United Dairy Farmers Cooperative Assn.

National Labor Relations Board - Board Decisions

Jun 12, 1979

242 N.L.R.B. 1026 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Dairy Farmers Cooperative Association and
Bruce Bach, and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Milk and Ice Cream Salesmen, Drivers
and Dairy Employees Local Union No. 205. Cases
6 CA 7135, 6-CA 7238, 6 CA 7364, and 6 RC
6682
June 12, 1979
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
On August 22, 1974, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding, finding, inter alia, that Respondent com-
mitted numerous violations of Section 8(a)(1) and (3)
of the Act. As a remedy for these violations, the Ad-
ministrative Law Judge recommended, inter alia, that
Respondent be ordered to bargain with the Union,
notwithstanding the fact that there was no evidence
in the record that the Union had previously enjoyed
majority support among the unit employees. With re-
spect to the representation case, the Administrative
Law Judge found merit in the Petitioner's objections
to the Board-conducted election held on January 8,
1974, and further recommended that the challenges to
the seven ballots be overruled. Thereafter, Respon-
dent and the General Counsel filed exceptions and
supporting briefs,' and the Charging Party-Petitioner
filed a brief in support of the Administrative Law
Judge's Decision.
The Board considered the record in light of the
exceptions and briefs, and, on April 17, 1975, issued a
Decision and Direction2 wherein it, inter alia, af-
firmed the Administrative Law Judge's rulings, find-
ings, and conclusions with respect to the unfair labor
practices alleged and also adopted his recommenda-
tions with respect to the disposition of the challenged
ballots. However, the Board specifically deferred con-
sideration of the appropriate remedy and the objec-
tions to the election until such time as the Regional
Director opened the challenged ballots, since the elec-
tion results shown by the revised tally might make it
unnecessary to reach the question of whether to issue
a bargaining order. Accordingly, the Board directed
the Regional Director to open and count the ballots
of the seven individuals, to serve on the parties and
the Board a revised tally of the ballots, and thereafter
I On December 10, 1976. the General Counsel filed a motion requesting
leave to withdraw a portion of his exceptions previously filed herein. Specif-
ically, the General Counsel seeks to withdraw that portion of his limited
exceptions which opposed the Administrative Law Judge's recommendations
that a remedial bargaining order issue. No opposition to that motion has
been received, and the motion is hereby granted.
2 Not printed in the bound volumes of' NIRB Decisions. The pertinent
portions of that decision are attached hereto as Appendix B.
to transfer the proceedings back to the Board for its
consideration of the Administrative Law Judge's rem-
edy in light of the final revised tally.
On April 25, 1975, the challenged ballots were
opened and counted and a revised tally of ballots was
served on the parties. The revised tally indicated 12
votes in favor of representation by Petitioner and 14
votes against representation. On May 6, 1975, the Re-
gional Director transferred the proceedings back to
the Board with a copy of the revised tally of ballots.
Accordingly, in view of the fact that the revised tally
indicates that the Union has lost the election, the
Board must now decide whether a bargaining order
should issue here as proposed by the Administrative
Law Judge. Resolution of that issue presents two
questions for consideration: (1) whether the Board's
remedial powers encompass the authority to issue a
bargaining order in the absence of a prior showing of
majority support by the Union, and (2) if so, whether
it will effectuate the policies of the Act to issue such
an order.
The use of bargaining orders to remedy an employ-
er's unfair labor practices committed in the context of
a union's organizational campaign was considered by
the Supreme Court in N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575 (1969). Prior to its determination of
the appropriateness of the bargaining orders issued
by the Board in the cases before it, the Court therein
defined three categories of fact situations for purpose
of analysis. As the Administrative Law Judge cor-
rectly found, the violations herein fall within the first
category delineated by the Court in Gissel. In setting
forth the nature of category one, the Court, citing the
Fourth Circuit's decision in N.L.R.B. v. S.S. Logan
Packing Companv,3 stated at 395 U.S. 575, 613-614:
While refusing to validate the general use of a
bargaining order in reliance on cards, the Fourth
Circuit nevertheless left open the possibility of
imposing a bargaining order, without need of in-
quiry into majority status on the basis of cards or
otherwise, in "exceptional" cases marked by
"outrageous" and "pervasive" unfair labor prac-
tices. Such an order would be an appropriate
remedy for those practices, the court noted, if
they are of "such a nature that their coercive
effects cannot be eliminated by the application of
traditional remedies, with the result that a fair
and reliable election cannot be had." N.L. R.B. v.
386 F.2d 562 (4th ('ir. 1967). enfg. 152 NLRB 421 (1965). The second
category covers "less extraordinary cases . hich nonetheless still have the
tendency to undermine majority strength and impede the election prwocesses-
and, in those cases, th (Court indicated that there must be "a showing that at
one point the union had a majority" (395 .S. at 614) 'Ihe third category
delineated by the Court covered "minor or less extensive unfair labor prac-
tices, which, because of their minimal impact on the election machinery. ill
not sustain a bargaining order" (395 S. at 615).
242 NLRB No. 179
1026
UNITED DAIRY FARMERS COOPERATIVE ASSN.
Logan Packing Co., 386 F.2d 562, 570 (C.A.4,
1967); see also N.L.R.B. v. Heck's, Inc., 398 F.2d
337, 338. The Board itself, we should add, has
long had a similar policy of issuing a bargaining
order, in the absence of a §8(a)(5) violation or
even a bargaining demand, when that was the
only available, effective remedy for substantial
unfair labor practices. See, e.g., United Steel-
iworkers of/ America v. N.L.R.B., 376 F.2d 770
(C.A.D.C., 1967); i.C. Penney Co., Inc. v.
N.L. R.B., 384 F.2d 479, 485 486 (C.A. 10, 1967).
Although the precise holding of the Court in Gissel
was to approve the Board's use of bargaining orders
where an employer's unfair labor practices have dissi-
pated the union's majority and impeded the election
processes (395 U.S. at 614-615), the essence of the
Court's consideration was the scope of the Board's
remedial authority.4 By setting forth the authority of
the Board to give bargaining orders in cases where
the unfair labor practices were "less pervasive" than
in the first or extreme situation but "nonetheless still"
had the "tendency to undermine majority strength
and impede the election processes," the Court indi-
cated that the scope of the Board's remedial authority
is broad (395 U.S. at 614). And, as noted above, the
Court referred to the Fourth Circuit's conclusion that
a bargaining order may well constitute an appropri-
ate remedy for employer unfair labor practices with-
out need of inquiry into majority status where the
damage caused to the election process thereby is oth-
erwise irreparable.
That the Board may also have the remedial author-
ity to impose a bargaining order in the absence of a
prior showing of majority support by the union is fur-
ther indicated by the Board's special responsibility to
devise suitable remedies to effectuate the Act's poli-
cies and the broad discretion, vital to the administra-
tion of that responsibility, which the Act accords.
Thus, in discussing the Board's remedial authority
under Section 10(c) of the Act, the Supreme Court, in
Fibreboard Paper Products Corp. v. N.L.R.B. 379 U.S.
203, 216 (1964), stated:
[Section 10(c) of the Act] "charges the Board
with the task of devising remedies to effectuate
the policies of the Act. Labor Board v. Seven-Up
Bottling Co., 344 U.S. 344, 346. The Board's
power is a broad discretionary one, subject to
limited judicial review. Ibid. "[T]he relation of'
remedy to policy is peculiarly a matter for ad-
ministrative competence ... " Phelps Dodge Corp.
v. Labor Board, 313 U.S. 177, 194. "In fashioning
remedies to undo the effects of violations of the
Act, the Board must draw on enlightenment
4Beasle Enc F. n Inc, d/h/a Peaker Run Ckal (omrpurn. Ohio Division
1, 228 N.RB 93 (1977).
gained from experience." Labor Board v. Seven-
Up Bottling Co., 344 U.S. 344, 346. The Board's
order will not be disturbed "unless it can be
shown that the order is a patent attempt to
achieve ends other than those which can fairly be
said to effectuate the policies of the Act." Vir-
ginia Elec. & Power Co. v. Labor Board, 319 U.S.
533, 540.
In sum, upon careful consideration of the policies
contained in the Act, the special responsibility of the
Board to formulate remedies which further those poli-
cies, and the proper scope of the Board's remedial
powers, we find that the Board's remedial authority
under Section 10(c) of the Act may well encompass
the authority to issue a bargaining order in the ab-
sence of a prior showing of majority support.'
We turn next to a consideration of whether, in the
exercise of our discretion, such a remedy should be
granted. 6
Section 7 of the Act guarantees to employees the
right to bargain collectively through representatives
of their own choosing or to refrain from such activity.
Section 9(a) provides that "(r)epresentatives desig-
nated or selected ... by the majority of the employees
in a unit shall be the exclusive representative of all
the employees in such unit for the purposes of collec-
tive bargaining." These sections of the Act embody a
fundamental principle around which the Act is con-
structed: that a union's status as collective-bargaining
representative is dependent on its designation by ma-
jority rule exercised in a free and uncoerced manner.
In furtherance of this principle, the preferred
method of determining employee choice for or
against union representation is by means of a secret-
ballot election. 7 However, as noted supra. where an
employer's unfair labor practices occur during the
course of a union organizational campaign, the Board
and the courts have long recognized that the ability of
employees to freely exercise their Section 7 rights in
an election is adversely affected. 8 In such cases, the
Chairman Fanning and Member Jenkins misstate our position when the
assert that we agree with their view that the Board has the authority to issue
a bargaining order even though the union has never demonstrated majority
status. Our conclusion is limited to a finding that the Board "may" ha'e such
authority.
I Member Penello's criticism of our opinion constitutes an asily recogniz-
able distortion of our position Accordingly) we do not consider that such
comments warrant a reply, other than to note that we are refusing to issue a
bargaining order in this case although we are finding here that Respondent's
unfair labor practices are so "outrageous" and "pervasive" as to warrant the
full measure of our remedial authority commensurate with the principle of
majority rule.
'See. e.g.. Aaron Brothers (onmpan t f Cal,rni, 158 NlRB 1077. 1078
(1967) N I..R B v. Gisrel Packing Coi, Inc, supra,. 395 1 S at 602 See also
Inden I.umber Dvision. Summer & Co v h.Al.R BA, 419 t S 301 (1974).
wherein the Supreme Court held that in the absence of unfair labor practices
an emploer need not bargain until an election has demonstr.ted that a
union has majority status
I Franks Rros Companv N'I.R B, 321 I.S 702 (1944): A I. R.B v
(;it\l Pacing t( ,, upra
1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board seeks to balance the policy in favor of enabling
employees to freely exercise the right to choose
whether they desire to be represented by the union
via an election against the damage to the election pro-
cess caused by the employer's unfair labor practices.
Where a majority of the employees have indicated
their support for the union by cards and an employ-
er's unfair labor practices have precluded the holding
of a fair election, the Board has traditionally bal-
anced those interests in favor of the issuance of a
bargaining order as The Remedy best suited to restor-
ing the status quo ante consistent with the policies of
the Act.9 Thus, a bargaining order not only eliminates
the damage to the election process but, in addition,
restores the prior expression of employee support for
the union consistent with the principle of majority
rule.
Our dissenting colleagues suggest that it is, per-
haps, unwise for the Board ever to rely on authoriza-
tion cards, even where a majority of employees have
signed such cards. We reject this suggestion. Such a
bargaining order, based on evidence of majority sup-
port, has its basis in an affirmative expression of sup-
port at some time by the affected employees. We do
not inquire into the subjective motivations of employ-
ees in signing cards, any more than we inquire into
their reasons for voting for or against a union. Nor do
we engage in a continuous inquiry into the extent of
support enjoyed by a union during the year following
certification or during the term of a contract, for such
an inquiry would undermine the stability of labor re-
lations contrary to the dictates of the Act. But we do
not ignore an expression of majority support when
there can be no more current expression of employ-
ees' desires because of fear and coercion brought
about by unlawful conduct on the part of an em-
ployer. Our dissenting colleagues assert that the
Board departs from the principle of majority rule
whenever it issues a bargaining order after a union
which bases its claim of majority status on signed au-
thorization cards has lost an election. We are, quite
frankly, puzzled by this assertion. The cards tend to
demonstrate that the union had a majority and lost
that majority only as a result of the employer's coer-
cion. In these circumstances, the Board has objective
evidence that an uncoerced majority favors the union.
It is that evidence of uncoerced majority upon which
the Board relies in granting its bargaining order.
A different question arises, however, where the
union has never obtained a showing of majority sup-
port and an employer's unfair labor practices have
precluded the holding of a fair election. The imposi-
'See, e.g., Franks Bros. Co. v. N. LR.B., supra; N.LR.B. v. Delight Bakery,
Inc., 353 F.2d 344 (6th Cir. 1965); American Map Company, Inc., 219 NLRB
1174 (1975); Beasley Energy, Inc., supra.
tion of a bargaining order in such cases does not re-
store the status quo-that is, an expression of major-
ity support for the union-because there was no
majority support, and there is no assurance that a
majority of employees would have supported the
union had the employer refrained from engaging in
unfair labor practices. A bargaining order in these
circumstances presents a substantial risk of imposing
a union on nonconsenting employees and could only
be justified if it served a substantial remedial inter-
est. l0
In devising appropriate remedies for unfair labor
practices, we are mindful of the countervailing inter-
est in preserving the principle of employee choice by
majority rule. It is true that Respondent's unfair labor
practices have precluded the holding of an unencum-
bered election. However, on the facts in this case we
are persuaded that, in the absence of a prior showing
by the Union of majority support at some point in the
proceeding, it is less destructive of the Act's purposes
to provide a secret-ballot election whereby the em-
ployees are enabled to exercise their choice for or
against union representation than it is to risk negating
that choice altogether by imposing a bargaining rep-
resentative upon employees without some history of
majority support for the Union." Therefore, in the
exercise of our discretion under the Act, we decline to
issue a bargaining order where the union has at no
time obtained a showing of majority support; we
shall instead focus on the use of our remedial author-
ity to devise remedies, including extraordinary rem-
edies which, although perhaps not sufficient to eradi-
cate totally the effects of the unfair labor practices,
will tend to restore an atmosphere in which employ-
ees are given a meaningful opportunity to exercise
their Section 7 rights in an election.
Accordingly, we have decided not to issue a bar-
gaining order in the instant case inasmuch as there is
no showing that the Union here previously enjoyed
majority support in the unit, but we shall instead set
aside the election held on January 8, 1974, and in-
struct the Regional Director to conduct a new elec-
tion at a time that he deems appropriate.
We have found that Respondent here engaged in
extensive unfair labor practices in the period from
November 1973 to April 1974 by numerous threats of
plant closure and threats to reopen "under a different
10 Chairman Fanning and Member Jenkins state that our view is equiv-
alent to a determination that here a majority of the employees oppose the
Union. That is simply not the case. There is no way of knowing how a
majority of the employees feel about the Union. The most that can be said is
that at no time has a majority of the employees indicated that they supported
the Union.
" As experience ictates, we will continue to balance these competing
interests. It may be that in some case the facts will show that the atmosphere
has become so poisoned as to preclude any reasonable likelihood of ever
holding an election in which we can place any confidence, even if extraor-
dinary remedies were employed.
1028
UNITED DAIRY FARMERS COOPERATIVE ASSN.
name," numerous acts of coercive interrogation, and
granting of unprecedented cash bonuses for the pur-
pose of deterring employees from supporting the
Union, all in violation of Section 8(a)(l) of the Act;
and by obstensibly converting the bulk of its employ-
ees to independent contractor status and by discharg-
ing seven employees, in violation of Section 8(a)(3) of
the Act. In addition, Respondent has previously been
found in violation of the same sections of the Act.'2
As recommended by the Administrative Law Judge.
we shall order that Respondent cease and desist from
its unlawful conduct and, affirmatively, that Respon-
dent reinstate the employees it unlawfully discharged,
restore the status quo ante by canceling the paper
structure of corporate enterprise and contractual ar-
rangement whereby drivers were ostensibly converted
into independent contractors, and make whole its em-
ployees for losses occasioned by Respondent's unlaw-
ful conduct.
We recognize, however, that Respondent's unfair
labor practices are, in the circumstances of this case,
so "outrageous" and "pervasive" that these conven-
tional remedies will not suffice to dissipate them and
are inadequate to give Respondent's employees suffi-
ciently explicit reassurances and understanding of
their rights under the Act. We turn, therefore, to a
consideration of what additional remedies are avail-
able to dissipate the lingering coercive effects created
by Respondent's unfair labor practices and to aid in
creating an atmosphere free of restraint and coercion
so that we will be able to conduct a new election in
which we can place some confidence.
