedies because the Board does not
require their recission, that the Respondent's addi-
tional misconduct, including discharge of 13 em-
ployees, was extensive and continued well past the
election date, and that, consequently, the possibility
of erasing the effects of the unfair labor practices
and of conducting a fair second election by the use
of traditional remedies was slight Accordingly, the
Board held that employees' representation desires
expressed though authorization cards would be
better protected by issuing a bargaining order than
by traditional remedies
The Board recognized that there had been some
employee turnover and a significant passage of
time since the misconduct occurred, but concluded
that withholding a bargaining order because of
those factors would, in the circumstances of this
case, reward the Respondent for its own wrongdo
ing Although the Respondent filed a motion to
reopen the record for introduction of further evi
dence regarding turnover, the Board denied the
motion on the ground that it would not affect the
Board s issuance of a bargaining order
The Seventh Circuit remanded the case, finding
that the Board had not considered all the relevant
evidence concerning traditional remedies before
imposing a bargaining order Specifically, the court
instructed the Board to consider evidence the Re
spondent had attempted to present demonstrating
that, since the election, employee turnover had
reached at least 87 percent, and the Respondent
was under new management unrelated to the origi
nal owners The court stated, "As Impact correctly
points out, any taint caused by its past activities
would have been substantially dispelled by such
[employee] turnover 3 Noting that the Respond-
ent's co-owners at the time of the election had
died, that the Respondent was presently managed
by trustees, and that the interim between the elec-
9 Impact Industries supra 847 F 2d at 383
293 NLRB No 99
IMPACT INDUSTRIES 795
tion and the Board's decision was over 7 years, the
court stated as follows
This passage of time, coupled with the change
in circumstances at the plant, would seemingly
present a strong case in support of Impact's ar-
gument that a second representation election
should be conducted to permit the new work
force at Impact to determine whether it wants
to bargain with the UAW 4
The court termed the evidence the Respondent
proffered of postelection changes "particularly rel-
evant" in determining whether remedies short of a
bargaining order might be appropriate, and in this
connection the court observed
If a fair and impartial election can be conduct-
ed, a likely event in light of the high turnover
in both the work force and management, a
bargaining order is unnecessary To grant a
bargaining order in any instance other than in
the last resort (when other traditional remedies
are available) constitutes an abuse of the
Board's discretion 5
After a hearing ordered by the Board in accord
with the court's remand, the judge found that em-
ployee turnover and changes in the Respondent's
management were largely in accord with the repre-
sentations made by the Respondent to the court
Carl Becker, the Respondent's president and major-
ity shareholder when the unfair labor practices
were committed, has died as has the Respondent's
minority shareholder, George Finley Almost none
of the Respondent's 1980 managerial and superviso-
ry staff are currently employed by the Respondent
Although the vice president of manufacturing has
remained, he does not supervise employees The
Respondent's current president Keith Berkout had
no role in the commission of the unfair labor prac
tices Of the Respondent's entire management com
plement during that period, only two persons
remain Keith Becker (Carl Becker's son), who su-
pervises the machining department, and Larry
Brock, the general foreman of the diecasting de
partment Although each committed an unfair labor
practice in 1980-creating the impression of sur-
veillance and threatening an employee with dis-
charge, respectively-the quantum of their miscon-
duct is relatively slight compared with the totality
of the Respondent's violations
The judge further found that the unit increased
from about 135 just prior to the election to about
263 as of October 21, 1988, and that about 90 per
cent of the current unit employees were not em-
4 Id
5Id
ployed by the Respondent when the 1980 unfair
labor practices occurred However, the judge rec-
ommended that the Board's original bargaining-
order remedy be affirmed because the management
changes, employee turnover, and passage of time
cited by the court did not lessen the impact of the
unfair labor practices, given their nature and
extent
We disagree Having accepted the Seventh Cir
cuit's remand as the law of the case, however, we
are bound by the court's rationale as it applies to
this proceeding, and we cannot overlook the spe-
cifics of the court's directive Indeed, the terms of
the court's remand are highly instructive because,
as stated above, the facts before us are essentially
what the Respondent had represented them to be
before the court of appeals The court required the
Board to consider management and employee
changes as "particularly relevant" in determining
the propriety of a bargaining order remedy in the
circumstances before us and stated that the Re-
spondent had "seemingly present[ed] a strong case"
in favor of a second election Guided by these
statements and the courts additional instructions
that because of high management and employee
turnover, the prospect of a fair second election is
"a likely event," we conclude that the impact of
the Respondent's unfair labor practices has been
mitigated to the extent that their effects can likely
be erased through traditional remedies We there
fore find that under the terms of the court's
remand issuance of a bargaining order is not war-
