Mechanical Specialties Co., Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1969

179 N.L.R.B. 676 (N.L.R.B. 1969)

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mechanical Specialties Company, Inc. and
International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW and Grievance Committee, Party
of Interest
Mechanical Specialties Company, Inc. and
International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, Petitioner . Cases 31-CA-97
(formerly 21-CA-6817) and 31-RC-14 (formerly
21-RC-9528)
November 21, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On June 28, 1967, the National Labor Relations
Board issued its Decision in the above-entitled
proceeding,' finding that Respondent had engaged in
certain conduct in violation of Section 8(a)(1), (2),
(3), and (5) of the National Labor Relations Act, as
amended, and ordering Respondent to cease and
desist therefrom, and to take certain affirmative
action set forth therein. On June 16, 1969, the
Supreme Court of the United States issued its
opinion in N.L.R B. v. Gisse! Packing Company.'
Thereafter, the United States Court of Appeals for
the Ninth Circuit remanded the instant proceeding
to the Board for reconsideration of the Section
8(a)(5) finding and the bargaining order in view of
the Supreme Court's opinion. The court of appeals
enforced the Board's Order in all other respects. On
August 5, 1969, the Board informed the parties that
the Board would reconsider its 8(a)(5) finding and
the bargaining order in this case in the light of the
guidelines laid down by the Supreme Court, and
invited the parties to file statements of position.
Such a statement has been filed by the Respondent.
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 this proceeding
and, for the reasons set forth below, shall reaffirm
its original finding that Respondent violated Section
8(a)(5) and (I) of the Act by refusing to recognize
the Union as majority representative of the
employees, and that a bargaining order is necessary
to effectuate the purposes and policies of the Act in
this case.
Insofar as is relevant here, the Supreme Court in
Gissel, supra, in stating the general principles
applicable to the issuance of bargaining orders,
agreed that the Board has authority to issue a
bargaining order to redress 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]."' Additionally, 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." In the latter
situation, the Board is to examine the nature and
extent of the employer's unlawful conduct and
ascertain the likelihood that use of traditional
remedies would ensure a fair election. In applying
these general principles to the cases before it, the
Court remanded three of them to the Board for a
determination as to "[whether] even though
traditional remedies might be able to ensure a fair
election there was insufficient indication that an
election (or a rerun . . ) would definitely be a more
reliable test of the employee's desires than the card
count taken before the unfair labor practices
occurred."
In our opinion, a bargaining order is warranted
on the facts of this case under either of the above
standards. Thus, Respondent's numerous violations
of the Act included interrogations of its employees
concerning their union sympathies, threats to close
the business if the employees designated the Union
as their bargaining representative, a discriminatory
discharge, a wage increase designed to erode union
support, and interference and domination with
respect to the formation and administration of an
employee grievance committee. The Union, though
possessing valid authorization cards from a majority
of the employees, failed to receive a majority in the
election, which was subsequently set aside on the
basis of Respondent's unlawful conduct. Following
the election, and while objections were pending,
Respondent discriminatorily discharged another
active union adherent
By engaging in such conduct, Respondent
demonstrated a propensity to engage in violations of
the Act under conditions which heighten the
possibility that relief in the form of customary cease
and desist, backpay, and reinstatement provisions,
etc., will not effectuate statutory policies herein. In
these circumstances, we are satisfied that a'
bargaining order would be necessary, even in the
absence of an 8(a)(5) violation, to remedy the other
unfair labor practices in this case. Additionally, we
find that Respondent, by engaging in the foregoing
conduct and refusing to recognize the Union as
majority representative of its employees, violated
Section 8(a)(5) and (1) of the Act. The Respondent's
pattern of unlawful conduct was of such a nature as
to have a lingering effect and use of traditional
166 NLRB No 31
'395 U S 575
'/d p 615
179 NLRB No. 115
MECHANICAL SPECIALTIES CO.
remedies here is unlikely to ensure a fair or
coercion-free rerun election. We are persuaded that
the unambiguous cards validly executed by a
majority of employees in the unit represent a more
reliable measure of employee desire on the issue of
representation in this case, and that the policies of
the Act will be effectuated by the imposition of a
bargaining order. Accordingly, we shall reaffirm the
findings and remedy provided in the original
677
Decision and Order herein.4
SUPPLEMENTAL ORDER"
In view of the foregoing, and on the basis of the
record as a whole, the National Labor Relations
Board reaffirms its Order of June 28, 1967, in this
proceeding.
'General Stencils , Inc, 178 NLRB No 18, World Carpets, Inc, 176
NLRB No 138 1