Respondent's unfair labor practices tend to restrain
employees in the exercise of their Section 7 rights
long after the violations have occurred and thus ren-
der impossible a fair election. In order to dissipate as
much as possible the lingering atmosphere of fear and
coercion created by these unfair labor practices, we
shall order additional remedial action designed to ac-
complish two objectives in the restoration of em-
ployee rights. First, such remedial action must, as di-
rectly and emphatically as possible, inform employees
of their Section 7 rights and assure employees that
Respondent will respect those rights. Second, the
Union must be afforded an opportunity to participate
in this restoration and reassurance of employee rights
by engaging in further organizational efforts, if it so
chooses, in an atmosphere free of further restraint
and coercion. We find that these objectives will best
be accomplished by imposing certain extraordinary
I1 United Dairy Farmers Cooperative Association, et al., 194 NLRB 1094
(1972), enfd. per curiam 465 F.2d 1401 (3d Cir. 1972). See also United Dairy
Farmers Cooperative Association, Case 6-CA-4123, which culminated in a
formal settlement providing for a Board Order and consent Judgment of a
United States Court of Appeals.
remedies in order to counteract the effects of Respon-
dent's campaign of lawlessness.")3
Accordingly, we shall require Respondent to post
copies of the attached notice marked "Appendix A"
in its Pittsburgh, Pennsylvania, facility, include it in
appropriate company publications, and mail it to
each and every employee of its Pittsburgh, Pennsylva-
nia, plant, including, but not limited to, all employees
on the payroll at the time the unfair labor practices
were committed. All such notices, both mailed and
posted, shall be signed personally by Respondent's
president, Ernest Hayes, who shall also read the no-
tice to current employeest' assembled for that pur-
pose. Respondent shall afford the Board a reasonable
opportunity to provide for the attendance of a Board
agent at any assembly of employees called for the
purpose of reading such notices. We shall also require
that Respondent publish in local newspapers of gen-
eral circulation a copy of the above notice two times
per week for a period of 4 weeks.
In addition to the above remedies which are calcu-
lated to dissipate the effects of Respondent's prior un-
lawful conduct, we shall also order Respondent to
grant to the Union and its representatives, upon re-
quest: (1) reasonable access to its bulletin boards and
all places where notices to employees are customarily
posted; (2) reasonable access to employees in its plant
in nonwork areas during employees' nonworktime;
and (3) notice of, and equal time and facilities for the
Union to respond to, any address made by Respon-
dent to its employees on the question of union repre-
sentation. We shall also order Respondent to afford
the Union the right to deliver a 30-minute speech to
employees on working time prior to any Board elec-
tion which may be scheduled in which the Union is a
participant.s In all respects these provisions shall ap-
t3 As stated in their separate opinion herein, Chairman Fanning and
Member Jenkins agree with and adopt the remedies set forth, although they
would also grant a bargaining order under the facts of this case.
4 We recognize that certain courts have expressed disapproval of a re-
quirement that company officials read the notice themselves, regarding such
a requirement as humiliating, and have therefore required that employers be
given the option of having the notice read by a Board agent instead. See. e.g.,
Textile Workers Union of America, AFL-CIO J. P. Stevens & Co., Inc.) v.
N.LR.B., 388 F.2d 896, 903-904 (2d Cir. 1967). While, in some instances,
this alternative may suffice to overcome the effects of unfair labor practices,
we note that the cited case specifically declined to hold that a reading re-
quirement which did not give such an alternative could never be appropriate,
and we find that in this case such a requirement is appropriate. Thus, Hayes
personally announced that employees would have to become "independent
contractors" in order to continue driving for Respondent, threatened to close
the plant rather than deal with a union, and interrogated employees concern-
ing their organizational activities. As it is clear that Respondent's unlawful
campaign emanated from the top; so too must reassurances that this com-
pany campaign will end come from the top.
" Member Murphy does not agree with her colleagues that equal access is
an appropriate remedy for the Board to provide here. Accordingly. she
would not require Respondent to afford the Union with equal access to the
employees on company time. By doing so Member Murphy believes that her
colleagues are forcing Respondent not only to support the Charging Party's
campaign bit also are raising serious questions as to the validity of an)
election by limiting equal access only to the Charging Party
1029
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ply for a period of 2 years from the date of the post-
ing of the notice provided by the Order herein or until
the Regional Director shall have issued an appropri-
ate certification following a fair and free election,
whichever comes first)6 Finally, we shall order Re-
spondent to supply to the Union, upon request made
within I year of the issuance of the Order herein, the
names and addresses of its current employees.'
In our view the above remedies insure that each
employee will be made individually aware of his
statutory rights and will personally be assured by Re-
spondent's highest ranking representative that those
rights will be respected. In addition, the Union will be
afforded a substantial period of time to present its
views to employees off company premises in an atmo-
sphere relatively free of restraint and coercion, and by
requiring that the Union be given access to Respon-
dent's plant in nonwork areas during employees' non-
work time, employees will be further reassured that
Respondent will respect their Section 7 rights. Fi-
nally, by requiring Respondent to furnish the names
and addresses of all current employees, the Union
will be afforded an opportunity to present its view not
only to employees on the payroll at the time the un-
fair labor practices were committed, but to reach, in
addition, those employees who have not yet had a
chance to formulate their desires with regard to repre-
sentation but who are nonetheless affected by the lin-
gering effects of Respondent's violations.
In all other respects, we adopt the Administrative
Law Judge's recommended Order as our own except
that we shall incorporate the modifications specified
above and modify his remedy so that backpay is to be
computed as prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and interest as set forth in
Florida Steel Corporation, 231 NLRB 651 (1977).18
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
16 It is to be stressed that the access provisions herein are to remedy the
extraordinary violations committed by Respondent against its employees be-
cause they supported the Charging Party. Contrary to Member Murphy's
assertion, the Board is not thereby "forcing Respondent .. . to support the
Charging Party's campaign" but is instead permitting the employees to de-
termine whether to support-or not to support-that Union "in an atmo-
sphere free of further restraint and coercion." We find it unnecessary to
consider at this time Member Murphy's hypothetical prognosis as to what
might happen if another union intervenes in an election proceeding involving
Respondent and Charging Party.
'7 Similar remedial measures were ordered in J. P. Stevens & Companv,
Inc., 240 NLRB No. 35 (1979). See also The Loray Corporation, 184 NLRB
557, 558 (1970); J. P. Stevens & Company, Inc., 157 NLRB 869. 878 (1966),
enfd. as modified 380 F.2d 292 (2d Cir. 1967), cert. denied 389 U.S. 1005;
and H. W Elson Bottling Company, 155 NLRB 714 (1965), enfd. as modified
379 F.2d 223 (6th Cir. 1967), cert. denied 390 U.S. 904.
is See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
United Dairy Farmers Cooperative Association,
Pittsburgh, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or in any other manner discrimi-
nating against its employees because of their union
activities.
(b) Coercively interrogating employees concerning
their union activities, threatening to close its plant,
threatening to discharge employees, fostering the im-
pression that it is surveying the employees' union ac-
tivities, and granting cash gifts without precedent to
the employees.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Lawrence Dahns, Jerry Finley, Walter
Kossel, Melvin Lerch, Michael Peden, Bruce Bach,
and Larry Thomas immediate and full reinstatement
to their former positions or, if such positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed.
(b) Cancel the paper structure of corporate enter-
prise and contractual arrangement whereby the bulk
of its drivers were ostensibly converted into indepen-
dent contractors and restore all of them to direct
hourly pay employee status under which they previ-
ously worked.
(c) Make all of the foregoing employees, including
those directly discharged and the remainder whose
conditions of employment were adversely altered,
whole for any loss of pay or any benefit that they may
have suffered by reason of Respondent's discrimina-
tion against them.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Mail a copy of the attached notice marked
"Appendix A"' 9 to each and every employee at his or
her home address, post copies thereof at its plant in
19 In the event that this Order is enforced by a Judgment of a United
States court of appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
1030
UNITED DAIRY FARMERS COOPERATIVE ASSN.
Pittsburgh, Pennsylvania, and include a copy in ap-
propriate company publications. Copies of said no-
tice, on forms provided by the Regional Director for
Region 6, shall be personally signed by Respondent's
president and owner, Ernest Hayes. Copies of said
notice shall be mailed by Respondent to each and
every employee working at its plant on the date on
which such notice is mailed, as well as each and every
employee who worked in its plant during the period
of Respondent's unfair labor practices, and additional
copies shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Publish in local newspapers of general circula-
tion copies of the attached notice marked "Appendix
A." Such notice shall be published twice weekly for a
period of 4 weeks.
(g) Convene during working time all employees at
its Pittsburgh, Pennsylvania, plant, by shifts, depart-
ments, or otherwise, and have Respondent's president
and owner, Ernest Hayes, read to the assembled em-
ployees the contents of the attached notice marked
"Appendix A." The Board shall be afforded a reason-
able opportunity to provide for the attendance of a
Board agent at any assembly of employees called for
the purpose of reading such notices.
(h) Upon request of the Union made within I year
of the issuance of the Order herein, make available to
the Union without delay a list of names and addresses
of all employees at the time of the request.
(i) Immediately upon request of the Union, for a
period of 2 years from the date on which the afore-
said notice is posted, grant the Union and its repre-
sentatives reasonable access to the plant bulletin
boards and all places where notices to employees are
customarily posted.
(j) Immediately upon request of the Union, for a
period of 2 years from the date on which the afore-
said notice is posted, permit a reasonable number of
union representatives access for reasonable periods of
time to nonwork areas, including but not limited to
canteens, cafeterias, rest areas, and parking lots,
within its Pittsburgh, Pennsylvania, plant so that the
Union may present its views on unionization to the
employees, orally and in writing, in such areas during
changes of shifts, breaks, mealtimes, or other non-
work periods.
(k) In the event that during a period of 2 years
following the date on which the aforesaid notice is
posted any supervisor or agent of Respondent con-
venes any group of employees at Respondent's Pitts-
burgh, Pennsylvania, plant and addresses them on the
question of union representation, give the Union rea-
sonable notice thereof and afford two union represen-
tatives a reasonable opportunity to be present at such
speech and, upon request, give one of them equal
time and facilities to address the employees on the
question of union representation.
(I) In any election which the Board may schedule
at Respondent's Pittsburgh, Pennsylvania, plant
within a period of 2 years following the date on which
the aforesaid notice is posted in which the Union is a
participant, permit, upon request by the Union, at
least two union representatives reasonable access to
the plant and appropriate facilities to deliver a 30-
minute speech to employees on working time, the
date thereof to be not more than 10 working days, but
not less than 48 hours, prior to any such election.2 0
(m) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the election held on
January 8, 1974, in Case 6-RC-6682 be, and it
hereby is, set aside, and that Case 6-RC-6682 be, and
it hereby is, remanded to the Regional Director for
the purpose of conducting a new election.
[Direction of Second Election omitted from publi-
cation.]2 '
CHAIRMAN FANNING and MEMBER JENKINS, concur-
ring in part and dissenting in part:
We disagree with our colleagues' refusal to issue
the recommended bargaining Order which the Ad-
ministrative Law Judge concluded, and our col-
leagues concede, is the only adequate remedy for this
Respondent's flagrant and pervasive violations of the
Act.2 2 The many and serious unfair labor practices
committed by this Respondent-including numerous
threats to close and to reopen under a different name,
repeated acts of coercive interrogation, the granting
of unprecedented cash bonuses in order to deter sup-
port for the Union, the attempt to convert most of the
26 employees to independent contractors and thus to
deprive them of representational rights, and the dis-
charges of seven union adherents-occurred against a
background of Respondent's similar violations of the
Act during two previous antiunion campaigns.23 The
0 Subpars. (i), (). (k), and (1) herein shall be applicable only so long as the
Regional Director has not issued an appropnate certification following a fair
and free election.
2 Excelsior footnote omitted from publication.
22 We agree with Member Truesdale and adopt The Remedy set forth in
the opinion signed by Members Murphy and Truesdale although, as stated
herein, we would grant an additional remedy of a bargaining order.
21 See United Dairy Farmers Cooperative Association, et a, 194 NL.RB
1094 (1972), enfd. per curtam 465 F.2d 1401 (3d Cir. 1972): nited Dairy
Farmers Cooperative Association. Case 6 CA 4123. which culminated in a
court-enforced consent judgment.
In its 1972 decision the Board found that Respondent had violated Sec.
8(aX I) by threatening to discharge union supporters, b threatening to fran-
(Continued)
1031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Administrative Law Judge, after considering the na-
ture and extent of what he properly characterized as
Respondent's "outrageous" misconduct, concluded
that "the Board's conventional remedies are a mock-
ery," that "extraordinary remedies" are justified, and
that, notwithstanding the absence of proof that the
Union ever enjoyed majority status, "an affirmative
bargaining order now is an essential part of the reme-
dial order." To do less, according to the Administra-
tive Law Judge, merely "assures the Respondent of
continued enjoyment of the fruits of its repeated un-
fair labor practices." We agree.
Our colleagues acknowledge, as indeed they must,
that the Board's conventional remedies are inad-
equate to dissipate the pernicious effects of Respon-
dent's flagrant and pervasive unfair labor practices.
Their skepticism concerning the efficacy of these ad-
ditional remedies is understandable. After all, this is
Respondent's third run over the course of unlawful
conduct, and on each of the two prior occasions Re-
spondent made promises at the order of the Board
and then ignored them. Hence, there is no reason to
believe additional rhetoric or promises by this Re-
spondent will not also be ignored, nor is there reason
to believe that such rhetoric or promises will make an
uncoerced election possible. Nonetheless our col-
leagues refuse, Members Murphy and Truesdale on
policy grounds and Member Penello on statutory
grounds, to adopt the recommended bargaining order
remedy.
Member Penello asserts that the principle of major-
ity rule, embodied in various provisions of the Act,
precludes the Board from issuing a bargaining order,
absent a showing that the Union at one time com-
manded majority support. Members Murphy and
Truesdale, on the other hand, acknowledge that the
Board "may well" have authority to issue a bargain-
ing order cven absent such a showing. Balancing their
responsibility "to devise appropriate remedies to pre-
vent the commission of unfair labor practices against
the principle of employee choice by majority rule,"
they decline to issue a bargaining order, however,
based on their view that: () issuance of a bargaining
order when there has been no showing of a preexist-
ing majority involves a substantial risk of imposing a
union upon nonconsenting employees; (2) foresee-
able, serious, and lingering effects of an employer's
unfair labor practices do not justify sacrificing the
principle of majority rule; and (3) the adoption of
remedies which "will tend to restore an atmosphere in
which employees are given a meaningful opportunity
to exercise their Section 7 rights in an election," "im-
chise its stores and cause all employees to lose their jobs "if the Union got
in," and by unlawful interrogation about employee support for the Union.
and Respondent violated Sec. 8(aX
3
) by chanlging the hours of work and
discharging an employee for leading the union movement.
perfect though it may be," is preferable to issuance of
a bargaining order although the Employer's miscon-
duct has rendered impossible ascertainment of the
wishes of an uncoerced majority of employees.
We should issue a bargaining order because we
agree with Members Murphy and Truesdale that the
statute does not preclude the Board from issuing bar-
gaining orders in the absence of a prior showing of
majority support, and that the proper approach to the
problem is one of balancing the various policies and
purposes of the Act. We disagree, however, with their
conclusion that another election, rather than a bar-
gaining order, better serves the policies and purposes
of the Act because of the risk of "imposing a bargain-
ing representative upon employees without their con-
sent." We disagree because we believe that our col-
leagues have failed to recognize that when, as here, an
employer's flagrant and widespread misconduct has
so poisoned the atmosphere that it is impossible to
determine whether an uncoerced majority now sup-
ports or opposes the union, the risk of imposing mi-
nority preference is as great from withholding a reme-
dial bargaining order as from granting one. In our
view it is more consonant with the statutory policy of
employee freedom of choice to issue a bargaining or-
der in the present circumstances than to reward the
Employer's flagrant interference with employees'
statutory rights by denying the bargaining order and
thereby effectuating the objective of the Employer's
unlawful activities. This is particularly true where, as
here, the facts strongly indicate that a majority would
have voted for the Union if they had not been co-
erced by the Employer's egregious misconduct.
1. The Board has the authority to issue a
nonmajority bargaining order
Four members of the Board apparently agree that
the Board has the authority to issue such a bargaining
order, in appropriate cases, although the union has
never demonstrated majority support. The opinion of
Members Murphy and Truesdale refers to language
in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969); N.L.R.B. v. S. S. Logan Packing Company,
386 F.2d 562 (4th Cir. 1967); and Fibreboard Paper
Products Corp. v. N.L.R.B., 379 U.S. 203, 216 (1964),
in support of this conclusion. Other courts have ex-
pressed the same view.
Citing Gissel, the Fifth Circuit in J. P. Stevens &
Co., Inc., Gulistau Division v. N.L.R.B., 441 F.2d 514
(5th Cir. 1971), set forth the various circumstances in
which the Board may issue a bargaining order to rem-
edy unfair labor practices, stating, in part, that:
[E]ven where a union has never demonstrated
majority support in an appropriate unit, the
Board may issue a bargaining order where the
1032
UNITED DAIRY FARMERS COOPERATIVE ASSN.
employer unfair labor practices are so "outra-
geous" and "pervasive" that their "coercive ef-
fects cannot be eliminated by the application of
traditional remedies, with the result that a fair
and reliable election cannot be had." [Id. at 519.]