ranted 6
Accordingly, we shall delete the bargaining
order from our original Order, reopen the repre-
sentation proceeding, and direct that a second elec
tion be held
ORDER
The National Labor Relations Board orders that
paragraphs 1(o) and (p) and 2(a) be deleted from
the Board's Decision and Order reported at 285
NLRB 5 (1987)
IT IS FURTHER ORDERED that Case 33-RC-2608
is reopened and that all prior proceedings held
thereunder be reinstated
B Although the Charging Party contended in its cross exceptions that a
bargaining order is the most appropriate remedy it argued in the alterna
Live that should the Board order a rerun election certain extraordinary
remedies were necessary to ensure a fair second election However in
view of our finding above based on the terms of the court s remand that
changed circumstances have substantially dispelled the effects of the
unfair labor practices we further find that our traditional remedies are
sufficient to permit the exercise of free choice in a rerun election We
therefore deny the Charging Party s request for additional remedies
' It is not necessary to reaffirm our poor Order because as noted
above the court of appeals except for the bargaining order provisions
enforced it in all respects
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that Case 33-RC-2608
is severed and remanded to the Regional Director
for Region 33 for the purpose of conducting a
second election pursuant to the direction set forth
below
[Direction of Second Election omitted from pub-
lication ]
Deborah A Fisher Esq, for the General Counsel
Wayne Giampietro Esq and Gregory Freersken Esq
(Witwer Burlage Poltrock & Giampietro), of Chicago,
Illinois, for the Respondent
Irving M Friedman Esq (Katz Friedman Schur &
Eagle), of Chicago Illinois, for the Charging Party
SUPPLEMENTAL DECISION AND ORDER
ON REMAND
BERNARD RIES Administrative Law Judge On July
30, 1987, the Board substantially adopted (285 NLRB 5)
a decision rendered on March 25, 1982, by Administra
tive Law Judge Harold Bernard Jr including a recom
mendation by the latter that a bargaining order be issued
in favor of the Charging Party Union under the author
ity of NLRB v Gissel Packing Co, 395 U S 575 (1969)
On petition to review, however, the United States
Court of Appeals for the Seventh Circuit , while agreeing
with the findings of violations made below, concluded
that the Board failed to consider all the relevant evi
dence concerning the availability of other, more tradi
tional remedies before issuing a broad bargaining order
Impact Industries v NLRB, 847 F 2d 379 (1988) The
court noted that Respondent Impact Industries Inc had
attempted without success on three occasions during the
course of the administrative proceedings to bring to the
attention of the administrative law judge and the Board
certain facts which Respondent deemed relevant to the
Gissel remedy namely, a turnover in its work force ap
proaching 90 percent since the union campaign in 1980
and changes in management In the court s view such
changes in circumstances " together with the fact that
more than 7 years had elapsed between an election lost
by the Union on May 16 1980 and the Boards 1987
Order merited consideration by the Board in relation to
the proposed bargaining order
On July 21 1988, the Board wrote to the parties de
Glaring that it had decided to accept the remand from
the Court of Appeals" and inviting statements of posi
tion On September 29, 1988, after reviewing the state
ments filed by all parties the Board issued an Order re
manding the case for 'an expedited hearing [to] be held
before an administrative law judge to be designated by
the Chief Administrative Law Judge" I was duly ap
pointed on October 12 and a hearing was held in Chica
go Illinois, on November 1 Briefs were received from
the parties on or about November 29
The Boards Order of September 29 instructs me to
prepare a supplemental decision containing findings
conclusions and recommendations based on all the
record evidence Those findings conclusions and rec
ommendations follow
I THE UNFAIR LABOR PRACTICE PROCEEDING
The 1982 decision issued by Administrative Law
Judge Bernard discloses that the union campaign com
menced at Respondents Sandwich, Illinois die castings
plant in February 1980 At that time the plant employed
about 118 production and maintenance employees a sub
stantial number of whom were aliens of Mexican descent
The union effort quickly produced 106 signed authoriza
tion cards from the bargaining unit employees, the validi
ty of these cards was not tested at the hearing because
the Respondent agreed to stipulate that the Union had
obtained a majority of valid cards at all material times
Judge Bernard found that although Respondent s
counsel had provided advice about the lawful conduct of
an antiunion campaign , the advice was not followed
Employees who wore UAW buttons and stickers were
told by one supervisor that Respondents president and
majority owner Carl Becker, isn t going to like it and
that the result of voting for the Union would be a reduc
tion in existing benefits Employees were unlawfully told
that they would receive no wage increases until the
union activities terminated Employees were informed by
a working supervisor on several occasions that President
Becker had threatened plant closure if the Union secured
bargaining rights The same supervisor asked an employ
ee wearing a union button how the union meetings were
going, and another supervisor unlawfully and repeatedly
questioned employees about their sentiments
Respondent liberalized employee breaktimes and vaca
tion benefits, and put on an elaborate display of a new
service award plan involving the award of jewelry
this is the kind of well timed bestowal of benefits con
demned by the Supreme Court in NLRB v Exchange
Parts Co, 375 US 405, 409 (1964), as suggestive of a
