Medline Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1979

242 N.L.R.B. 1015 (N.L.R.B. 1979)

MI)IDINI IND)tSI RILS. INC
Medline Industries, Inc. and Warehouse, Mail Order,
Technical & Professional mployees Union, lxcal
743, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Petitioner. ('ase 13 R(' 13712
June 12, 1979
SUIPPLEIMENTAI. DI)E'ISION, ORI)ER AND
DIREC('TION Ol S(')ONI) ELE('TION
B\ ('II1AIRM AN ANNIN(i AND) NitlMBEI RS J NKINS
ANI Mt RI'IIY
On November 18. 1977. the National l.abor Rela-
tions Board issued a Decision and Order' finding, in-
ter alia, that Respondent had violated Section 8(a)( 11
of the National ahor Relations Act, as amended. hby
coercively interrogating employees. b broadl pro-
scribing talk about a union or soiicitation for a union
by employees during nonworking times on compan\
premises, by inducing an employee to withdraw un-
fair labor practice charges filed against Respondent,
and by threatening plant closure if the employees se-
lected the Union as their collective-bargaining repre-
sentative. The Board also found that Respondent vio-
lated Section 8(a)(3) and ( I ) of the Act by discharging
employees Mark Jamison, Mark Keaney. Douglas
Kline, Donald Holland, John Chorba. Gregory Fair.
Daniel Weckler, John Ford. Jr.. for their union ac-
tivity. The Board also found that these violations,
which were also alleged as objectionable conduct to
the election held on June 23, 1974, in the instant case.
warranted setting that election aside. The Board de-
termined however, that a bargaining order was nec-
essary to protect the employees' rights and to remedy
Respondent's unlawful conduct. Accordingly, the
Board issued a bargaining order as part of the remedy
for the unfair labor practices found2 and ordered that
the election be set aside and the petition dismissed.
Thereafter, upon a petition for review and cross-
application for enforcement, the United States Court
of Appeals for the Seventh Circuit, on February 26,
1979, granted enforcement of the Board's Order only
with respect to the 8(a)( I) and (3) findings.3 The court
concluded that the Union did not have signed autho-
rization cards from a majority of the employees in the
stipulated unit on either May 15 or 19 and would not
enforce the Board's Gissel bargaining order4 or its
8(a)(5) finding.
1233 NLRB 627.
2 These findings were made in (Cases 13 CA 14386 and 13 (A 14497
cases which are not before us here.
Medline Industries, Inc v. L R B, 593 F d 788.
4N.L R.B. v. Gilsel Packing (C , 395 [IS 575 (1969)
B\ letter dated March 21. 1979. the Union re-
quested that the Board issue a Supplemental D)ecision
and Order directing a rerun election in C(ase 13 RC'
13712 at an appropriate time after the Regional [)i-
rector has determined that there has been compliance
wxith the Board's Order in the other respect, he
I nion noted that the Board's Order dismissing the
representation petition was based on its issuance (of a
bargaining order.
Pursuant to the provisions of( Section 3(h) of the
National l.ahor Relations Act, as amended, the Na-
tional abor Relations Board has deleated its au-
thorit i this proceeding to a three-member panel.
Inll the aforementioned D)ecision and Order, we
found the tlnion's objections to the election meritori-
ous and set aside the election. lovwever. we kfurther
found that Respondent had engaged ill conduct
wvhich warranted the issuance o(f the hargaining order.
thereby obviating the necessit\ for a second election.
('onsistent with established Board polic\' i e dis-
missed the pending representation petition upon the
issuance of the bargaining order.
Hlowever. inasmuch as the court has determined
that the bargaining order is not enforceable, it is clear
that the basis for our dismissal of the representation
petition no longer exists. ' What does remain is the
fact Respondent's conduct necessitates that the first
election he set aside which now requires that a second
election be held. While the court did not remand the
proceeding to the Board f(r the direction of a second
election.' or for any other action, we think it clear
that, in the absence of a hargaining order, but where
objections to an election are found to have merit, we
must "fulfill [our) duty of determining the choice of
the employees in a free and fair election."' Accord-
ingly, we shall order that the petition in ('ase 13 RC'
13712 he reinstated and shall direct that a second
election he conducted.'
ORDER
It is hereby ordered that the petition in Case 13
RC 13712 he, and it herehb is. reinstated.
Riiera Ilaior n ursing Inel. In, 22t) Nl RB 124. 215 (1975)
,.%e .4iska Dciehlprntii ( . Aaa tfinwirig (rpprafon. 14 NlRB
83 I(19172 where the court remanded or urther explication .of the (;uis!
hargaining order and then-Member Fanning dissented from the I)lrection of
Second Election ordered b his colleagues in lieu thereot
We xsiuld find such directlion to he inappropriate. he representation
case xis not before the court, and It is clear that the court has nlojuri diction
to rexex, the representation case at that sale ot the proeeding See Daniel
(n5r ti-,in ( mpanv. In x \ I R B. 341 f 2d 805. 808 809 4th (Cir
1965).
Derring Dnirn. (Cran (,, 225 NlRB 657 117h). n 3 a second para-
graph
See 4 aterhun C(rnnul -nrl 4tenina, Inc. 241 N RB No, 137 (1979):
Itestrimi ter (C ,,lniin, ti Ilopitiil In . 235 N RB 286 1978
242 NI.RB No. 159
101 S
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11 IS FURTHER ORDERED that Case 13-RC-13712 second election in accordance with the direction set
be. and it hereby is, remanded to the Regional Direc- forth below
(Direction of Second Election and Excelsior foot-
tor for Region 13 for the purpose of conducting a note omitted from publication.]