After reviewing the employer's flagrant violations in
the case before it and in prior cases, the court contin-
ued:
In such an atmosphere the Board was war-
ranted in finding that even if the Union never
possessed a valid card majority, a bargaining or-
der was appropriate to combat Stevens' anti-
union conduct. The extensiveness of the unfair
labor practices here would clearly support a find-
ing that "their coercive effects cannot be elimi-
nated by the application of traditional remedies,
with the result that a fair and reliable election
cannot be had." [Id. at 522.]
And the Third Circuit in N. L.R.B. v. Armcor Indus-
tries, Inc., 535 F.2d 239 (3d Cir. 1976), also viewed
the Supreme Court's discussion in Gissel as recogniz-
ing the Board's authority to issue a bargaining order
in special circumstances without a showing of prior
majority support :24
It is by now a familiar refrain that the Gissel
Court posted a tripartite categorization of unfair
labor practices for considering the issuance of
bargaining orders without requiring elections.
First, in "exceptional cases" marked by "outra-
geous" and "pervasive" unfair labor practices
which eliminate the possibility of holding a fair
election, a bargaining order may issue even with-
out a showing that the union at one point had a
card majority. [535 F.2d at 244.]
Member Penello argues that the principle of major-
ity rule constitutes an absolute limitation on the
Board's remedial authority and precludes a nonma-
jority bargaining order. He has declined, however, to
assess the significance of the fact that following Gissel
at least the Third, Fifth, and possibly the Tenth Cir-
cuit have acknowledged the Board's authority to issue
nonmajority bargaining orders if it finds that there
are no other means of dissipating the effects of an
employer's misconduct. Further, the statutory lan-
guage and Member Penello's extensive recitation of
legislative history demonstrate that, in general, em-
[ In addition to decisions of the Third. Fourth, and Fifth Circuits, the
Tenth Circuit appears to have acknowledged the possibility of a nonmajority
bargaining order. N.LRB. v. Montgomery Ward & Co., Incorporated 554
F.2d 996, 1002 (1977). And in Garwin Corporation, er al. v. N. LR.B., 374
F.2d 295 (1967), the District of Columbia Circuit clearly implied that a
bargaining order would be appropriate upon a proper balancing of compet-
ing policies although it was clear that the bargaining repesentative had never
received the support of a majority of employees.
ployee representation is determined by majority rule,
but they do not disclose any intent by Congress to
limit the Board's remedial powers under Section 10(c)
of the Act by the principle of majority rule.
On the contrary, as the earliest decisions of the Su-
preme Court interpreting the Act make clear, the only
limitation on the Board's powers to remedy unfair
labor practices is that its orders must be remedial and
not punitive.2 5 nor can they be a "patent attempt to
achieve ends other than those which can fairly be said
to effectuate the policies of the Act."26 Thus, where
the Board finds its remedial objectives in possible
conflict with other policies of the Act, the Court has
indicated that so long as the Board takes account of
that possible conflict it has considerable discretion to
formulate remedies which it believes will best effectu-
ate the policies of the Act.27 Contrary to Member
Penello's suggestion, the authority of the Board to
balance conflicting interests in administering the na-
tional labor policy is axiomatic.2 8
2. In balancing competing policy considerations
under the Act, lack of certainty of majority support
does not warrant denial of bargaining order
The essence of the rationale of Members Murphy
and Truesdale for denial of a bargaining order on
policy grounds is that there is no certainty that the
Union ever enjoyed majority support. We share our
colleagues' concern for the possibility that a majority
of employees may not, in fact, desire the bargaining
representative. But in balancing competing policy
considerations under the Act, the Board, with ap-
proval of the courts, has frequently issued bargaining
orders with no greater assurance of the sentiment of
an uncoerced majority than in the present case.
If majority rule is to be the inviolable guide as a
matter of policy, the denial of a bargaining order in
this case is equivalent to a determination that a ma-
jority of employees oppose the Union. However, in
the circumstances of the present case there is as great
an uncertainty that an uncoerced majority oppose the
Union as there is that a majority support the Union.
The tally of 12 votes for the Union and 14 against.
notwithstanding the Employer's serious and extensive
unfair labor practices, suggests the very real possibil-
12 See, e.g.. Republic Steel Corporation v. N. L. R. B., 311 US. 7 (1940).
26 E.g., Fibreboard Paper Products Corp. v. N.LR.B., 379 U.S. 203. 216
(1964); Virginia Electric and Power Company v. N. L. R.B., 319 U.S. 533. 540
(1943).
2"See. e.g.. Franks Bros. Company v. N.L.R.B., 321 U.S. 702 (1944);
N. L. R.B. v. P. Lorillard Company, 314 U.S. 512 (1942): International Associ-
alion of Machinists, Tool and Die Makers Lodge No. 35 [Serrick Corp.] v.
N.L.R.B., 311 U.S. 72 (1940): N.LR.B. v. Falk Corporation, 308 U.S. 453
(1940); N. L RB. v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261 (1937).
2sSee, e.g., h'.LR.B v. Truckdrinvers Local Union No. 449, International
Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of A mer-
ica, A.FL. [Buffalo Linen Supply Co, 353 U.S. 87. 96-97 (1957).
1033
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
ity that in the absence of this unlawful conduct, an
uncoerced majority would have voted for the Union.
Thus, the denial of a bargaining order may very well
impose the views of the minority upon an uncoerced
majority and thereby defeat the principle of majority
rule. Where the employer's unlawful conduct renders
impossible ascertainment of the majority's views, the
likelihood of frustrating the majority's wishes is as
great from denial of a bargaining order as from grant-
ing one. The lack of certainty as to the uncoerced
wishes of the majority has not, as stated, precluded
the issuance of a bargaining order in other situations
where the remedial processes of the Board were oth-
erwise appropriate to correct the effects of an employ-
er's unlawful conduct.
Nevertheless, our colleagues have announced today
that because of the principle of majority rule they will
not issue a bargaining order unless the Union can
demonstrate that it at one time enjoyed majority sta-
tus. It seems clear, however, that the Board departs
from the principle of majority rule whenever it issues
a bargaining order after a union, which bases its
claim of majority status on signed authorization
cards, has lost an election following flagrant employer
unfair labor practices.2" In such a case, the Board or-
ders bargaining despite the fact that the latest evi-
dence indicates that only a minority of employees
support union representation. 3 0 And the Board has
issued such an order even when there has been signif-
icant employee turnover since the unfair labor prac-
tices were committed.3)
Our colleagues assert that whenever the Board re-
jects the results of an election and issues a bargaining
order predicated on a prior card majority, it is restor-
ing the status quo ante. Thus, they would seek to dis-
tinguish the instant case because here there is no evi-
dence that the status quo ante included majority
support for the Union. But the evidence of majority
status which our colleagues view as critical to issu-
ance of a bargaining order is hardly certain or abso-
lute proof of what employee sentiment was or, for
that matter, what it would have been had there been
no unfair labor practices. Opinions may have
29 In J. P Stevens & Co., Inc., supra, I-r example, where the union had a
prior card majority and a bargaining order was granted, the union lost the
election by a vote of 198 to I . In the present case the Union lost the
election by a vote of 14 to 12. In light of comparable backgrounds of unfair
labor practices and the respective votes, our colleagues certainly cannot
mean to suggest that it was more likely in 'levens than in the present case
that on the election day the union would ha we had majority support but for
the unfair labor practices.
0 In Pinter Bros., Inc., 227 NLRB 921(1977)., a decision in which Member
Penello participated, the Board issued a bargaining order although the union
lost the election 14 to 18 and did not have a card majority before the elec-
tion. Majority support for the union was found by adding to the 14 v;otes for
the union in the election the prior signed authorization cards lf5 employees
who did not vote and of I employee whose ballot had not been ctunted
because it was challenged.
"3 Bandag, Incorporated v. N R. B., 583 F.2d 765 (5th ('ir 1978).
changed (even absent misconduct) since the cards
were signed and collected over a period of perhaps
weeks; cards may have been signed in a "go along"
mood, with intent to cast a secret ballot the other
way; or the cards may have been misunderstood.3 2 In
many cases, in the absence of unfair labor practices,
the union will lose an election although immediately
prior thereto it had demonstrated a card majority.
Indeed, these and other well recognized limitations of
authorization cards as absolute proof of majority sup-
port for the union cause the Board and the courts to
prefer elections over cards as a measure of employee
preference.3
Thus, in Linden Lumber Dirision, Summer & Co.,
190 NLRB 718 (1971), and in Arthur F: Derse, Sr.,
President, and Wilder M/g. Company, Inc., 198 NLRB
988 (1972), the Board held that if an employer re-
frains from engaging in misconduct it may reject evi-
dence of a card majority and insist that a union peti-
tion for an election.3 4 The Board reasoned that cards
are "frequently unreliable evidence as to the subjec-
tive desires of employees with respect to union repre-
sentation" and that elections are the "most satisfac-
tory- indeed the preferred--method of ascertaining
whether a union has majority support."3 5 On appeal,
the court of appeals declined to accept the Board's
rationale and suggested that when an employer is pre-
sented with convincing evidence of a card majority
the employer should at least be required to petition
for an election.'6 The court reasoned that although
cards do not establish majority support with certainty
they do evidence a "probability of majority support."
The Supreme Court, however, reversed the court of
appeals and held that the Board's original position
was not "arbitrary and capricious or an abuse of dis-
cretion."" The Court observed that the Board's view
did not mean "that authorization cards are wholly
unreliable as an indication of employee support of the
union" but rather that an employer "may have valid
objections to recognizing a union on that basis."3 8
t2
See N.L R B v Sair Manuacturing (.., 414 U S. 270, 277 (1973);
J P Svens & (Co,.. ulra at 522.
" For that matter, elections too have intrinsic infirmities For example. a
union may be certified even though less than a majority of the unit employ-
ees cast ballots See. e.g., Affordable Inns, Inc., dh/a Regal 8 Inn. 222 NI.RB
1258 (1976).
(Chairman Fanning dissented in both decisions. In his view the Act per-
mits requiring an employer to bargain if it has been presented convincing
evidence of majority support for a labor organization
15 198 NlRB at 999. See also N L. R. v. Gissel Packing (Co. Inc. upra at
6O12 603.
) Tr'uik Drivers Ifnion Local N. 412 Sunimer & (Co. linden Di.] v.
N I.RB., 487 F.2d 199 (D.C. Cir. 1973).
i37 inden Lumber Dirision Summer (o s N l..R.B. 419 l..S 301
(1974) In ('hairma;n Fanning's view, the Court deterred to the Board's ex-
pertise.
" Id at 306. I'he Board's ambivalence with respect to he eflicac 5 of cards
to establish a preelection majority is further illustrated by its decision in
Boinec nls.
1
pe 4Manuf/cturers of Tennessee, Inc. 227 NI.RB 280 (1976),
1034
UINIIED DAIRY FARMERS COOPFRATIVF ASSN.
The agreement of the Board and the courts that
cards are inferior to a secret-ballot election and may
be disregarded entirely by an employer innocent of
unfair labor practices is an acknowledgment of the
possibility that a union having a card majority may
not, in fact, enjoy, or conceivably never enjoyed, ma-
jority support among unit employees. Since authori-
zation cards do not provide a guarantee of a union's
previous majority support, a Board policy which
grants a bargaining order upon a prior showing of a
card majority does not necessarily avoid a minority
union. The same policy considerations which justit a
bargaining order to remedy egregious and extensive
unfair labor practices which have had a chilling effect
on union support in cases of a prior card majority
also support a bargaining order in other comparable
situations. Thus, whenever it appears from all the cir-
cumstances, as in the present case, that the employ-
er's misconduct has rendered impossible an accurate
determination of where the majority support lies, a
bargaining order should issue.
Our noting that card majority support does not
wholly guarantee that a union enjoys true majority
support represents no retreat from our customary re-
liance on such cards as the best available evidence of
where majority choice lies in order to provide an ef-
fective remedy for employer misconduct. Rather. our
purpose is to point out that within the structure of the
statute and within the ambit of our application and
administration of it there is not, and cannot be, any
absolute principle limiting a union to bargaining rep-
resentation only if it conclusively proves its current
majority support.
Moreover, we would note that on occasion the
Board has not confined itself to restoring the statu.s
quo ante and has ordered an employer to bargain with
a union despite the fact that the union could not dem-
onstrate it ever enjoyed majority status among the
affected employees. In GarMin ('orporationl the
Board unanimously ordered an employer, which had
first voluntarily recognized a union at its New York
operations but later unilaterally transferred those op-
erations to Florida in violation of Section 8(a)( I). (3),
and (5) of the Act, to recognize and bargain with the
union regarding terms and conditions of employment
at the Florida facility. This result was reached despite
the fact that there was no evidence that the union
enjoyed majority (or any) support among the Florida
employees or that it was likely that many of the New
York employees would exercise their option to trans-
where a bargaining order was denied to a majort union despite the employ-
er's egregious unfair labor practices because of the presence of another
union.
19 153 NI.RB 664 (965), enfd in part, remanded in part 74 :.2,1 29s
(D.C Cir. 1967), cert denied 387 IIS 942 1967'), molditied on reni;and 169
NLRB 1030 (1968)
t'fer to Florida. The Board reasoned that failure to is-
sue such a bargaining order would permit the em-
ployer to profit from its wrongful conduct, and that,
on balance, the interests of the Florida employees
were outweighed by the statutory objective of fash-
ioning a meaningful remedy for the unfair labor prac-
tices ftund."40 That reasoning is applicable here.4 1 As
previously noted, in Pinter Brothers, Inc.. supra, the
Board issued a bargaining order although, as in the
present case, the union had no prior card majority
and lost the election.
In a variety of other situations, the Board's reme-
dial objectives have been balanced against an insis-
tence upon conclusive evidence of current majority
preference. This balancing analysis has mustered con-
siderable judicial support. Thus, the Supreme Court
has long acknowledged that in appropriate circum-
stances the Board's remedial objectives may outweigh
the principle of majority rule. For example, the Court
has approved orders requiring an employer: (1) to
cease recognizing a union which the Board had found
was unlawfully dominated and assisted, although
there was no evidence that the union, in fact, did not
enjoy majority support 4 2 (2) to bargain with a union
which enjoyed a card majority before the employer
succeeded in obtaining evidence of majority support
for a company-dominated union: 43 (3) to bargain with
4) Id at 666.
l In refusing to enlorce the prtion of the Board's Order that required
hbargaining at the fllorida f.acillty. the )lstrict of '('olumbia Circuit ruled that
the Board's Order impermissibly infringed upon the rights oif Il:hrda em-
ployees. with nl correspondin henefit to the New York employees whose
rights had been iolated and renarided the case to the Board for reconsider-
ation of its remedy 'Writing for the majirit. then Judge Burger. now Chief
Justice, Burger stated that:
I rlhe remieds fashioned hb the Board n this case imposes n the Flor-
ida workers a bargaining representative without reterence to) their
choice Su h an infringenntwi the Flrida ei'mploieet' Secli,n righrt
might he jilrtlied i sr,.i rihrt* the ', York workers depended on that
halauning or /or some lther alid reason the Bnrd crntidered it neces-
Vae rio promote nduririal pa,ll [374 F.2d at 301 302. emphasis sup-
plied
The court concluded. howeser. that since the Board had premised ts, bar-
gaining Order solely on a desire to renimoe from the Employer the benefits
of its wrongdoing" it had not engaged in "a genuine balancing oI the rights
of newly hired workers against those of discriminatees whose plices theN
titok" lid at 3112) Hiad it done so, the court nted. "we would a.lliwH it ser,
wide scope" It is readily apparent that a bargaining rder in the calse alt
hand would not run itfiul of the standard enunciated in Ga-in.