fist inside the velvet glove A supervisor told employ
ees that selection of the Union would result in loss of
benefits and, consequently, bargaining from scratch Em
ployees were notified by Owner Becker at preelection
meetings in circumstances violative of Section 8(a)(1)
that if they had problems they could bring them to man
agement for resolution The record also showed express
and implied promises of benefits by supervisors to em
ployees sustained surveillances of employees who en
gaged in handing out union literature unlawfully moti
vated exclusion of former employees from plant proper
ty, and a coercive public admonition of a union activist
by Chairman Becker
Although the Union secured signatures on 106 cards, it
lost an election held on May 16 1980 by a vote of 59 to
49, with 9 viable challenged ballots Even after the elec
tion as Judge Bernard found and while the Union s ob
jections to the conduct of the election were pending Re
spondent persisted in attempting to emphasize its role as
the source from which future benefits must flow and
which may dry up if it is not obliged Ibid Becker, on
request immediately granted a longstanding (and previ
ously denied) request by the inspection department em
ployees for reversion to a former work schedule and
paid lunch period In July a supervisor threatened an
employee with discharge for talking about a union In
September, another supervisor relayed the word to an
IMPACT INDUSTRIES 797
employee that Becker had promised a wage increase in
exchange for support of the Company In October, an
employee who had openly espoused the union cause re
ceived a written warning in circumstances which led the
administrative law judge to conclude that the warning
had been inspired by union animus
In that same month, with respect to two especially
active pro union supporters Respondent also unlawful
ly converted into a termination the layoff of one of them
and avoided reinstating the other, which actions were
held to be violative of Section 8(a)(3) In December, a
supervisor repeated to two employees (7 months after
the election and while the objections were still pending)
that if the Union `got in,' Respondent would close the
plant The most significant finding, however, was the
conclusion that between October and December, Re
spondent caused the termination or constructive dis
charge of 11 Mexican aliens by either directly terminat
ing them or by instigating an investigation of their status
by the Immigration and Naturalization Service, causing
some to quit the motivation to reduce its large comple
ment of Mexican alien employees was found to reside in
Respondents proven knowledge that, earlier in the year,
35 of the 36 such employees had signed UAW cards
On the foregoing findings, Administrative Law Judge
Bernard recommended that the Board issue an order
containing the traditional remedial provisions as well,
and an order requiring Respondent to bargain with the
UAW as the representative of the unit employees On
July 30, 1987, the Board agreed with most of Judge Ber
nard s conclusions and, specifically, with the propriety of
the recommended bargaining order, it also expatiated at
some length in its decision about the reasons for exercis
ing such authority under Gissel Packing Co
As indicated earlier the Respondent made several of
forts at the administrative law judge and Board levels to
reopen the record for the purpose of showing employee
turnover and changes in management and supervision
evidence aimed directly at the bargaining order Al
though these efforts had been fruitless the Seventh Cir
cuit ordered the Board to receive and consider the prof
fered evidence which I now set out below
II THE CURRENT SITUATION
The facts produced at the remand hearing are with
some elaboration and one major exception, what Re
spondent had represented to the court Since 1980, Carl
Becker, Respondents dominant force -the term used
by the current president for the former chairman of the
board and majority stockholder-and the minority stock
holder, George Finley have both died The Becker
stock in Respondent is held in trust as Becker s will in
structs, for the benefit of his five children the present
executors of the Becker will, and trustees of the trust,
are Samuel W Witwer Jr who represented Respondent
in the underlying litigation here and Donovan Chester
an accountant located in Peoria, Illinois, who has been a
member of Respondents board of directors since before
1980 Neither man is active in the day to day operation
of the business, nor do they appear to have any personal
interest in or income from (other than customary fees)
the trust asset However, Becker s will affords them un
limited authority to participate in the management and
conduct of the business of Impact Industries
Most of the 1980 managers and supervisors are gone,
in one way or another Besides Carl Becker the 1980
president and two vice presidents have left as has the
personnel administrator The vice president of manufac
turing in 1980, now 72 years old, is currently the vice
president of special projects' and supervises no one
A major change was the July 31 1985 accession of
Keith Berkhout to the presidency (and the board of di
rectors) Although Berkhout, now age 41, worked for
Respondent in 1980 as the controller, he testified that he
played no role in the anti UAW campaign, and his name
does not appear in Judge Bernard s decision Berkhout s
affidavit attached to Impact s statement of position after
the remand was somewhat more definite than his subse
quent testimony while the affidavit referred to unfair
labor practices and any form of employee coercion' as
activities of which I strongly disapprove and included
a promise to do everything necessary to ensure that a
rerun election occurs in a fair and proper environment
he seemed more reticent at the hearing candidly conced
ing that he did not believe that his employees needed a
union , and failing to indicate that he would take any spe
cial precautions to assure an election free from coercion
Hey indicated that he would conduct a vigorous antiunion
campaign ("Certainly we would do everything within
the law to express our opinions and allow the employees
a free choice ) I
Two other former managerial employees remain Their
roles will be discussed infra
The size of the unit employee roster has increased sub
stantially since the 1980 election from about 135 (see R
Exh , the Apr 24 Excelsior list) to 263 as of October 21
1988 2 Also as of that date, there still remained on the
payroll at least 25 bargaining unit employees who had
been employed in 1980 and 6 former employees from
that period who are now working supervisors At the
time of the November 1 hearing, Respondent was com
plying with the portion of the court s opinion which of
firmed the Board s decision The required notices were
posted at the plant One of the principal union activists
Irene Ruiz-found by Judge Bernard to have been an
especially active pro union supporter and also in Oc
tober 1980, the victim of an 8(a)(3) discharge-having
been offered reinstatement was scheduled to return to
work the week following the instant hearing, and Re
spondent had offered reinstatement to other discrimina
tees who were able to furnish required work permits
Respondents witnesses testified that since 1987, an
effort has been made to sell the business, a decision
reached by the trustees on behalf of the heirs A firm
which specializes in such sales has been engaged and, ac
cording to Respondent's witnesses at least one company
is giving serious consideration to purchasing the business
' I think that Berkhout s unfortunate statement that he would weigh
the proper and the improper way to do things was clearly in context
not meant to suggest that he might choose the latter
2 R Exh 7 shows 263 unit employees and 13 working supervisors on
that date
798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III THE APPLICABLE GISSEL PACKING PRINCIPLES
This remand involves an application of Gissel Packing,
supra, and it is useful to revisit some of the relevant prin
ciples set out in that important case The Supreme Court
held in Gissel that authorization cards, although admit
tedly inferior to the election process, can adequately re
flect employee sentiment when that process has been im
peded," and then went on at some length to explicate
why cards are, in the Court s view, not that much inferi
or to an election ballot 395 U S at 603 3
The Gissel Court went on to explore the propriety of
issuing a bargaining order as a remedy where an employ
er has committed unfair labor practices which make un
likely the holding of a fair election or a fair rerun elec
tion It first pointed out that a nonmajontanan bargain
ing order introduced no new principle (395 US at 610
611)
We have long held that the Board is not limited to
a cease and desist order in such cases , but has the
authority to issue a bargaining order without first re
quiring the union to show that it has been able to
maintain its majority status See NLRB v Katz,
369 U S 736, 748, n 16 (1962), NL R B v P Lord
lard C o, 314 U S 512 (1942) And we have held
that the Board has the same authority even where it
is clear that the union which once had possession of
cards from a majority of the employees represents only
a minority when the bargaining order is entered
Franks B r o s C o v NLRB 321 U S 702 (1944)
We see no reason now to withdraw this authority
from the Board If the Board could enter only a
cease and desist order and direct an election or a
rerun it would in effect be rewarding the employer
and allowing him to profit from [his] own wrong
ful refusal to bargain, Franks Bros supra at 704,
while at the same time severely curtailing the em
ployees right freely to determine whether they
desire a representative The employer could contin
ue to delay or disrupt the election processes and put
off indefinitely his obligation to bargain and any
election held under these circumstances would not
be likely to demonstrate the employees true undis
torted desires [Emphasis added]
The Court rejected employers claims that
[T]he bargaining order is an unnecessarily harsh
remedy that needlessly prejudices employees Sec
tion 7 rights solely for the purpose of punishing or
restraining an employer Such an argument ignores
that a bargaining order is designed as much to
S Although the Court did not say so it might be argued that signing an
authorization card can be an especially cogent way of expressing a desire
for union representation An employee who affixes his signature to a
union card not knowing for sure who may eventually see the card will
often be evidencing a conviction more profound than simply checking
the Yes box on an an unsigned ballot in the anonymity of a voting
booth It might also be noted that the extension of recognition based on
authorization cards is a time honored method of achieving representative
status e g Island Construction Co 135 NLRB 13 (1962) Hayes Coal Co
197 NLRB 1162 ( 1972) and gives rise to legally enforceable rights Toltec
Metals v NLRB 490 F 2d 1122 (3d Cir 1974)
remedy past election damage as it is to deter future
misconduct If an employer has succeeded in under
mining a union s strength and destroying the labora
tory conditions necessary for a fair election, he may
see no need to violate a cease and desist order by
further unlawful activity The damage will have
been done, and perhaps the only fair way to effectu
ate employee rights is to re establish the conditions
as they existed before the employers unlawful cam
paign There is, after all, nothing permanent in a
bargaining order, and if, after the effects of the em
ployer s acts have worn off, the employees clearly