4: 1 .t R. Ft s PennAsiiinia G;rnhound ine, In, . uprl [likewise in
A 1 R B v IW-1l ( rporulion. upri. the ('Court adopted a Board Order that
an emnploer-diomiiated union hbe disestahlished and that it be precluded
from appearing otn the ballot in a later representation election
Slmilarly. the Board has revroked the certification of a union as a remeds
for the union's discriminator practices without any inquiry into that union's
iaority ialus upIndpi,nt lt!l ItrAcr I ion. l I, al.l ( Hughes Tw
('inpilllt). 147 NlIRB 1573 (1964)1 Allhough we adhere to lur respective
positions in Itandl ndi, 1I1n 228 NI.RB 447 1977)1 and in Btl & llo.el
(,npanr. 23 1)NI R 420 (1977). we agree that neither case distl:bed he
Board's pohlic of res.,kin a union's certification where the uni.on h been
tliund to hase prilcticed Ia polich It .ldios., discriminaltin igainst unit
ernplo ecs
41 nlte'rn tioi,,t 4vi, ltilnl 4! tfif( h il, s s 1 R R or. tltith] 1 to' -
ri. ( - p,ni. v I R 3 S ) 11940)
1035
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union found at one time to have possessed a card
majority but which withdrew its election petition be-
cause of the employer's unfair labor practices;" and
(4) to bargain with a union which at one time pos-
sessed a card majority but lost an election because of
the employer's unair labor practices which had also
made it unlikely that a fair rerun election could be
conducted.45 Whenever it has been argued that bar-
gaining order remedies in these cases abridged em-
ployee freedom of choice, the Court has rejected such
arguments in each instance and has noted that the
Board had considered the problem but nevertheless
had concluded that its remedy effectuated the policies
of the Act.46
The Board's policies permit union recognition in
numerous other circumstances notwithstanding the
fact that the majority status of the union may be un-
certain. A union will continue to be recognized after
an unlawful refusal to bargain while a valid agree-
ment is in effect or during the year following certifica-
tion although majority support may, in fact, be lost
through normal turnover, plant expansion, or for
other reasons. Further, the Court has recognized that
Board remedies establishing or disestablishing bar-
gaining relationships without the mandate of current
employee preference are not permanent but rather
operate only to negate the effects of the unfair labor
practices until such time as a valid question concern-
ing representation may be raised.47
3. Policy considerations justify a bargaining order
As shown above, the need for a bargaining order as
a remedy has always been regarded as a problem of
evaluating and balancing. The quality, severity,
reach, repetition, variety of misconduct, and history
of previous misconduct,4 8 are all measured and
weighed in deciding whether a bargaining order is
required or appropriate. Although purporting to
adopt this "balancing" approach, our colleagues ap-
pear to be erecting an ironclad or per se rule that a
bargaining order will never issue unless a previous
majority has been shown, even though it is possible
that an uncoerced majority supports the union and
that the employer's unlawful conduct has made it im-
a Franks Bros. Co. v. N.L.R.B., supra.
4 N.LR.B. v. Gissel Packing Co., supra.
'E.g., N.LRB. v. P. Lorillard Co., supra at 513.
7 N.L.R.B. v. Gissel Packing Co., supra a 613; Franks Bros. v. N.LR.B.,
supra at 705-706.
4 As is evident from our dissenting opinion in Haddon House Food Prod-
ucts, Inc., and Flavor Delight, Inc., 242 NLRB No. 180 (1979), although a
history of recidivism is an important factor to be weighed, it is not determi-
native of whether a bargaining order should issue. Thus, we do not believe
that a respondent should be encouraged to engage in an unlawful campaign
against employee rights secure in the knowledge that no bargaining order
will be issued to remedy its conduct because it i its initial foray into unlaw-
ful activity.
possible to ascertain this." This rule, rather than the
issuance of a bargaining order, frustrates the policy of
the Act, as the facts here plainly show.
In the face of the Employer's severe and pervasive
misconduct, the employees nonetheless voted 12 in
favor of the Union and 14 against. So close a vote
following strong coercion indicates a reasonable like-
lihood that absent the coercion the Union at one time
had the support of a majority even though there had
been no prior card showing of a majority. As noted
earlier, a card majority does not always guarantee
against a minority union, but it justifies a bargaining
order despite the union's loss of an election on the
ground that the card showing provides a reasonable
basis for concluding that the union would have en-
joyed majority support if the employer's flagrant un-
fair labor practices had not improperly influenced
employee sentiment. The same conclusion can be
based on other evidence, such as the union's near-
majority election support in the face of serious and
widespread unfair labor practices. Thus, even accept-
ing our colleagues' apparent insistence on evidence of
union majority support before they will issue a reme-
dial bargaining order, the per se rule of "card major-
ity only" prevents them from doing that necessary
minimum of balancing and evaluating which the Act
requires if its policies are to be given effect.
In our view, where the employer's misconduct has
prevented the ascertainment of the wishes of the ma-
jority which our colleagues regard as pivotal, then the
location of the majority support simply remains in-
determinate, and the only effective remedy to offset
this unlawful action is a bargaining order. As we have
noted, to issue it runs a risk that a minority union will
represent the employees; not to issue it runs the oppo-
site risk that a union with majority support may be
shut out. Between these choices, the clear course
seems to us to be the one which will prevent the em-
ployer from effectively frustrating the Act by requir-
ing it to bargain with the union for a reasonable pe-
riod.0 While the closeness of the election result in this
,4 Our colleagues' failure to issue a bargaining order in the present circum-
stances is but one more instance of the Board's unwillingness to use its
powers fully to carry on the purposes of the Act-an unwillingness which
has been the subject of pointed comment from the courts on more than one
occasion. See Vaca v. Sipes, 386 U.S. 171, 181-183 (1967), wherein the
Court, in discussing the doctrine of the duty of fair representation, observed
that "the Board adopted and applied the doctrine as it had been developed
by the federal courts" and referred to "the NLRB's tardy assumption of
jurisdiction in these cases." See also Banyard v. N.L.R.B., 505 F.2d 342 (D.C.
Cir. 1974). It is especially noteworthy that the courts have been well in
advance of the Board in formulating remedies for refusals to bargain, the
area of violation with which we are concerned here. N.LR.B. v. Johnson
Manufacturing Company of Lubbock, 511 F.2d 153 (5th Cir. 1975); N.LR.B.
v. Medlox Manufacturing Company, 83 LRRM 2346 71 LC 113,817 (9th Cir.
1973); N.LR.B. v. Schill Steel Products, Inc., 480 F.2d 586 (5th Cir. 1973).
1o This is not to be construed as indicating that we would grant a bargain-
ing order routinely in cases of extensive unfair labor practices when a union
has not established its majority status, Rather. this is an extraordinary rem-
edy which will be employed only where the record clearly establishes that
1036
UNITED DAIRY FARMERS COOPERATIVE ASSN.
or other cases might (like a card majority showing)
afford some comfort that we are not likely to be im-
posing a minority union on the employees, we would
not require a close election as a condition of The
Remedy. To do so might place a premium on the
employer's escalating the reach and severity of its
misconduct in an effort to achieve an overwhelming
election victory and thus forestall a bargaining order,
thereby rewarding most the greatest misconduct. It is
the employer's frustration of the choice prescribed by
the statute and not its degree of success in such un-
lawful activity which must be remedied and can only
be remedied by a bargaining order.
By denial of a bargaining order our colleagues
would permit the coercive effects of Respondent's
misconduct to go virtually unremedied and thereby
defeat the statutory policy of giving employees a free
choice in selecting a bargaining representative. Since
bargaining orders in the past have been issued when
it is clear, after an election, that the union does not
then enjoy majority support and there is no certainty,
because of the infirmities of the card authorization
mechanism, that the union ever enjoyed majority sup-
port, there is no sound policy reason for denying a
bargaining order in a situation of flagrant violations
solely because a union has not previously obtained a
card majority. The policy considerations for issuing a
bargaining order are the same whether the union has
or has not secured a card majority at some prior time.
The employer who has committed serious unfair
labor practices to discourage union support can
hardly complain if the objective of its illegal conduct
is frustrated by a bargaining order. As the Supreme
Court stated in Gissel, supra, although the union "rep-
resents only a minority when the bargaining order is
entered," to limit the Board's remedial action to the
entry of a cease-and-desist order and rerunning the
election "would in effect be rewarding the employer
and allowing him" to profit from his wrongful con-
duct "while at the same time severely curtailing the
employees' right freely to determine whether they de-
sire a representative. The employer could continue to
delay or disrupt the election processes and put off
indefinitely his obligation to bargain; and any elec-
tion held under these circumstances would not be
likely to demonstrate the employees' true, undistorted
desires" (395 U.S. at 610-61 1).
Concerning the argument in Gissel that a bargain-
ing order for the purpose of restraining an employer
prejudices employees' Section 7 rights, the Court
stated that "[s]uch an argument ignores that a bar-
gaining order is designed as much to remedy past
election damage as it is to deter future misconduct. If
the employer has been guilty of most serious unfair labor practices which not
only prevented the holding of a fair election but which also may have pre-
vented the union from achieving majority status.
an employer has succeeded in undermining a union's
strength and destroying the laboratory 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...." (395
U.S. at 612). The Court observed that the union
might have lost the election in the absence of em-
ployer coercion and, in that event, "those who oppose
collective bargaining may be prejudiced by a bargain-
ing order." But it noted that "those who desire repre-
sentation may not be protected by an inadequate re-
run election" (id. at 612, footnote 33). Thus, as one
commentator stated:
For if it is possible that the employees might not
have chosen the union had they been given a free
choice in the matter, it is also possible that they
would have supported the union if no violations
of the law had occurred. Hence, given the linger-
ing effects of serious unfair labor practices, the
bargaining order may provide the best means to
give effect to their real wishes.5'
As a further matter, it was observed that where the
employer's unfair labor practices have made impossi-
ble the ascertainment of the majority wishes in a free
election and there is a reasonable likelihood that the
union otherwise would have prevailed, accepted re-
medial principles should operate "to prevent the em-
ployer from capitalizing on the uncertainty created
by his own unlawful act," and, accordingly, doubts
should be resolved against the employer "by confer-
ring representative status on the union."
The foregoing anaylsis demonstrates that the Act
does not require that a union, in order to obtain bar-
gaining rights, prove conclusively, or in some cases
even minimally, that it has majority support. The
paramount purpose of the Act is to protect the em-
ployees' freedom of choice to select or reject a union
as their collective-bargaining representative. Thus,
the basic problem in cases such as this is to provide
an appropriate remedy protecting this right, rather
than to determine where the majority support may
probably lie. This is our reading of the Court's deci-
sion in Gissel that in cases of exceptional misconduct
a bargaining order may be an appropriate remedy
even in the absence of a demonstrable union major-
ity. If evidence is available indicating where majority
support probably lies, then our task is easy. But
where there is no such evidence because the employ-
'I Bok, "Regulation of Campaign Tactics In Representation Elections Un-
der The National Labor Relations Act." 78 Harvard Law Review 38, 138
(1964).
52 Id. at 138-139, :n, 274. Professor Bok also stated: "[tlhose who would
resist this remedy in the name of the employees must answer for the employ-
ees whose free choice is currently impaired by the lack of adequate rem-
edies." Id. at 135, Cf. Garwin Corporation v. N. LR B., 374 F.2d 295-304
(D.C. Cir. 1967), Judge McGowan dissenting.
1037
[)E('ISIONS OF NATIONAI. LABOR RELATIONS BOARD
er's egregious misconduct has shut it off; then it be-
comes imperative that we provide some remedy to
protect the employees' right to the choice which the
employer has unlawfully eliminated. Without an ef-
fective remedy, the violator can flout the Act with
impunity and enjoy, indefinitely and perhaps repeat-
edly, the fruits of his wrongdoing and deny the choice
which the Act guarantees to the employees. Where
the union has, despite the employer's egregious mis-
conduct, nonetheless achieved substantial support,
the issuance of a bargaining order is appropriate since
there is a very good probability that had employee
choice been allowed to emerge it would have favored
the union. Such remedy simply allows the employees
to learn through the only available route, the em-
ployer having unlawfully blocked the others, about
the legitimate option the employer has foreclosed to
them, so that after experiencing it for a reasonable
time the employees then may make the free and rea-
soned choice the Act provides for them. The em-
ployer, having destroyed the employees' chance to
choose, can hardly be heard to complain that the bar-
gaining order may possibly make a choice for the em-
ployees which a majority might not support.
In any event, as the Court pointed out in Gissel,
supra, "there is, after all, nothing permanent in a bar-
gaining order, and if, after the effects of the Employ-
er's acts have worn off, the employees clearly desire to
disavow the union, they can do so by filing a repre-
sentation petition" (395 U.S. at 613). Since there is as
great a potential for denying employees' rights guar-
anteed by Sections 7 and 9(a) by refusing a bargain-
ing order as by granting one, and particularly so
where the majority issue is close, as in the present
case, sound policy favors issuance of a bargaining or-
der. Otherwise Respondent's flagrant and widespread
unfair labor practices which have denied employees a
free election will go unremedied, and Respondent will
be rewarded by the achievement of its unlawful ob-
jectives.
We would, therefore, affirm the Administrative
Law Judge's issuance of a remedial bargaining order
here.
MEMBER PENELLO, concurring in part and dissenting
in part:
Today, my colleagues announce for the first time
that henceforth this Board will be ordering employers
to bargain with labor organizations that never com-
manded majority support among rank-and-file em-
ployees.5 3 In so doing, my colleagues overrule, sub
53 Although my colleagues file two separate opinions, close examination of
their positions reveals that the difference between them amounts to nothing
more than a factual disagreement. Members Murphy and Truesdale find that
the unfair labor practices in this case are not severe enough to warrant
granting a bargaining order, while Chairman Fnning and Member Jenkins
believe that issuing a bargaining order isjustified on the facts presented here.
silentio, a decade and a half of Board precedent to the
contrary. E.g., Fuqua Homes Missouri, Inc., 201
NLRB 130 (1973); GTE Automatic Electric, Inc., 196
NLRB 902 (1972); The Loray Corporation, 184
NLRB 557 (1970); International Union of Electrical,
Radio and Machine Workers, AFL CIO (Scott's,
Inc.), 159 NLRB 1795 (1966), enfd. as modified 383
F.2d 230 (D.C. Cir. 1967), cert. denied 390 U.S. 904;
J. P. Stevens & Co., 157 NLRB 869 (1966), enfd. as
modified 380 F.2d 292 (2d Cir. 1967), cert. denied 389
U.S. 1005; W. H. Elson Bottling Company, 155 NLRB
714 (1965), enfd. as modified 379 F.2d 223 (6th Cir.
1967).
In these cases, a Board policy evolved of refusing
to issue a bargaining order, notwithstanding flagrant
and egregious unfair labor practices, where there was
no evidence that the union ever enjoyed majority sta-
tus. Inherent in this policy, which was formulated
well before N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575 (1969), and continued thereafter, is the rec-
ognition of the fundamental principle that the Act,
like our democratic society, is grounded on the prem-
ise of majority rule. Holdings of the Supreme Court,
the plain words of the statute, and its legislative his-
tory confirm the correctness of the Board's prior prac-
tice and establish that the Board's remedial authority
is limited by the majority rule doctrine. I must there-
fore dissent from my colleagues' determination that
in future cases bargaining orders shall issue in dero-
gation of the majority rule precept? 4
In analyzing the Court's opinion in Gissel, it is im-
portant to bear in mind the one key fact common to
the four cases before the Court and the precise legal
issues raised by that fact. Specifically, in summarizing
the history of the three consolidated cases from the
Fourth Circuit, Gissel Packing Co., Inc., Heck's, Inc.,
and General Steel Products, Inc., the Court stated that
"the Board found in each case... that the Union had
obtained valid authorization cards from a majority of
the employees in the bargaining unit" (395 U.S. at
4 While extraordinary remedies short of a bargaining order are clearly
appropnate in circumstances such as those presented here (see. generally,
Elson Bottling, supra), I cannot agree with the full extent of the measures
ordered by Chairman Fanning and Members Jenkins and Truesdale. These
provisions originated in a contempt adjudication issued by the United States
Court of Appeals for the Second Circuit in N.L.R.B. v. J P. Stevens & Co.,
Inc., 563 F.2d 8 (1977), cert. denied 434 U S. 1064 (1978). In imposing the
remedies in J. P. Stevens. the Second Circuit noted that the company had
been involved in 17 prior Board and court cases, and that this was not the
first time it had been Round in civil contempt. 'The court termed that respon-
dent "the most notorious recidivist in the field of labor law." Thereafter. the
Board decided to impose the Second Circuit's remedies against the same
respondent in two subsequent cases 239 N.RB No 95 ( 1978), 240 NI.RB
No. 35 (1979)). In my opinion, the wholesale adoption of the J. P. Stevens
remedies here does not satisfy the Board's responsibility under Sec. 10(c) of
tailoring the relief ordered to the circumstances of each case.
1038
tINITFD) I)AIRY FARMERS C((X)PERATIVE ASSN
582 583). Similarly, in the remaining case, Sinclair
Companlrv, "[t]he Board also found that the Union had
a valid card majority" (395 U.S. at 589). The Court's
holdings in regard to three of' the four issues before it
(the remaining issue involved a first amendment ques-
tion) demonstrate that the presence of union majority
status in each of the four cases was the critical factual
underpinning of the Court's opinion. Thus, the Court
held that (i) "a union can establish a bargaining obli-
gation by means other than a Board election and ...
the validity of alternate routes to majorit status, such
as cards, was not] affected by the 1947 Taft-Hartley
amendments" (395 U.S. at 595 596); (ii) "union au-
thorization cards, if obtained from a majority of em-
plovees without misrepresentation or coercion, are re-
liable enough generally to provide a valid, alternate
route to majoriOt status" (395 U.S. at 579): and (iii) "a
bargaining order is an appropriate and authorized
remedy where an employer rejects a card majority
while at the same time committing unfair labor prac-
tices that tend to undermine the union's majority and
make a fair election an unlikely possibility" (395 U.S.
at 579) (emphasis supplied).
It is within this particular context that one must
evaluate the three categories or fact patterns formu-
lated by the Court to be employed in deciding
whether to issue a remedial bargaining order or to
direct an election. Category three cases involve rela-
tively minor unfair labor practices which have a mini-
mal impact on the election machinery and therefore
will not sustain a bargaining order. In category two
situations, the Board is authorized to remedy unfair
labor practices which have the tendency to under-
mine majority strength by issuing a bargaining order
if the Board determines that the possibility of insur-
ing a fair election, though present, is slight, and that
on balance, the card majority would be a more reli-
able indication of the employees' desires.