desire to disavow the union , they can do so by
filing a representation petition (Id at 612, 613 )
In summarizing the factors which enter into a determi
nation whether bargaining orders should be entered the
Court noted that even the Fourth Circuit, which had re
fused to validate as a general matter the use of cards as a
foundation for a bargaining order had nonetheless left
open the possibility of imposing a bargaining order, with
out need of inquiry into majority status on the basis of
cards or otherwise, in exceptional' cases marked by out
rageous and pervasive unfair labor practices Id at
613 After suggesting approval of such an approach the
Court said (at 614-615)
The only effect of our holding here is to approve
the Board s use of the bargaining order in less ex
traordinary cases marked by less pervasive practices
which nonetheless still have the tendency to under
mine majority strength and impede the election
processes The Board s authority to issue such an
order on a lesser showing of employer misconduct
is appropriate we should re emphasize, where there
is also a showing that at one point the union had a
majority, in such a case of course effectuating as
certainable employee free choice becomes as impor
tant a goal as deterring employer misbehavior In
fashioning a remedy in the exercise of its discretion,
then, the Board can properly take into consideration
the extensiveness of an employers unfair practices
in terms of their past effect on election conditions
and the likelihood of their recurrence in the future
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair elec
tion (or a fair rerun) by the use of traditional reme
dies, though present, is slight and that employee
sentiment once expressed through cards would, on
balance, be better protected by a bargaining order,
then such an order should issue (see n 32, supra)
This paragraph has come to be known as the Gissel
second category or category two (e g , Bridgeway
Oldsmobile 281 NLRB 1246 (1986) In the underlying
case, the Board expressed its opinion that Respondent's
unfair labor practices fall into at least the second catego
ry " 285 NLRB at 6 The parenthetical reference by the
Court to its footnote 32 was evidently intended to stress
the understanding there expressed that such determina
Lions are normally to be the exclusive province of the
Board, the footnote reads
IMPACT INDUSTRIES 799
The employers argue that the Fourth Circuit cor
rectly observed that, in the great majority of cases,
a cease and desist order with the posting of appro
priate notices will eliminate any undue influences
upon employees voting in the security of anonymi
ty NLRB v Logan Packing Co, 386 F 2d at 570
It is for the Board and not the courts, however, to
make that determination, based on its expert esti
mate as to the effects on the election process of
unfair labor practices of varying intensity In fash
ioning its remedies under the broad provisions of §
10(c)) of the Act (29 US C § 160(c)), the Board
draws on a fund of knowledge and expertise all its
own and its choice of remedy must therefore be
given special respect by reviewing courts See Fi
breboard Paper Products Corp v NL R B, 379 U S
203 (1964) [I]t is usually better to minimize the
opportunity for reviewing courts to substitute their
discretion for that of the agency Consolo v FMC,
383 U S 607 621 (1966)
The third category, the Court ruled, consists of
Minor or less extensive unfair labor practices,
which, because of their minimal impact on the elec
tion machinery, will not sustain a bargaining order
There is, the Board says, no per ye rule that the
commission of any unfair practice will automatically
result in a § 8(a)(5) violation and the issuance of an
order to bargain [Id at 615 ]
IV THE BOARD S PRECEDENTS AND THE COURT OF
APPEALS DECISION
It may be worth noting that the refusal by the adminis
trative law judge and the Board during the pendency of
the case to permit Respondent to introduce evidence of
employee turnover was consistent with the Board s well
entrenched rule that turnover is not to be deemed rele
vant in a Gissel case, not only because it may entice
errant employers into drawing out a proceeding in order
to take advantage of a contrary rule, but presumably also
because of the Board s assumption that new employees
support a union in the same proportion as did former em
ployees Highland Plastics 256 NLRB 146, 147 (1981)
Martin City Ready Mix 264 NLRB 450 452 (1982) Alex
ander Linn Hospital Assn, 288 NLRB 103 (1988) 4
Although several court cases have rejected the Board s
view e g, NLRB v J Coty Messenger Service, 763 F 2d
92 100-101 (2d Cir 1985) some courts of appeals have
agreed with the Board that turnover is irrelevant in con
sidering a Gissel remedy E g, NLRB v L B Foster Co,
418 F 2d 1, 5 (9th Cir 1962), G P D Inc v NLRB, 430
F 2d 963, 964 (6th Cir 1970) The Seventh Circuit has
held in at least five Gissel type cases that a bargaining
order may be enforced despite substantial changes in
the situation occurring after the election " NLRB v Big
* There is to my knowledge no statistical basis for this latter assump
tion It appears to be a policy choice the Board has made over the years
to encourage stability in labor management rela ionships a choice adopt
ed with implicit recognition of the fact that if employees become dissatis
fled with union representation 30 percent of them can sign cards which
will require the holding of a decertification election
Ben Shoe Store 440 F 2d 347 353 (1971) (If any party
should be penalized for the delay, it should be the em
ployer, since his misconduct occasioned the proceed
ing ), NLRB v Drives Inc, 440 F 2d 354, 366-367
(1971), New Alaska Development Corp v NLRB, 441
F 2d 491, 493 (1971) NLRB v Henry Colder Co, 447
F 2d 629, 630 (1971) But see NLRB v Western Tempo
rary Services, 821 F 2d 1258, 1270 (1987), which, while
drawing a distinction between turnover in card cases and
election cases, does not refer to the earlier body of law
although it was adhered to by the Seventh Circuit at
least as late as Justak Bros & Co v NLRB, 664 F 2d
1074, 1082 (1981), a case which was cited in both West
ern Temporary Services, supra at 1267, and in the instant
case (847 F 2d at 382)
The turnover contention was seemingly rejected forty
four years ago in Franks Bros Co v NLRB supra, 321
U S 702, in which the union had secured 45 card desig
nations in a unit of 80 employees demanded and was re
fused recognition, filed an election petition, and, after the
employer had committed serious unfair labor practices,
withdrew the petition and filed charges The Board re
fused to attach significance to the fact that prior to issu
ance of the complaint, 13 cardsigners had been replaced
by new employees in the normal course of business, thus
leaving the union with less than a majority of card
signers The Supreme Court found reasonable the
Board's decision to order the employer to bargain with
the union rather than order elections upon every claim
that a shift in union membership had occurred during
proceedings occasioned by an employers wrongful refus
al to bargain Id at 705 Although the employer
in Franks Bros had refused to bargain with the union
and an election had never been held the Court fit the
case into the rubric of "a bargaining relationship once
rightfully established must be permitted to exist and
function for a reasonable period in which it can be given
a fair chance to succeed Id at 705
Turnover is an unpredictable-but omnipresent-fea
ture of any case in which the Gissel issue arises In the
four cases consolidated in Gissel all the unionization of
forts and unfair labor practices occurred somewhere be
tween 3 1/2 and 5 years preceding the Court s decision
and there surely was healthy turnover during that period
in at least some of the cases The Court however, did
not address any such question specifically but seemed to
have done so broadly (as quoted supra, citing (Franks
Bros and Katz)
My own long experience in this field tells me that it is
not at all uncommon for a work force to change identity
by one half or better within 2 or 3 years, the period of
time which with luck, a Gissel case can go from union
campaign to court enforcement Routine adoption of a
rule requiring cognizance of the happenstance of turnov
er as a potentially controlling factor in determining via
bility of a bargaining order could require repeated hear
ings the basic unfair labor practice proceeding the hear
ing on the motion filed with the administrative law judge
to reopen the record based on turnover after the unfair
labor practice hearing, the hearing on the motion filed
with the Board after issuance of the administrative law
800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
judges decision for the purpose of demonstrating adds
tional turnover, the motions to reopen filed after the
Board s decision and before the court s decision, etc
The circuit court in the present case, however, clearly
adopts the position that turnover, together with the other
circumstances present in this case should be considered
as bearing on the propriety of the bargaining order
Indeed, some of the courts language may be said to
thrust sharply in the direction of excising the bargaining
order remedy, should the Respondent make out the facts
which its motions have alleged The court states (at 383
emphasis added)
Thus, the Board , in issuing the bargaining order, did
not consider that virtually all the employees,
present at the time Impact engaged in the illegal ac
tivities, were gone As Impact correctly points out,
any taint caused by its past activities would have
been substantially dispelled by such a turnover In ad
dition, Impact attempted unsuccessfully, to present
evidence that it is no longer under the same man
agement as it was at the time of the first election
The original co owners of Impact in charge at the
time of the first election, have died Impact attempt
ed to present evidence to the Board that it is pres
ently administered by trustees who are unrelated to
the original owners The only individual related to
an original owner and still working at Impact is not
involved in Impact s management For this reason
as well, Impact pointed out that it did not appear
that the outcome of a second election was preor
darned and that a bargaining order was necessary
Finally over seven years passed between the time
of the first election and the final decision of the
Board This passage of time, coupled with the
change in circumstances at the plant would seem
ingly present a strong case in support of Impact s
argument that a second representation election
should be conducted to permit the new work force
at Impact to determine whether it wants to bargain
with the UAW If a fair and impartial election
can be conducted, a likely event in light of the high
turnover in both the work force and management a
bargaining order is unnecessary
It does not appear, however, that the court was in
structing the Board to delete the recognition requirement
should the facts prove out as Respondent had alleged
[S]eemingly present a strong case does not mean con
clusively establish a strong case While holding that
[t]o grant a bargaining order in any instance other than
in the last resort (when other traditional remedies are
available) constitutes an abuse of the Board s discretion
the Court nonetheless went on to say (ibid )
At a minimum , the Board should have considered
all the relevant evidence before determining that a
bargaining order was warranted This it failed to do
and for that reason we must remand
V DISCUSSION
Having considered the new evidence together with the
old, I believe that a bargaining order remedy is appropri