It is at this point that my colleagues and I part
company, for we disagree as to the kinds of cases
which comprise category one. My colleagues contend
that by quoting certain language in N.L.R.B. v. S. S.
Logan Packing Company, 386 F.2d 562, 570 (4th Cir.
1967), the Court indicated that the Board has the au-
thority to issue a bargaining order to remedy "outra-
geous" and "pervasive" unfair labor practices "with-
out need of inquiry into majority status on the basis
on cards or otherwise" (395 U.S. at 613-614).55 How-
" The dissent relies on the Fifth Circuit's opinion in J. P. Stevens & Co.,
Inc., Gulrstan Division v. N L.R.B., 441 F.2d 514 (5th Cir. 1971), cert denied
404 U.S. 830, as supporting its interpretation of category one of Gissel How-
ever, the question raised by the instant case was not directly presented in
J. P. Slevens because the Board's bargaining Order was based on its finding,
which was affirmed by the court, that at one point the union enjoyed major-
ity status. Similarly, in N.LR.B. s. Armcor Industries, Inc., 535 F.2d 239 (3d
Cir. 1976), and in N.L.R.B. v Montgomery Ward Co, Incorporated. 554
F.2d 996 (10th Cir. 1977). also cited by the dissent, the courts were not
ever, close examination of the Fourth Circuit's Logan
Packing opinion reveals that the court stated only
that the Board "may have the power" to impose such
a bargaining order, and that "in light of the guaranty
of §7 of employees' rights not to be represented, its
use, if ever appropriate, must be reserved for extraor-
dinary cases" (386 F.2d at 570-571) (emphasis sup-
plied). Not only did the Fourth Circuit go no further
than to indicate that the Board's authority in those
circumstances was an open question, a fact explicitly
recognized by the Supreme Court in Gissel (395 U.S.
at 613), but also the Fourth Circuit's comments were
obviously dicta, for two paragraphs earlier it charac-
terized the employer's conduct as involving "very
minimal infractions." "In addition, the Court's quot-
ing of this dicta in Gissel was itself dicta because, as
discussed above, in all the cases before the Court the
union had achieved majority status. Thus, the posi-
tion of my colleagues rests on dicta in Gissel quoting
dicta in Logan Packing which expressly left open the
issue of statutory authority raised by the instant
case.'
Furthermore, in my view the Court quoted the Lo-
gan Packing dicta merely to illustrate that, despite its
reversal of the Fourth Circuit "on all major issues,"
the actual area of disagreement between the two
courts was not "large as a practical matter" because
in an extreme case even the Fourth Circuit left open
the possibility of imposing a remedial bargaining or-
der (395 U.S. at 613). Under this interpretation, the
Court's description of category one cases was limited
to approving the Board's "policy of issuing a bargain-
ing order, in the absence of a §8(a)(5) violation or
even a bargaining demand, when that was the only
available, effective remedy for substantial unfair la-
bor practices. See, e.g., United Steelworkers of Amer-
ica, A FL-CIO /Northwest Engineering Co.] v.
N.L.R.B., 376 F.2d 770 (D.C.Cir. 1967); J. C. Penney
Co., Inc., v. N.L.R.B., 384 F.2d 479, 485-486 (10th
Cir. 1967)." In each of these cases cited by the Court
as examples of the Board's policy, the union enjoyed
majority status at some point. This analysis is sup-
ported by the Court's holding that Sinclair, where the
union had a valid card majority, was a category one
case, and the Board therefore "did not have to make
the determination called for in the intermediate situ-
ation" (category two) because "the Board made a
finding, left undisturbed by the First Circuit, that the
employer's threats of reprisal were so coercive that,
even in the absence of a §8(a)(5) violation, a bargain-
ing order would have been necessary to repair the
squarely faced with the issue posed here because in each case the union had
obtained a card majorinty.
" See "NLRB v. Gissel Packing Co.: Bargaining Orders and Employee
Free Choice," 45 N.Y.U. L. Rev. 318, 334. fn. 88 (1970): "The Court did not
specify whether union majonty status is a prerequisite to the issuance of an
order in category one] circumstances"
1039
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawful effect of those threats" (395 U.S. at 615). In
view of the foregoing, one commentator has con-
cluded that "[t]he reference to 'the possibility of im-
posing a bargaining order, without need of inquiry
into majority status on the basis of cards or otherwise'
should not be taken out of context. Not even re-
motely did the Supreme Court intimate that this was
its view." Platt, "The Supreme Court Looks At Bar-
gaining Orders Based On Authorization Cards," 4
Georgia Law Review 779, 796-797 (1970).57
Accordingly, I do not believe that the Gissel deci-
sion can be relied on to any extent as supporting the
position taken by my colleagues. But, as discussed
above, even under the interpetation of Gissel most
favorable to them, all that can fairly be said is that
the Court left open the issue of whether the Board has
the statutory authority to issue a bargaining order in
the absence of a showing that the union ever enjoyed
majority support. To that question we now turn.
II.
There can be no doubt that embodied in Section
9(a) is the principle of majority rule. For it expressly
provides, in words which have remained unchanged
since the passage of the Act over 40 years ago, that
"[r]epresentatives designated or selected . . . by the
majority of the employees in a unit ... shall be the
exclusive representatives of all the employees in such
unit for the purposes of collective bargaining." By
adopting the majority rule principle, Congress com-
pletely repudiated the common law approach to col-
lective bargaining which focused on the assumed in-
tent of the individual employee.5 As support for an
industrial relations system which subordinated indi-
vidual rights to collective rights, Congress looked to
the history and customs of the society at large. Thus,
the Senate Committee on Education and Labor stated
that "[tlhe principle of majority rule has been applied
successfully by governmental agencies and embodied
in laws of Congress .... And the rule is sanctioned by
our governmental practices, by business procedure,
and by the whole philosophy of democratic institu-
tions." 59 Discussing on the floor of the Senate the bill
which became the National Labor Relations Act,
Senator Wagner said that "democracy in industry
must be based upon the same principles as democracy
in government. Majority rule, with all its imperfec-
57 For a similar view, see "Bargaining Orders Since Gissel Packing: Time
To Blow the Whistle on Gissel?," 1972 Wisconsin Law Review 1170, 1182:
"In category one cases a card majority is required, but a section 8(aX5)
violation need not be established."
M See Weyand, "Majority Rule in Collective Bargaining," 45 Columbia
Law Review 556, 559-561 (1945).
S9 S. Rep. No. 573 on S. 1958, Committee on Education and Labor, 11 Leg.
Hist. 2300, 2312-13 (1935). The report of the House Committee on Labor
also reflected this view. H. Rep. No. 1147 on S. 1958, Committee on Labor,
II Leg. Hist. 3046, 3071, 3072 (1935).
tions, is the best protection of workers' rights, just as
it is the surest guaranty of political liberty that man-
kind has yet discovered."
Minority groups were to be protected by means
other than permitting them to impose their will on the
majority. Again, in the words of Senator Wagner,
"majority rule recognizes minority rights." 6' For ex-
ample, Congress acted to preserve minority rights
when it added a proviso to Section 9(a) which stated
that "any individual employee or a group of employ-
ees shall have the right at any time to present griev-
ances to their employer."
When we turn from an examination of the legisla-
tive history of the Wagner Act and trace its develop-
ment to the present day, we find that the theme of
majority rule and minority rights is a dominant one.
Thus, early in the Act's history, the United States
Supreme Court held that Congress implicitly imposed
upon the bargaining representative chosen by the ma-
jority the duty to represent fairly the interests of mi-
norities within the unit (Wallace Corporation v.
N.L.R.B., 323 U.S. 248 (1944); cf. Steele v. Louisville
& Nashville Railroad Co., et al., 323 U.S. 192 (1944)).
Three years later, Section 7 of the Act was amended
to include the right of employees "to refrain from ...
such activities" as "bargain[ing] collectively through
representatives of their own choosing." During this
time, the principle of majority rule was interpreted as
placing upon an employer two related obligations.
First, there is a statutory duty to deal only with the
representative chosen by the majority. See J. I. Case
Co. v. N.L.R.B., 321 U.S. 332 (1944). Second, there is
an equally stringent duty not to deal with one having
only minority support.
In regard to the latter, it is a violation of Section
8(a)(3) for an employer to enter into a union-security
agreement with a labor organization unless "such la-
bor organization is the representative of the employ-
ees as provided in section 9(a)." In other words, a
union-security agreement can be negotiated only with
a union chosen by a majority of the employees. Sec-
tion 8(a)(2) contains an even more basic prohibition.
For "[t]he law has long been settled that a grant of
exclusive recognition to a minority union constitutes
unlawful support in violation of that section." Inter-
national Ladies' Garment Workers' Union, AFL-CIO
[Bernhard-Altmann Texas Corporation] v. N.L.R.B.,
366 U.S. 731, 738 (1961). In that case, the Court held
that the employer had violated Section 8(a)(1) and (2)
and the union had violated Section 8(b)(1)(A) by en-
tering into an exclusive recognition agreement at a
time when the union did not have majority support:
In their selection of a bargaining representa-
tive, §9(a) of the Wagner Act guarantees em-
6079 Cong. Rec. 7571, 11 Leg. Hist. 2337 (1935).
61 Id.
1040
UNITED DAIRY FARMERS COOPERATIVE ASSN.
ployees freedom of choice and majority rule....
In short, as we said in Brooks v. Labor Board.
348 U.S. 96, 103, the Act placed "a nonconsent-
ing minority under the bargaining responsibility
of an agency selected by a majority of the work-
ers." Here, however, the reverse has been shown
to be the case. Bernhard-Altmann granted exclu-
sive bargaining status to an agency selected by a
minority of its employees, thereby impressing
that agent upon the nonconsenting majority.
There could be no clearer abridgment of §7 of
the Act, assuring employees their right "to bar-
gain collectively through representatives of their
own choosing" or "to refrain from" such activity.
[366 U.S. at 737.]
The Court rejected the contention that a good-faith
belief in the union's majority status should be a com-
plete defense. "To countenance such an excuse." the
Court stated, "would place in permissibly careless
employer and union hands the power to completely
frustrate employee realization of the premise of the
Act-that its prohibitions will go far to assure free-
dom of choice and majority rule in employee selec-
tion of representatives. ... The act made unlawful by
§8(a)(2) is employer support of a minority union.
Here that support is an accomplished fact. More need
not be shown ... " (366 U.S. at 738-739). Even the
dissent, which would have permitted the minority
union to bargain for its members, agreed with the
majority that "under the statutory scheme, a minority
union does not have the standing to bargain for all
employees. That principle of representative govern-
ment extends only to the majority" (366 U.S. at 740).
My colleagues, therefore, stand the Act on its head
when they claim that it empowers the Board to ac-
cord representative status to a labor organization
which never passed the statutory test of being "desig-
nated or selected ... by the majority of the employ-
ees." They err in analyzing this case as turning solely
on whether a regime of minority rule comports with
their view of sound policy. I submit that the Board is
not free to annul the congressional mandate ex-
pressed in Sections 9(a), 8(a)(3), 8(a)(2), and 7 which
limits employees' bargaining representatives to those
which have been chosen by the majority.
Apparently my colleagues believe that the Board's
authority under Section 10(c) to remedy unfair labor
practices is not limited by the mnajority rule principle
of Section 9(a). The difficulty with that position is
that a very similar contention concerning Section
10(c) was considered and rejected by the Supreme
Court in H. K. Porter Co., Inc., Disston Division-Dan-
ville Works v. N.L.R.B., 397 U.S. 99 (1970). The issue
presented there was limited to whether the Board had
the statutory authority to remedy the employer's re-
peated refusals to bargain in good faith about a dues-
checkoff' clause by requiring the employer to agree to
such a clause. The Court held that although the
"Board's remedial powers under 10 of the Act are
broad," the proposed reimed violated "[o]ne of [the]
fundamental policies" of the Act. freedom of con-
tract, and therefore exceeded the Board's authority
(397 U.S. at 108).
The court of appeals had recognized that "the Na-
tional Labor Relations Act is grounded on the prem-
ise of freedom of contract," but found that the reme-
dial measure was necessary to further the "equally
important policy of the Act" of "guaranteeing the
right of workers to organize and bargain collectively"
(United Steelworkers of . mericl [H. K. Porter] v.
N.L.R.B., 389 F.2d 295. 300 (D.C.Cir. 1967)). "The
requirement that a checkoff he granted is at most a
minor intrusion on freedom of contract." the court of
appeals reasoned. "Yet if the Board can do no more
than repeatedly order the company to bargain in
good faith, the workers' rights to bargain collectively
may be nullified." The court concluded that "[w}here
an employer has twice been found to have violated
his duty to bargain in good faith, a checkoff in return
for a reasonable concession by the union may be the
only effective remedy" (389 F.2d at 302).
The Court rejected the court of appeals' approach
of balancing conflicting policy considerations and de-
clined to examine the merits of the remedy.6 2 "It may
well be true, as the Court of Appeals felt, that the
present remedial powers of the Board are insuffi-
ciently broad to cope with important labor prob-
lems," the Court said. But under the Act as presently
written, the Board lacked the power to impose The
Remedy in question, the Court concluded, because
that authority lies solely with Congress (397 U.S. at
109).
Here, as in H. K. Porter, it is claimed that the
Board can issue a remedial order that conflicts with a
fundamental principle of the Act. Here, as there, it is
argued that violation of the basic precept must be
tolerated in order to further the policy of the Act of
securing employees' rights to bargain collectively.
Here too support for the extraordinary remedy is al-
legedly found in the inadequacy of less drastic mea-
sures and Respondent's prior violations of the Act.
For the dissent concludes that since our traditional
remedies do not assure employee free choice in view
of the lingering effects of Respondent's coercive con-
duct, on balance a bargaining order is the only effec-
tive means for remedying a denial of the employees'
right to collective representation and depriving Re-
"2 In contrast, the dissent would have imposed the checkoff clause "as
'affirmative action' necessary to remedy the flagrant refusal of the employer
to bargain in good faith" (397 U.S. at 110).
11)41
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent of the advantages of its repeated unfair la-
bor practices.6 3 In my opinion, such a balancing ap-
proach flies in the face of the Court's conclusion in
H. K. Porter that the Board's remedial authority un-
der Section 10(c) will not support action in deroga-
tion of a fundamental policy of the Act, even though
some other important policy might thereby be served.
Certainly it cannot be seriously contended that the
policy of majority rule is any less fundamental than
freedom of contract. Therefore, if a labor organiza-
tion is to become a bargaining representative in the
absence of a showing of majority support, the deci-
sion must be made by Congress, the body which con-
structed the Act with the majority rule principle as its
foundation.
III.
As indicated above, in the 10 years since Gissel was
decided, this Board has repeatedly held that it would
not impose a bargaining representative upon employ-
ees without their consent. For example, in The Loray
Corporation, 184 NLRB 557 (1970), a three-member
panel (including then-Member Fanning and Member
Jenkins), agreed with the Administrative Law Judge's
description of respondent's unlawful conduct as "out-
rageous" and "pervasive" but declined to adopt the
bargaining Order recommended by him because "the
record does not at any point reveal a showing of ma-
jority status on the part of the Union."
Two years after Loray, the Board was again pre-
sented with the question of whether to issue a bar-
gaining order to remedy unfair labor practices in the
absence of majority support for the union (GTE A uto-
matic Electric, Inc., 196 NLRB 902 (1972)). Unlike
Loray, in GTE respondent was also a recidivist of-
fender of employee rights. Nevertheless, the Board
panel (including then-Member Fanning and Member
Jenkins), did not adopt the Administrative Law
Judge's recommended bargaining Order but rather
directed a third election, stating that "the record does
not in any way reveal or support a showing of major-
ity status."
The third post-Gissel case in which this issue arose
was Fuqua Homes Missouri, Inc., 201 NLRB 130
(1973). Once again, a three-member panel (including
then-Member Fanning and Member Jenkins), agreed
with the Administrative Law Judge that respondent's
illegal conduct was "extensive'" and "pervasive," but,
citing Loray, the panel declined to follow his recom-
mendation that a bargaining order should issue be-
cause "the record is devoid of any evidence establish-
ing majority status on the part of the Union."
a The Murphy-Truesdale opinion also engages in balancing, but on the
particular facts presented here it reaches the opposite result.
Today, however, Chairman Fanning and Member
Jenkins advocate the elimination of the traditional
majority showing prerequisite to the issuance of a
bargaining order, and Members Murphy and Trues-
dale indicate that they are prepared to join the dis-
senters in a future case. Thus, the refusal of Members
Murphy and Truesdale to grant the recommended
bargaining Order here is not based on a lack of au-
thority to do so. Nor is their refusal based on a policy
of never issuing such orders. Rather, the result
reached by Members Murphy and Truesdale turns on
what they themselves term "the facts in this case":
It is true that Respondent's unfair labor practices
have precluded the holding of an unencumbered
election. However, on the facts in this case, we are
persuaded that, in the absence of a prior showing
by the Union of majority support at some point
in the proceeding, it is less destructive of the
Act's purposes to provide a secret-ballot election
whereby the employees are enabled to exercise
their choice for or against union representation,
than it is to risk negating that choice altogether
by imposing a bargaining representative upon
employees without some history of majority sup-
port for the Union."