ate here
The misconduct previously found by the Board and of
firmed by the Seventh Circuit was characterized by the
Board (whose judgment in these matters, the Supreme
Court said in Gissel, must be given special respect
by reviewing courts 395 U S at 612 fn 32) as at least
falling in the second Gissel category In my view the
Respondents behavior-particularly the discharges and
the instigation after the election of an INS investigation
of its Mexican employees, a prime source of union sup
port, by an employer who had been hiring Mexican na
tives for 9 years thus endangering not only their imme
diate livelihood, but also perhaps their very opportunity
to again be gainfully employed-approached I think the
outrageous and pervasive first category standard
Although the Seventh Circuit opined that any taint
caused by [Respondent s] past activities would have been
dispelled' by the substantial turnover the court was not
of course, aware that principal union adherent Irene Ruiz
was, only by virtue of the court s affirmance of the vio
lations being reinstated to her job just slightly more than
8 years after her discriminatory separation The message
conveyed by the court forced return of Irene Ruiz is a
dramatic and telling one to Respondents employees The
fact that about 90 percent of the employees were not em
ployed at the time of the 1980 events does not seem to
be nearly as significant, with respect to the capability of
traditional remedies to produce a fair second election, as
does the fact that 31 employees who were at the plant in
1980 are still there, are being inevitably reminded by the
return of Irene Ruiz (if reminder was necessary) of the
events of 1980 and of the fact that 8 years had to pass
before she was able to return and are very likely ac
quainting new employees with the details of the fate of
Ruiz of that of her fellow partisan Pam Fruit (who has
not returned ), and of the meat axe wielded against 11
members of the Mexican (and union supporting) compo
nent of the work force in 1980 The stirring of memories
provoked by a new election and even by the posting of
the WE WILL NOT notices cannot help but disturb
and frighten employees in this case the extraordinary
delay works against the erasure of taint rather than in its
favor
In the ordinary case, the customary Board notices
posted reasonably soon after the occurrence of the viola
tions may operate to allay employees fears about sup
porting a union in a second election But the employee
who sees that 8 years have passed since the Respondent
committed enough violations to fill 2 1/2 pages of notice
posters and has only now been brought to book, who
sees Irene Ruiz wait for 8 years to recapture her job and
reads that others are perhaps finally entitled to theirs, is
not likely to be converted instanter into a union adher
ent
There are two separate employee reactions to be con
sidered here One is whether the 1980 unfair labor prac
tices may affect votes to be cast in (perhaps) 1989 This
is the kind of speculation in which the Board has in
IMPACT INDUSTRIES 801
dulged for more than 50 years in determining whether
improper conduct affected the results of an election so as
to warrant setting it aside My personal postulate is that
the normal employee, hearing of and reading about the
nature of Respondents reaction to the union campaign in
1980 particularly the conduct in which it engaged even
after the election which the Union lost is apt to think
that voting in favor of the Union would be at least as
risky a business for the employees if the Union should
win
A second, and perhaps equally important factor re
lates to employee willingness to help organize support for
the Union in an election an activity of crucial impor
tance to the Unions success at the ballot box Seeing
Irene Ruiz return from exile after 8 years, seeing posted
on bulletin boards the names of people who did not
return or may do so even later, remembering the old sto
ries again or hearing or reading about them for the first
time, how many of the 25 or more veteran unit employ
ees or the new employees who might otherwise have
done so will be agreeable to pull a laboring oar on the
Union s behalf Perhaps some, not nearly as many, I
would venture to say, as would have if Respondent had
not violated the law in 1980
Thus, it is difficult to conclude that the taint ever dis
appeared, and it likely has come roaring back in living
color and Dolby sound with the reappearance of Irene
Ruiz, and the court s decision and the posting of the no
tices, and the hubbub which, it may fairly be assumed,
surrounds these events But, Respondent argues, the
changes in ownership and supervision would leave the
senior employees and the new ones who learn from
them the history of 1980, with a different view of man
agement and its proclivities
There is, of course no way to know for certain the
answer to that assertion The new president Keith Berk
bout, seemed to be a decent (and, in his words, laid
back ) man, but, as earlier noted, his testimony did not
reiterate the sort of ringing affirmation found in his affi
davit regarding the effort he would make to assure a fair
second election The law firm which guided Respondent
through the first campaign and the unfair labor practice
hearing still represents it Carl Becker the `dominant
force' in 1980 is gone but his son Keith still works at
the plant and has recently been promoted to the post of
secondaries, or machining department, manager As
such Keith reports directly to the plant manager, and
has the authority to evaluate, discipline and discharge
employees Keith Becker initiated a confrontation in the
parking lot with handbilling employee Pam Fruit (later
unlawfully terminated) shortly before the 1980 election,
when Becker asked Fruit to leave the premises and she
asserted her rights, he `stormed off really upset '