I As experience dictates, we will continue to balance these competing
interests. It may be that in some case the facts will show that the amo-
sphere has become so poisoned as to preclude any reasonable likelihood of
ever holding an election in which we can place any confidence, even if
extraordinary remedies were employed. [Emphasis supplied. I
Although this passage is hardly a model of clarity,
Members Murphy and Truesdale appear to be draw-
ing a distinction between the unfair labor practices
here, which are elsewhere in the opinion character-
ized as "outrageous and pervasive," and the unfair
labor practices in the "some case" alluded to in foot-
note 11. Apparently, Members Murphy and Trues-
dale are stating that in this case, where the unfair
labor practices have "precluded the holding of an un-
encumbered election," a bargaining order is not war-
ranted; however, in "some case," where the unfair
labor practices have "preclude[d] any reasonable like-
lihood of ever holding an election in which we can
place any confidence ... "a bargaining order would
be warranted.
The main difficulty with this distinction is that it
has no basis in the very portion of the Gissel opinion
relied upon:
While refusing to validate the general use of a
bargaining order in reliance on cards, the Fourth
Circuit nevertheless left open the possibility of
imposing a bargaining order, without need of in-
quiry into majority status on the basis of cards or
otherwise, in "exceptional" cases marked by
"outrageous" and "pervasive" unfair labor prac-
tices. Such an order would be an appropriate
1042
UNITED DAIRY FARMERS COOPERATIVE ASSN.
remedy for those practices, the court noted, if
they are of "such a nature that their coercive
effects cannot be eliminated by the application of
traditional remedies, with the result that a fair
and reliable election cannot be had." 395 U.S. at
613-614.
If this language constitutes a grant of authority64 and
if the policy of Members Murphy and Truesdale is to
exercise that authority in an appropriate case, then
they should issue a bargaining order here because
they themselves have found that this Respondent's
unfair labor practices meet the Gissel test of being
"outrageous and pervasive" such that a fair election
cannot be held. There is nothing in Gissel which dis-
tinguishes between unfair labor practices which have
"precluded the holding of an unencumbered election"
and unfair labor practices which have "preclude[d]
any reasonable likelihood of ever holding an election
in which we can place any confidence."
Not only have Members Murphy and Truesdale
attempted to draw a distinction that finds no support
in Gissel, but also they have failed totally to provide
any standards for determining in future cases whether
an employer's unfair labor practices have "merely"
"precluded the holding of an unencumbered elec-
tion," as is the case here, or whether they rise to the
higher level of "preclud[ing] any reasonable likeli-
hood of ever holding an election in which we can
place any confidence." In this regard, it must be re-
membered that the unfair labor practices committed
in this case, which included the discharge of seven
employees and the ostensible conversion of the re-
maining employees to independent contractors, effec-
tively destroyed the entire bargaining unit. What un-
fair labor practices do Members Murphy and
Truesdale envision as being so much more severe that
a different result would be warranted in another case?
If a bargaining order is to be granted in "some case,"
why not here? These questions remain unanswered.
Whatever the precise meaning of the Murphy-Trues-
dale opinion may be, the one clear point that emerges
is that the essential difference between them and the
dissenters involves a disagreement over neither law
nor policy, but only whether "the facts in this case"
warrant the granting of a bargaining order.
If this Board were to issue bargaining orders in the
absence of proof of union majority status and if the
Board were to adhere to established precedent in dis-
tinguishing between conduct which falls within cate-
gory one and conduct which falls within category
two, the threat posed to employee free choice would
i For the reasons set forth in part 1, supra, do not agree with my col-
leagues' interpretation of the above-quoted language in Gissel
be of monumental proportions.65 For, under these cir-
cumstances, there would be no reason to believe that
the remedy would be limited to the situation pre-
sented here where Respondent's discriminatory con-
duct in violation of Section 8(a)(3) adversely affected
every member of the bargaining unit. As noted in
part I, supra, the Supreme Court held in Gissel that
Sinclair was a category one case even though the in-
dependent unfair labor practices were limited to
8(a)(1) threats.66 During the years since Gissel, there
has been a host of Board cases in which misconduct
substantially less severe than that involved here was
viewed as falling within category one.67 With these
cases as precedent, issuing bargaining orders without
a prior showing of majority status would soon be-
come part of the customary functions of this Agency.
Furthermore, since questions of remedy are solely for
the Board to decide, category one bargaining orders
could be granted in future cases in which such a rem-
edy was neither requested by the General Counsel in
the complaint nor litigated at the hearing.
In conclusion, the new policy announced by my
colleagues today is fraught with danger for the non-
consenting majority of employees in future proceed-
ings who will be subject to its sway. In a case where
four Board Members have decided to abandon a fun-
damental principle of the Act, the words of its author
bear repeating: "Majority rule, with all its imperfec-
tions, is the best protection of workers' rights, just as
it is the surest guaranty of political liberty that man-
kind has yet discovered."
65 In the representation area, where the Board's policy is to conduct an
election on the basis of a showing of less than majonty support for the union
(i.e., 30 percent), we know for a fact that employees vote against collective
representation in more than half of all cases (43 NLRB Annual Report 266
267 (1978)).
" See the text preceding fn. 57, supra. As stated therein, I interpret the
Court's holding in Sinclair as supporting my view that a card majority is a
prerequisitie to the issuance of a bargaining order in category one circum-
stances. In any event, whether a card majority is required, there can be no
doubt that Sinclair was a category one case,
61 For example, in each of the three cases considered by the Board pursu-
ant to the Court's remand in Gissel, the Board included a Sinclair-category
one finding that the employer's conduct was so flagrant and coercive as to
warrant a bargaining order even in the absence of an 8(X)(5) finding. Gissel
Packing Company, Inc., 180 NLRB 54 (1969), enfd. in the absence of an
appearance by respondent 76 LRRM 2175, 64 LC I 11.333 (4th Cir. 1970);
General Steel Products, Inc. 180 NLRB 56 (1969), remanded 445 F.2d 1350
(4th Cir. 1971), bargaining Order vacated and second election directed 199
NLRB 859 (1972), summary judgment 207 NLRB 875 (1973), enfd. 503 F.2d
896 (4th Cir. 1974): Heck's Inc., 180 NLRB 530 (1970).
Subsequent cases in which category one violations were found include Elm
Hill Meats of Owensboro, Inc., 205 NLRB 285 (1973); Royal Aluminum
Foundry, Inc., 208 NLRB 102 (1974); Steel-Fab. Inc., 212 NLRB 363 (1974)
Trading Port, Inc., 219 NLRB 298 (1975); Black Angus of Lauderhill, Inc,
220 NLRB 976 (1975); Pilot Freight Carriers, Inc., and BBR of Florida, Inc.,
223 NLRB 286 (1975); Curtain Matheson Scientific, Inc., 228 NLRB 996
(1977); New York Patient Aids, Inc., d/b/a Guardian Ambulance Service and
American Medical Supplies, 228 NLRB 1127 (1977): John Dory Boat Works,
Inc.. 229 NLRB 844 (1977); Winco Petroleum Company, 241 NLRB 1118
(1979).
1043
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all the parties participated,
the National Labor Relations Board has found that
we have violated the National Labor Relations Act.
We have been ordered to post this notice and to abide
by its terms.
WE WILL NOT coercively question our employ-
ees concerning their union activities.
WE WILL NOT threaten to discharge employees
because of their union activities.
WE WILL NOT threaten to close the plant in
order to prevent union activities among our em-
ployees.
WE WILL NOT create the impression among the
employees that we are surveying their union ac-
tivities.
WE WILL NOT give money bonuses in order to
discourage self-organizational activities among
our employees.
WE WILL NOT discharge or discriminate
against any employees for engaging in concerted
or union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their right to self-organization, to join or
assist International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Milk and Ice Cream Salesmen, Drivers
and Dairy Employees Local 205, or any other
labor organization, and to engage in other con-
certed activities for the purposes of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
WE WILL offer Lawrence Dabus, Jerry Finley,
Walter Kossler, Melvin Lerch, Michael Peden,
Larry Thomas, and Bruce Bach immediate and
full reinstatement to their former positions or, if
such positions no longer exist, to substantially
equivalent positions.
WE WILL pay each of these seven employees
for any earnings they lost as a result of our dis-
crimination against them, plus interest.
WE WILL cancel all arrangements made with
our former employees on April 1, 1974, and
thereafter, whereby they have been working as
ostensible contract haulers or piece-work drivers,
and WE WILL resume, as to each of these employ-
ees, our former method of direct, hourly rated
employment to utilize their services.
WE WILL make whole all of our employees for
any loss of earnings, direct or indirect, they may
have suffered as a result of the changed system of
employment we imposed upon them on April 1,
1974, plus interest.
WE WILL send all our employees copies of this
notice; WE WILL read this notice to all our em-
ployees; and WE WILL publish copies of this no-
tice in local newspapers.
WE WILL, upon request of the Union made
within I year of the Board's Decision and Order,
make available to the Union a list of names and
addresses of all our employees currently em-
ployed.
WE WILL, immediately upon request of the
Union, grant the Union and its representatives
reasonable access to our bulletin boards and all
places where notices to employees are customar-
ily posted.
WE WILL, immediately upon request of the
Union, grant the Union and its representatives
reasonable access to our plant in nonwork areas
during employees' nonwork time in order that
the Union may present its views on unionization
to employees, orally and in writing, in such areas
during changes of shift, breaks, mealtimes, or
other nonwork periods.
WE WILL, if we gather together any group of
our employees on worktime at our plant and
speak to them on the question of union represen-
tation, give the Union reasonable notice and give
two union representatives a reasonable opportu-
nity to be present at such speech and, upon re-
quest, give one of them equal time and facilities
also to speak to you on the question of union
representation.
WE WILL, in any election which the Board
may schedule at our plant and in which the
Union is a participant, permit, upon request by
the Union, at least two union representatives rea-
sonable access to the plant and appropriate fa-
cilities to speak to you for 30 minutes on working
time, not more than 10 working days, but not
less than 48 hours, prior to the election.
WE WILL apply the four paragraphs immedi-
ately preceding this one for a period of 2 years
from the date of this notice, or until the Regional
Director of the National Labor Relations Board
certifies the results of a fair and free election,
whichever comes first.
All our employees have the right to join Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Milk and Ice
Cream Salesmen, Drivers and Dairy Employees Lo-
cal 205 or any other labor organization or to refrain
from doing so.
1044
UNITED DAIRY FARMERS COOPERATIVE ASSN.
UNITED DAIRY FARMERS COOPERATIVE As-
SOCIATION
APPENDIX B
DECISION AND DIRECTION
On August 22, 1974, Administrative Law Judge Thomas
A. Ricci issued his Decision in this proceeding.' Thereafter,
Respondent and General Counsel filed exceptions and sup-
porting briefs,2 and Charging Party-Petitioner filed a brief
in support of the Administrative Law Judge's Decision.3
The Board has considered the record and the Adminis-
trative Law Judge's Decision in light of the exceptions and
briefs and, with the exceptions noted below, has decided to
I On September 25, 1974, he issued a "Correction" to his Decision.
2 Respondent also submitted a motion to reopen hearing. In support of its
motion, it asserts that it has been notified by certain parties with which it has
contracts that if the Administrative Law Judge's Decision is implemented,
and these contracts canceled, as recommended in the Administrative Law
Judge's Order, they will bring legal action against the Respondent for dam-
ages. General Counsel and Charging Party-Petitioner submitted a "Reply in
Opposition to Respondent's Motion To Reopen the Record."
We deny Respondent's motion to reopen the record on the ground that,
even assuming all that Respondent asserts in support of its motion were true,
it would not require that a different result be reached on the merits. See Sec.
102.48(dXI) of the Board's Rules and Regulations, Series 8. as amended. As
the Supreme Court said in J. 1. Case Cornpany v. N.LR.B., 321 U.S. 332, 337
(1944):
Individual contracts, no matter what the circumstances that justify
their execution or what their terms, may not be availed of to defeat or
delay the procedures prescribed by the National Labor Relations Act
looking to collective bargaining, nor to exclude the contracting em-
ployee from a duly ascertained bargaining unit; nor may they be used to
forestall bargaining or to limit or condition the term of the collective
agreement. "The Board asserts a public right vested in it as a public
body, charged in the public interest with the duty of preventing unfair
labor practices." National Licorice Co. v. N.LR.B., 309 U.S. 350, 364
(1940). Wherever private contracts conflict with its functions, they obvi-
ously must yield or the Act would be reduced to a futility.
See also James E. Adams, er al. v. The Budd Company, 349 F.2d 368 (C.A. 3,
1965); Dosds v. Local 1250, Retail, Wholesale Department Store Union of
America, CIO, 173 F.2d 764 (C.A. 2, 1949).
3 The following corporations filed motions to intervene: Hefty Milk Haul-
ers, Inc.; T.M.C. Milk Haulers, Inc.; W. R. Davis Milk Hauling, Inc.; S.S.S.
Haulers, Inc.; and G and M Milk Haulers, Inc. In support of their motions,
each of the corporations asserts that it has a contract with the Respondent to
haul milk, which would be adversely affected if the Administrative Law
Judge's Decision were adopted and implemented. General Counsel and
Charging Party-Petitioner submitted reply briefs in opposition to the mo-
tions to intervene.
We hereby deny the motions to intervene for the following reasons:
Though the corporations seeking intervention do so on grounds that certain
of their "contractual" rights may be abrogated without due process of law,
the Administrative Law Judge found, and we agree, that these "contracts"
merely continued the employee status previously existing. In these circum-
stances, we believe the employee-drivers ostensibly converted to "contrac-
tors" were not necessary parties to this proceeding. See, e.g., NLR.B. v.
Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 271 (1938). Moreover,
none of the parties seeking intervention proffers any additional facts which
might affect the outcome of the unfair labor practices alleged in this case.
Gerald Sklar and Alfred Goldman. Co-Partners d/bla Michigan Advertising
Distributing Company, 134 NLRB 1289, 1290, fn. 2 (1961); and since the
position of the parties requesting intervention is the same as that of the
Respondent, and they have made no showing that they could adduce evi-
dence beyond that already offered by Respondent, permitting intervention
could only serve to further delay the prompt resolution of this controversy.
Semi-Steel Casting Co. v. N.LR.B., 160 F.2d 388 (C.A. 8, 1947), cert. denied
332 U.S. 758.
affirm the rulings, findings,' and conclusions' of the Admin-
istrative Law Judge. 6
Although we are hereby adopting the Administrative
Law Judge's unfair labor practice findings and his rulings
on challenged ballots7 as our own, we have decided to defer
ruling on his recommended remedial order and recom-
mended disposition on objections to the election until such
time as the Regional Director has opened and counted the
seven challenged ballots, and served on the parties a revised
tally of ballots. We deem it advisable to take this proce-
dural route since the results of the revised tally may make it
unnecessary to consider the Administrative Law Judge's
recommendation that a bargaining order be a part of any
remedy which we issue in this case.
Accordingly, we shall direct the Regional Director to
open the seven challenged ballots and to serve on the par-
ties and the Board a revised tally of ballots. After issuance
of the revised tally of ballots, we shall determine the appro-
priate remedial measures which Respondent will be ordered
to take in order to effectuate the purposes of the Act.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Drv Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
5 Respondent asserts that the Administrative Law Judge was biased and
prejudiced against it. We have carefully reviewed the record and the Admin-
istrative Law Judge's Decision and find nothing therein which would support
such a charge.
6 Respondent's request for oral argument is hereby denied, as the record,
exceptions, and briefs adequately present the issues and the positions of the
parties.
' The Administrative Law Judge recommended that the challenges to all
seven challenged ballots be overruled. No exceptions were filed to his recom-
mendations with respect to six of the challenges, and, in the absence of
exceptions, we pro forma adopt his recommendation to overrule those chal-
lenges. Respondent excepted to the Administrative Law Judge's recommen-
dation to overrule the challenge to the ballot of Bruce Bach, whose discharge
prior to the election was alleged and found by the Administrative Law Judge
to have been in violation of Sec. 8(aX3) of the Act. Since we are in agreement
with the Administrative Law Judge that Respondent violated Sec. 8(aX3) of
the Act in discharging Bach, we accordingly find that he was eligible to vote
in the election and adopt the Administrative Law Judge's recommendation
to overrule the challenge to his ballot.
DECISION
STATEMENT OF THE CASE
THOMAS A. RccI, Administrative Law Judge: This is a
consolidated proceeding joining complaint Case 6-CA-
7135, et al.-with representation Case 6-RC-6682. The first
charge was filed on November 27, 1973, by Bruce Bach, an
individual, and additional charges were filed on January 23
and March 21, 1974, by International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Milk and Ice Cream Salesmen, Drivers and Dairy
Employees Local Union 205, herein called the Union. The
charges are against United Dairy Farmers Cooperative As-
sociation, herein called Respondent or the Company. A fi-
nal consolidated amended complaint issued on May 20,
1974. In the representation case a petition for an election
was filed by the Union, and a Board-conducted election
was held on January 8, 1974; the Board thereafter ordered
1045
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a hearing upon the Union's objections to the Company's
conduct allegedly affecting the election and upon the ques-
tion of certain challenges. The two cases were joined for
single hearing which was held at Pittsburgh, Pennsylvania,
on various dates between June I 11 and 26, 1974. The issues
are whether Respondent violated Sections 8(a)( 1) and (3) of
the Act and whether it improperly interfered with the con-
duct of the election. Briefs were filed by all parties.
Upon the entire record and from my observation of the
witnesses I make the following:'
FINDINGS OF FACT
I. HE BUSINESS OF THE COMPANY
Respondent is a Pennsylvania corporation with its princi-
pal office in Pittsburgh, Pennsylvania, and is engaged in the
processing and retail sale of milk and other dairy products.
During the 12-month period preceding issuance of the last
amended complaint, its gross sales exceeded $500,000. Dur-
ing the same period Respondent purchased directly from
out-of-state sources goods and materials valued in excess of
$50,000. 1 find that Respondent is engaged in commerce
within the meaning of the Act, and that it will effectuate the
policies of the Act to exercise jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
I find that International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Milk
and Ice Cream Salesmen, Drivers and Dairy Employees
Local Union 205, is a labor organization within the mean-
ing of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
The commercial business of Respondent can be said to
operate in three identifiable sections. Large quantities of
raw milk are brought to its processing and storage plant in
the city of Pittsburgh by independent contract haulers; (1)
one group of direct employees processes the milk, bottles it,
and maintains the building and machinery; (2) a second
group of employees-drivers and helpers-drive trucks to
deliver the milk to 49 stores owned by Respondent which
are dispersed throughout many towns; and (3) clerks and
other employees work in the many stores handling the milk
and other dairy products and selling it to the public. This
case arose when the second group-totaling about 30
men-in November 1973 started a self-organizational cam-
paign aimed at establishing Local 205 of the Teamsters as
their collective-bargaining agent. The Union filed its peti-
tion for an election on November 26. The day before, Sun-
day, (his day off), Bruce Bach, a driver for almost 2 years
and one of the principal activists in the organizational cam-
paign, received a call advising him that he was summarily
discharged. The complaint alleges that Bach was dismissed
I A motion by the General Counsel, to which no opposition has been
received, to correct two errors in the transcript, is hereby granted.
in retaliation for his union activities, and that Respondent
thereby violated Section 8(a)(3) of the Act.
The results of the union election held in January were
inconclusive, standing 10 to 9 in favor of the Teamsters, but
with pending challenges affecting the eventual outcome;
there were also the Union's objections. While these matters
were being investigated by the Board's Regional Director,
in March 1974 Respondent informed all of the drivers and
helpers involved in the election case that as of the end of
the month, March 31, not one of them would remain as an
employee of the Company. Ernest Hayes, president of Re-
spondent and direct manager in full control of the entire
business, told them that all the work of trucking the milk
from the plant to the 49 stores would thereafter be done by
independent contractors. He offered his employees an op-
portunity, if they wished, to go into business for themselves
as contract haulers.
In any event, changes were made on April 1. Six employ-
ees showed no interest in changing status. Each of these
employees was discharged. The others continued to do the
same work they had always done, with virtually no change
in their method of performance insofar as the actual dis-
charge of duty is concerned. Their compensation changed;
they no longer received fringe benefits-holiday pay, vaca-
tion benefits, and hospitalization insurance. As will appear
more precisely below, they were paid and are still being
paid on a strictly piecework basis instead of by the hourly
rate previously enjoyed.
The complaint alleges that the men who were fired on
April I were discharged as part and parcel of a determina-
tion by Respondent to avoid bargaining with the Union
with respect to any employees, and that in each instance the
men suffered discrimination at the hands of the Employer
in violation of Section 8(a)(3) of the Act. It is also a conten-
tion of the General Counsel that the men who continued to
drive trucks and deliver milk to the stores never ceased
being direct employees of the Company, albeit paid on a
different basis, and that as their compensation-whether in
reduction of direct money payments or loss of indirect
benefits-was lessened in consequence of the change of sys-
tem, each of them also suffered illegal discrimination in vio-
lation of Section 8(a)(3). It is an alternative argument of the
prosecution and of the charging Union that even assuming
the format of the paper structure of the drivers' changed
status as arranged in formal documents by Respondent's
lawyer and its accountant should indicate independent con-
tractor position of the employees, the entire scheme reflects
only implementation of an illegal plan to avoid the statu-
tory duty to bargain collectively and must therefore be nul-
lified and the drivers restored to direct employees status. In
this light the complaint alleges that Respondent violated
Section 8(a)(3) with respect to all of the employees who
were at work at the end of March.
Respondent denies the commission of any unfair labor
practices. As to Bruce Bach, it defends on the affirmative
ground that he had long been an undesirable employee and
was discharged only because of his incompetence and mis-
behavior. With espect to the dismissal of all the employees
as of March 31, Respondent insists that all it did was imple-
ment a longstanding plan to use contract haulers in place of
direct employees for delivery of the milk, that the change of
1046
UNITED DAIRY FARMERS COOPERATIVE ASSN.
system was effectuated at that time for "business" or eco-
nomic reasons, and that the current union activities had
nothing to do with its action. It is also the position of Re-
spondent that the people who are now delivering its milk
are either self-employed businessmen independent con-
tractors or employees of the drivers who are in business for
themselves.
B. The Nature of the Testimonov
Some preliminary comment on the nature of the testi-
mony, for the most part as offered by Respondent, is in
order. Three major questions are presented for decision. (1)
Was Bruce Bach discharged because he tried to bring the
Union into the Company? His outstanding activities and
the timing of the dismissal strongly support the complaint
inference of such illegal motivation. When to this is added
the character of the affirmative defense of discharge for
cause-a picture of incredible destruction of property and
wanton misbehavior it seems clear that what must really
be evaluated is the affirmative defense. (2) Was the reason
for the change of delivery arrangement effectuated on Anril
I-regardless of whether it turned the drivers into piece-
work employees or into outright contractors-inspired by
economic considerations or by illegal motives? On this
question the direct testimony of President Hayes, the prin-
cipal manager and spokesman for the Company, is virtually
determinative. And, (3) are the remaining drivers today in-
dependent contractors or are they still simply employees? If
the answer to question two is affirmative-a findng that the
employees' conditions of employment were illegally
changed to their disadvantage-the third question is
mooted. In that event, all the drivers-both those who were
directly discharged and the rest-must be returned to their
former status precisely, and it is immaterial what the status
is from which they must be removed.
There is an inherent implausibility in much of the testi-
mony offered by witnesses for Respondent, both employees
and management representatives. In some instances their
factual assertions were such that no rational person could
believe them-what the Board has at times called a death
wound in the testimony itself. In others, the oral testimony
was in direct conflict with documentary evidence placed
into the record by Respondent itself. In still other situ-
ations-very important ones-the defense witnesses virtu-
ally gave each other the lie.
For example, on March 14 and 25, 1974. President Hayes
called a meeting of all drivers where he delivered a pre-
pared statement and answered questions. Taped records
were made of every word he spoke, and at the request of
Respondent, the tapes and typewritten transcripts also pre-
pared by the Company, were received in evidence. His mes-
sage could not be clearer. He told them that beginning on
April I the Company would no longer have any employees
of its own, that all the milk would be delivered by indepen-
dent contract haulers. He said that they could bid for the
business if they wished. Six men who did not offer to par-
ticipate in the new system were released at the end of
March, with notices reading in part: "Because ... you are
not interested in acquiring said operation and ownership in
a truck delivery route ... your employment is terminated."
Respondent called a number of employees in defense, driv-
ers who went along with the new arrangement: its purpose
clearly was to create the impression that the contract
method was something the drivers themselves desired and
not at all a change forced by the Company. As to a number
of these witnesses, it proved impossible to draw a positive
admission that they were told that the alternative to the
new system was outright discharge. Bernard Yagle refused
three times to answer the direct question. William Griffith
gave a flat "no" when asked did he know that he would
otherwise lose his job. William Davis said: "I figured. but I
wasn't sure." Ronald Ranker said: "I knew . .most likely
I would not be working." Counsel for Respondent asked
Phillip Thompson did anyone "force" him into acceptance
of the arrangement; the answer was that the driver did it
because "I felt I could make more money." Only one man,
Vernon Witt. a minister of the Gospel, responded honestly
that he knew that he would otherwise have no job with the
Company. In the face of the documentary proof of what
Hayes told the men, all this served only to discredit the
defense generally.' It also strongly indicates how pervasive
and persistent is the effect now of the unfair labor practices
committed by the Company.
A number of witnesses for the General Counsel testified
that they heard Hayes say the plant would be closed before
Respondent would deal with a union. The answer denies
this allegation of the complaint. The first employee witness
called in defense was Philip Thompson. an old driver now
on the new type of route. Asked on direct examination had
any supervisor said that the plant would close "if a union
would come into the plant," he answered: "Mr. Ernest
Hayes said that if the union come in that they would have
to close the plant. This is the words that he said and that is
all that is all that [sic] he said. He said that if Union, if it got
into the plant, they would have to close the plant." One
employee witness after another later called by Respondent
gave a direct negative to the same question. Finally, Ernest
Hayes testified:
Q. Now, you heard the testimony of a Mr. Thomp-
son. He testified that you talked about plant closure, is
that correct?
A. Mr. Thompson came into my office, and he
asked me what would become of the business if the
union won the election. And at that time, I told him
that our business could not survive under the restric-
tion of the union contract. And pamphlet 31 and 32
restricts a dairy for the amount of milk that they can
haul, which means 14,000 gallons a month is all that
you're allowed to haul on a truck, and our trucks
hauled anywhere from 100 to 120,000 gallons a month.
Now, we sell milk on a large volume, and it was a very
small profit, and that's what I told him. What other
meaning he took out of it. I don't know."
If this testimony is put together with Hayes' prepared
statement to everyone in March, after the Union had
gained a temporary edge in the January balloting, that
2 In his bnrief counsel for Respondent paraphrases the complaint as alleging
that "... Hayes wained its employees that, unless they waived their nght as
employees under the act by entenng into the so called purported 'Indepen-
dent Contractors' agreements they would be discharged." There can be no
rational explanation for counsel's next immediate statement that "This
change [sic] is a patent falsehood."
1047
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there would in no circumstances be any employees left by
April I. it can only be taken as his admission that he did
threaten to close the plant in retaliation if the employees
held firm in any prounion resolve. This means, of course.
that the witnesses who proceeded Haves on the stand lied.
and that Respondent. which called them, knew that they
would testify dishonestly.
Among the many witnesses called by Respondent to
prove that Bach (the union activist), had long been a worth-
less employee was Mickey Burd, who brings raw milk rom
the farms to the dairy plant in large trailers. He said that
one day- he could not remember the month or the names
of others who were present he saw Bach take a drink of
whiskey in the office, and that he reported this to Richard
Thomas, one of the company directors. Burd said that he
reported the incident because "this is not good for busi-
ness." The witness then added that he had just arrived at
the plant, was about to drive away again, and drank the
whiskey himself just as Bach did. Can this story conceiv-
ably be believed from a man who admits drinking on the
job himself?
Another witness called to defame Bach was Luther Elkin.
who said that he owns a number of trucks and does a sub-
stantial business hauling milk to the dairy. One of the many
deliberate acts of destruction that he attributed to Bach
occurred, he said, "late in the fall of 1973." "... taking the
hook that they slide the cases around ... they used it to pull
cases and one thing and another, he was taking it, snapping
the tops or necks off of the bottles. ... Taking one of these
steel hooks and snapping the necks off of the bottles, glass
bottles in the cooler .... Breaking them off... Q. Would
there be any business purpose in breaking bottles with a
steel hook? A. No. not as I could see.... Q. (By Mr. Valow)
How many bottles, if you remember, were broken by Mr.
Bach? A. Afterwards I walked back to-there were at least
24 bottles that the tops were broken off." Elkin continued
that two or three times later he saw Bach ". . . did the same
thing, plus threw bottles against the wall and broke them.
. . .Broke the necks off them." The last such occasion, he
said, was about I week before Bach's discharge. He ex-
plained that Bach did this with an iron hook used to pull
stacks of cases of bottles. Asked had Bach really used the
hook to do damage, he answered: "Two with hook and at
the same time he was using the hook, throwing them
against the wall." Elkin added that deliberate destruction of
this kind "bothers me very much. It disturbes me...." But
without any attempt at reconciliation, he said that he did
not report the first offense to anyone because "I ... didn't
think too much of it .... "
Elkin went on to describe Bach's driving habits in equally
extreme language, seemingly with no sense of proportion.
He sounded very sure of everything. But, as the General
Counsel points out in his brief, the witness held back on the
simplest questions asked him-how did he happen to see all
this by Bach, what was he doing at the plant so often, what
is his relationship with Respondent? His answers must be
read to be believed. He insisted that he had no interest in
this Company, had no position of any kind, was in no sense
an investor, and was a stranger doing business as a de-
tached milk delivery contractor--simply a very well-to-do
man.' On the lace of his total testimony, this man cannot be
believed.
One more example of unconvincing testimony will suffice
at this point. Hayes testified: ". .. I have the final say on the
hiring of someone, if they are needed. I hire them; if some-
one needs to be fired, I have the authority to fire them." He
is the manager and operational head of the entire dairy. In
the winter of 1970-71 the Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL CIO, at-
tempted to organize the 125 sales clerks Respondent em-
ploys in its retail stores. As found by the Board in an earlier
unfair labor practice proceeding against this Company
(United Dair Farmers Cooperative Association), 194 NLRB
1094, 1095 (1972) enfd. 465 F.2d 1401 (3rd Cir. 1972), Re-
spondent, in violation of Section 8(a)(3) of the Act, unlaw-
fully discharged the "leading protagonist" in that union
movement, a lady who had signed up 18 clerks. The Board
also found there that President Hayes, at a banquet for all
the store clerks, told them that "He would fire any girl who
had signed a Union card.... He would franchise the stores
if a union got in, and we would all be out of a job." Appar-
ently the threat sufficed there, for the union movement
died. Hayes was ordered to reinstate the lady and stop dis-
charging people or making threats like that.
Almost the last witness for Respondent was Richard
Thomas. a member of the board of directors; the board, he
said, meets three or four times weekly in the plant. The
burden of his testimony was that Hayes had nothing to do
with the decision to discharge Bach. He detailed how on
November 25 there was a meeting of directors in the plant.
while Hayes was at home or elsewhere, but the meeting was
unconcerned with the business. Thomas continued that
among other things he brought up the subject of Bach's
general delinquencies of the past. that he told the others
many things he had heard, and that after discussing the
matter they voted to fire the man. Thomas closed with say-
ing that someone then telephoned Hayes to inform him
about the decision. He also added that he could remember
From the record transcript:
Q. (By Mr. Surprenant) Was there ever any times when Mr. Ernest
Hayes was not at the plant that you took over the operation of the
plant? On his behalf
A. I've never taken over the plant on his behalf, no.
Q. Have you ever worked in the plant when Mr. Hayes was away?
A. I've been there, yes.
Q. What were you there for?
A. To help out.
Q. Who were you helping out?
A. United Dairy Farmers.
Q. Did you get paid for this?
A. No sir.
JUDGE Ricc: What were you doing? How were you helping out?
THE WITNEss: Anything I could to help them.
JUDGE RIC(I: You weren't sweeping the floors?
THE WITNESS: I have.
JUDGE Ricci: Who asked you to stay there?
THE WITNESS: Of my own free ....
JUDGE Ricc: No one asked you, and you thought you'd help out?
THE WITNESS That's right.
JUDGE Ricci: You have your own business elsewhere?
THE WITNESS: Yes.
Q. (By Mr. Surprenant) How often have you done that?
A. On many occasions.
1048
UNITED DAIRY FARMERS COOPERATIVE ASSN.
no other time his group had ever before "decided to termi-
nate someone." Hayes followed Thomas to the stand as the
last defense witness. He started by saying that Bach "was
fired by the Board of Directors." and that when he heard
about it he made no comment. He then added, quite am-
biguously, "the Board of Directors decided to fire him and
made the decision to fire him before I made my decision."
On cross-examination Hayes then testified that he had been
at the plant on Saturday and had met with some members
of the board of directors, that he talked with them about an
accident Bach had had the day before, that they discussed
the discharge of the man, that a member asked him "why
didn't I fire him," and that he then said to them "well,
that's what will have to be done." His final admission was
that the committee asked him to fire Bach on Saturday!
The answer to the question of why Bach was discharged
may call for an inference, a conclusion to be drawn from all
the facts of record pertaining to that one issue. But on the
question of whether Respondent's principal witnesses can
be believed in this proceeding, the foregoing unreconcilable
testimonies, pitting the president against a director of his
Company, plainly marks them as not credible. The patent
attempt to remove Hayes from the active arena in order to
avoid the inescapable thought that he repeated the same
offense of which he had been found guilty contributes
largely towards casting a shadow of doubt upon the entire
defense.