Judge Bernard found this conduct to be part of a larger
pattern of giving the impression of surveillance in viola
tion of Section 8(a)(1) (285 NLRB 5 20 )5
Also still active at the plant is Larry Brock In 1980,
he was second shift foreman in the diecasting depart
ment, he is now general foreman of that department,
having authority over 60-70 employees 6 Judge Bernard
concluded that in early July, two months after the elec
tion, Brock threatened an employee with discharge if he
talked to employees about the Union," thereby violating
Section 8(a)(1) (and also found that Brock s testimony
was beyond belief) Id at 22 Brock was not dis
charged after Judge Bernard s decision issued in March
1982, either for his misconduct or for lying about that
misconduct (nor, indeed was any other supervisor who
was found by Judge Bernard to have participated in
unfair practices) Instead, according to an attachment to
Berkhout s affidavit, Brock was fired on July 15, 1982,
for performance problems, and was rehired in August
1986 He now occupies a prominent position in the plant
There is nothing in evidence to demonstrate that Re
spondent has communicated to employees, or intends to
so communicate, a commitment to mending its ways in
the event of a second election The record is silent as to
the extent of employee knowledge with respect to the
present ownership status In the absence of any evidence,
it is reasonable to believe that the employees assume that
Carl Becker s ownership interest was bequeathed to heirs
who share his values, and that the basic attitude of Re
spondent toward unionism remains the same as in 1980
Although an effort is being made to sell the plant, it
seems reasonable to assume (1) that a nonunionized oper
ation will realize a greater sales puce than one which is
organized, and (2) for that reason, Keith Becker as an
heir to the estate , has an interest in keeping the employ
ees unrepresented
As set out above in Gissel the Supreme Court held,
If the Board finds that the possibility of erasing the of
fects of past practices and of ensuring a fair election (or
a fair rerun) by the use of traditional remedies, though
present, is slight and that employee sentiment once ex
pressed through cards would, on balance be better pro
tected by a bargaining order, then such an order should
issue The preceding discussion suggests that one of the
so called traditional remedies the posting of notices
may sometimes be counterproductive, by refreshing
memories for old employees and imparting information
to new ones In the present circumstances that is a possi
ble result of the posting of notices in this aged case, al
though the likelihood is that the 1980 employees still
working at the plant and the returning Irene Ruiz, will
be the primary source of the data But the Fifth Circuit
has gone further it observed in Bandag Inc v NLRB,
583 F 2d 765, 772 (5th Cir 1978), Practices may live on
in the lore of the shop and continue to repress employee
sentiment long after most , or even all original partici
pants have departed The Board is not compelled to infer
that past practices have attenuated, especially practices
5 Although Respondent told the court (in the words of the latter)
The only individual related to an original owner and still working at
Impact is not involved in Impact s management (which was apparently
true at the time of the appeal) Respondent changed Keith Becker s
Status as indicated above a month or two poor to the instant hearing
The change was evidently made with indifference to the fact that the
court had attached some significance to Keith Becker s noninvolvement
in management
6 Respondent s brief and R Exh 4 shows that Brock was also the gen
eral foreman in 1980 Judge Bernard found however that in 1980 Brock
was only the second shift foreman and President Berkhout confirmed
that fact at the present hearing
802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
striking directly at the heart of the security of the em
ployees
It would seem that in the instant case , unlike the run
of the mill Gissel proceeding , the effects of past prac
tices are more likely revived than "erased ' by use of
the Board s traditional remedies Gissel, supra The Court
further decreed in Gissel that the Board is to make its de
termination based on its expert estimate as to the effects
on the election process of unfair labor practices of vary
mg intensity 395 U S at 612 fn 32 The discharge of 13
employees , constituting 11 percent of the work force in
1980, certainly can be considered to be unfair labor prac
tices of the most shocking intensity , and the shock value
occasioned by the retelling of their story which would
undoubtedly accompany a new election would not, in
my view , be dulled by the fact that 8 or 9 years have
elapsed or that Carl Becker is gone
The element of "delay," as such, does not appear to be
an independently meaningful factor It seems improbable
that , for those persons still employed since 1980, there
will be any serious dimming of memory regarding the
unfair labor practices which were truly significant-and,
as described , all of Respondent 's previous delicts will be
paraded before the employees , old and new, on the 2 1/2
pages of posted notices The delay naturally contributed
to the factor of turnover , but it played no separable role
The court of appeals has directed the Board to assess
the effect of employee turnover , management changes,
and delay on the propriety of a bargaining order in this
case, and I have attempted to do so above For the rea
sons there given , it is my opinion that the possibility
of ensuring a fair election by the use of trade
tional remedies is slight , 395 U S at 614, and that
the bargaining order entered in the Board 's original De
cision and Order is an appropriate remedy
[Recommended Orded omitted from publication ]