C. Discrimination in Employment Against All Drivers on
March 31, 1974, 8(a)(3) Violations
1. Employee v. independent contractor status
Of the 30 or so drivers and helpers on Respondent's pay-
roll in March 1974, 6 were discharged by the end of the
month. The rest continued doing the same work that they
had done before. I find that although the method of pay for
them changed and even, perhaps, their hours of work, they
remained employees of Respondent and did not become
independent contractors or "businessmen on their own" as
both management agents and some of the drivers them-
selves cavalierly used the conclusionary phrase at the hear-
ing.
The arrangement that was put in effect as to each of
them, down to the smallest detail, was precisely the same.
Some companies-each having the name of one or more of
the drivers-were organized as Pennsylvania corporations.
The milk hauling contracts then signed between each of
these companies and Respondent are in every case precisely
the same-in infinitesimal detail. The formal incorporation
papers were prepared by Mr. Valow, Respondent's lawyer,
during the change of system before the hearing in this case.
None of the men paid him for his services. Five driver wit-
nesses called by Respondent said that all the records and
bookkeeping for their five separate corporations are main-
tained by an accountant firm called Quattrone. Mr. Phillip
Quattrone of the accountant firm, testifying for the defense,
said that his firm does the bookkeeping for four of the
group; he was concealing something. This accountant firm
has also long been in charge of the records of Respondent.
None of the drivers or the new corporate entities owns
any of the trucks being used to deliver the milk. The trucks
are all rented from a corporation called UDF Leasing Cor-
poration. This is a company owned by a large number of
farmers whose raw milk goes into the dairy. The farmers, in
greater number than those who chose to invest money in
the leasing corporation, are all owner-members of Respon-
dent's dairy cooperative. Before the change of April I, Re-
spondent used to lease the trucks from the same leasing
company; it is these trucks that are being driven by the
drivers today. The three-cornered contractual arrangements
formally signed by Respondent, the newly formed corpora-
tions, and UDF Leasing Corporation, provide payment of
18 cents per case of milk or other dairy products delivered
from the dairy to the stores. The agreements also provide in
every instance that of this amount 4 cents per case goes to
the leasing corporation for use of the trucks. The drivers are
in no sense responsible for these trucks-be it for mainte-
nance, repair, insurance, or gasoline and oil used. They find
the trucks loaded at the dock early each morning ready for
driving, bring them back with empty bottles during the day,
help put on the second load, and make another run in the
afternoon or evening-all this exactly as they had always
done before April 1.
A first inference that is inescapable from these basic facts
is that the drivers today did not "independently" go into
business for "themselves." Hayes kept repeating that he in-
vited "bids" from all of them, and that each one made up
his own mind what to do. The truth must be otherwise.
Logic and human experience dictate instead a conclusion
from this extraordinary uniformity in what everyone did
and is doing that the entire picture is the product of a single
mind-centered in the management of Respondent. All of
these people were told what to do; they were given no
choice in the matter. This finding is compelled by Hayes'
own words when he left no doubt in their minds during
March; it was either bid or be out of a job. Any indepen-
dence on their part would at least have resulted in some
meaure of variance-however slight-in the collective pic-
ture that then emerged from the action of them all. When to
this is added the fact that Respondent paid for all expenses
and had its own accountant keep track of the money pay-
ments for work-albeit on a different basis-there can be
no other view of the case.
There is more to prove the point. No one invested I cent
in any of these "independent businesses." No one stands
the risk of incurring any financial loss no matter what the
future holds. Nor is there any danger that they might fall
behind in their 4-cent-per-case rental obligation to UDF
Leasing Corporation, for, at least as to some of the corpora-
tions of which witnesses spoke, the paycheck-the full 18
cents-goes from Respondent to the accountant, who for-
wards the 4 cents to the leasing company without the
money ever going into the hands of the drivers. One man
said that he and a fellow official in one of the new corpora-
tions had a stamp made with their signatures, and that the
accountant uses it in his office to sign the checks. Another
man said that the same accountant signs the checks for his
corporation. Another man, John Yagla, said: "I wouldn't
say that we own shares of the corporation at the present
time, that has not been set up yet. As we accumulate the
money in our corporation, than we'll set it up on a share
1049
D[)EISIONS OF NATIONAL LABOR RELATIONS BOARD
basis." But, as is absolutely clear, there is no money that
can accumulate anywhere in anyone's name. It would exalt
form over substance to say that these people are indepen-
dently in business for themselves.
The actual driving of the trucks is the same as in the past.
Second runs the same day are determined by the needs of
the stores being serviced, depending on the volume of sales
during the day. Some of the new style drivers said that
messages from the stores for more needed milk are brought
back to the dairy by themselves, or that they are reached
personally from the stores by telephone. This was a sugges-
:ion that Respondent leaves this important matter of ade-
quate stocking of the stores to the drivers. But again, from
the credible testimony of Mr. Witt: ". .. if;, a store runs out
of milk, they call in and it is placed on the board and then
perhaps an employee of the Dairy will tell me that one of
my stores is out of milk."
If there remains any doubt of the direct employee status
today of all these drivers, one final truth will dispel it.
Counsel for Respondent had one "independent contractor"
after another tell about how he hires other drivers who are
his employees and who have nothing to do with Respon-
dent. These others are also, in almost all instances, them-
selves former drivers of the dairy. In fact, of the total com-
plement of people who now deliver to the stores, almost
half simply drive and work but took no part in the paper
arrangement now said to have converted the rest into busi-
nessmen. The record shows clearly, on the varying testimo-
nies of all witnesses including the accountant who keeps
the records for both the dairy and the drivers--that all driv-
ers whether called businessmen or employees are paid
14 cents per case of milk or other dairy products which the),
deliver. A small fraction of the 14 cents-some said 10 per-
cent, others said 2-1/2 cents-is deducted by the account-
ant to pay for workmen's compensation insurance, FICA
deductions, etc. But all the drivers are treated alike; the
records of how many cases of milk each one of them deliv-
ers every 15 days are accumulated by the accountant, and
he sends each man his individual payment on a purely
piecework basis. There is absolutely no distinction between
the so-called incorporating offices and their so-called em-
ployees.
No amount of lawyer language, however often repeated
either in contractual documentary form or orally through
repetitive testimony, can talk away the realities set out here.
The drivers working for Respondent today and delivering
milk to its stores are direct employees of that Company.
Unlike their conditions of employment before April 1,
1974, they no longer receive vacation pay, holiday pay, and
hospitalization insurance benefits. They have therefore all
suffered and are continuing to suffer today a discrimination
in employment at the hands of Respondent. Some of them
said that they like the arrangement; some said that they
make more money now. Such questions were not really ex-
plored at this hearing, for the answers more appropriately
pertain to the compliance stage of proceedings of this kind.
It may very well be that some drivers take home more cash
each week, but it may also be true they work longer hours
than in the past. Piecework employees have been known to
drive themselves beyond human endurance or even per-
sonal safety.
2. Economic or anitunion motivation?
The affirmative defense to the complaint allegation that
this change of status in the drivers-and the consequent
discrimination in their conditions of employment- was
aimed at avoiding the statutory duty to bargain with the
Uinion is that it was brought about instead by "business" or
"economic" considerations. The evidence does show that
there was talk of contracting out the milk delivery as far
back as 1970 and 1971; indeed from the very first days of
the dairy's existence in the late 1960s, it was mentioned at
several meetings of the board of directors over the years.
The last definitive talk on this subject came in summer
1973, when in July Respondent had an advertisement
placed in the city newspaper inviting interested persons to
discuss the possibility. Only one company appears to have
shown enough interest to call on Hayes. Nothing came of
this.
Respondent's explanation of what provocative "eco-
nomic" consideration it was that dictated the move taking
the word economic in its conventional sense is unconvinc-
ing, if only because of the internal inconsistency of the total
story. The volume of Respondent's business skyrocketed in
1973. Hayes testified that the volume of sales "practically
doubled" between September 1973 and February 15, 1974,
and he added that it has continued to rise since. He also
spoke of a spectacular increase in the profits. This he said
primarily to explain away an unprecedented cash Christ-
mas bonus that Respondent gave its employees in Decem-
ber 1973, shortly after the Union filed its petition for an
election. And yet, when telling the employees in March that
the change of status was inevitable, he justified it on the
grounds of company "survival." At another point in his
testimony Hayes said that the move had to be made be-
cause, what with the increase in volume, it was becoming
too difficult to keep the stores adequately stocked with milk.
Why or how the same group of drivers, even fewer in num-
ber than before, using the same trucks and making the same
runs but paid on a different basis could get more milk to the
stores, he did not even attempt to explain. At one point
Hayes even said that to have continued the old system
would have required at least 50 trucks. But there has never
been an increase in the number of trucks used.
Still another economic explanation offered was that the
farmers who had invested in UDF Leasing Corporation did
not care to invest more money. But none of the new drivers
has parted with or is going to invest a single dollar in the
delivery function. Moreover, UDF Leasing Corporation it-
self leases some trucks from Ryder and then in turn leases
them to the new drivers, exactly as it used to lease Ryder
trucks to Respondent directly. Finally, for the leased trucks
including those coming from Ryder, the charge to the driv-
ers is 4 cents per case delivered regardless of distance
driven; some drivers use the trucks only 40 or 50 miles to
deliver such cases, while others drive as much as 100 miles.
In short, there is no substance in any of the economic pre-
tenses advanced by Respondent.
There is no need for speculation as to the real reason for
the change, for Hayes' own testimony really states it clearly
enough. He spoke of certain "pamphlets" issued by the
Teamsters which favor limiting the amount of milk a single
truckdriver should deliver within any I month. He said that
1050
UNITED DAIRY FARMERS COOPERATIVE ASSN.
he could present these pamphlets to prove his point, but he
did not. In any event, part of his real defense is already set
out above, in explanation of why the employees may have
formed the impression that he threatened to close the plant.
He recalled telling Thompson "our business could not sur-
vive under the restriction of' the union contract." Hayes
later expanded on this explanation of his total reaction to
the union movement. He said that his trucks "hauled 3
times" as much as the union pamphlet suggests. And then.
towards the end of his testimony, came the following: "Q.
(By Mr. Surprenant) Is this the reason that you didn't want
the union amongst your truckdrivers? A. This is the reason
why our business cannot exist because of the restriction the
union would put upon the amount of milk that we would be
allowed to haul."4
Clearly, it is a belief of this Respondent that the proper
interest of an employer in keeping its profit high and in
increasing them with time is justification enough for resort-
ing to any steps to put a stop to union activities among its
employees. This is precisely what it did in 1971 through
Hayes again-to curb organizational activities among its
store employees. This is akin to what it was ordered by the
Board and by the court to stop doing in Case 6 CA-4123
(July 30, 1968), wherein Respondent entered what
amounted to a "nolle contendere" plea to the complaint.
This is what Hayes repeated here. The Company miscon-
ceives the basic purport of the law. An employer need not
yield to the economic demands or concepts of any bargain-
ing agent, but it is required to recognize and to fairly con-
sider the voice of the majority representative of its employ-
ees. I find that the change of system put in effect by
Respondent on April 1, 1974, including the outright dis-
charge of six employees,5 and the change of conditions of
employment imposed on all the rest constitutes with respect
to each and every employee a violation of Section 8(a)(I)
and (3) of the Act. Blue Cab Company and lillage Cab
Company. 156 NLRB 489 (1969)., enfd. 373 F.2d 661
(D.C.Cir. 1967).
D. Coercive Statements and Interrogations,' 8(a)(l)
Violations
A number of witnesses testified about intimidating state-
ments made by management agents and of being ques-
tioned as to their union activities. Larty Dahns, one of the
men discharged in March, had received a supply of union
cards from Bruce Bach and had distributed them among
the men. He said that on November 21 Hayes invited him
into the office to talk about a $1,000 bond Dahns had in-
vested in the cooperative. He quoted Hayes as telling him
that if the dairy ever closed it would never reopen. Haye's
version of this talk is that the driver came to ask if he could
' Counsel for Respondent asked Hayes to explain why it was that he did
nothing about changing the system at the time of the newspaper adsertise-
ment in summer 1973. He answered that the reason was because he wanted
to give his employees "first choice." Eight months passed before he even
spoke a word about it to the men.
The following five drivers were handed written discharge notices: Law-
rence Dahns, Jerr) Finley, Walter Kossel Melvin Lerch, and Michael Ped-
en. The sixth man-- Larry Thomas. aware that his job was finished by March
31, left a few days earlier to accept anotherjoh His departure was neverthe-
less a discharge.
have his money back, and that the answer was no, plus a
statement that if the plant ever closed it would not reopen
because of' municipal curfew regulations. Dahns also testi-
fied that a few days after the January 8. 1974. election,
Craig Moore, the night foreman and admitted supervisor.
told him "Your damn brother and you trying to get the
Union in UDF." "... he went on to say that damn union
will not get in because they had the election won before
they even voted."
Jerr' Finley, testified that between Christmas and New
Year's Day Hayes called him into the office to say: "... if
the union goes in, the farmers would come down and smash
some heads, the farmers would never let the union in. they
would close the plant down first, and start another plant
under a new name...." He said, "the Teamsters caused the
other dairies to go bankrupt. and the Teamsters never did
anything for the farmers, and they would be no good for the
organization, the United Dairy Farmers." Finley also re-
called that a few weeks after the election Moore asked why
he had voted in favor of the Union. and when the employee
asked how the foreman knew. Moore answered: "he knew
the ten guys who voted for the union," and "... before they
would let the union come in that they would close down the
plant and open another plant under a different name."
Larry' Thomas also testified about a late November con-
versation with Hayes in which the president asked had he
yet signed a union card. Pretending, the employee answered
"no," and Hayes then added that he knew the Union was
organizing but that: ". . . if it gets in, you know what will
happen to the guys who does ... if the union does get in, he
said that he would have to close down, or subcontract, or
something like that." According to Thomas, Hayes re-
peated the threat to close the plant when he telephoned the
employee earlier in the morning of the election to urge him
to come in and vote. Theodore Fritsch, who left the Com-
pany voluntarily in February, said that I week after the
election Foreman Moore asked him had he voted for the
Union and why. When Fritsch said that it was to win raises
in pay. the foreman said: ". . . that they would sell the
plant, buy the Sealtest Plant, and fire all the drivers who
voted for the Union," and that "... they knew who voted
for the union, but he did not say who." Melin Lerch was
also discharged at the end of March. His testimony is that
Helen Zitney, secretary of Respondent and also an admit-
ted supervisor, called him into the office immediately after
the balloting in January to ask which way he had voted. He
told her that he had voted "no," but that he had signed a
union card. She then asked did he know "Larry Thomas
was a teamster," and again he answered "no." With this she
wanted to know "if he ever talked to me about the union
.... " When Lerch answered no to this also she told him
that she was very disappointed in him.
There is also the testimony of Thompson, a present
driver called by Respondent, who said flatly that he heard
President Hayes say the plant would be closed before any
union would be recognized.
Hayes, Moore, and Zitney all denied having made these
statements or asking questions attributed to them by the
foregoing witnesses. On this total record I must credit the
employee witnesses. Hayes irtually admitted threatening
plant closure when talking to Thompson: his grim determi-
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation to avoid unionism in the Company is patent
throughout his story, and he had made the same threat to
the store employees when they tried self-organization. As to
Zitney, she committed exactly the same kind of unfair labor
practice during the store employee campaign, indeed in al-
most the very same words, as reported at 194 NLRB 1096.
Moore's statement and inquiries, as related by the employ-
ees, are consistent with the technique used by his superiors.
I find that () by President Hayes' statement to Larry
Dahns that the plant would not reopen if ever it were
closed, (2) by Foreman Moore's statement to Dahns that
the Company knew he and his brother were assisting the
Union, (3) by Hayes' threat to Finley of personal injury and
plant closure, (4) by Moore's interrogation of Finley and
threat to close the plant, (5) by Haye's interrogation of Lar-
ry Thomas and threat of plant closure, (6) by Moore's inter-
rogation of Fritsch and threat to close the plant and dis-
charge the prounion employees, (7) by Zitney's
interrogation of Lerch, and (8) by Hayes' threat to Thomp-
son to close the plant, Respondent coerced and restrained
its employees in violation of Section 8(a)(l) of the statute.
Shortly before Christmas 1973 Respondent, for the first
time in its history, gave a cash bonus to all its employees;
this was in addition to a gift turkey which it had always
given them. The bonus to the drivers varied between $25
for a man with less than I month of service and $100 to
men with over I year. Contesting the complaint allegation
that this cash gift was coercive and a violation of the stat-
ute, the company witnesses said that it was given only be-
cause the Company was doing very well financially. They
said that the profits were 20 times greater in 1973 than they
had been in 1971 and 1972; for the last 3 months of 1973
profits were $165,000, and for the same 3-month period of
1972 they were only $27,000. I find that the grant of this
unprecedented cash bonus to all drivers and helpers in De-
cember, while the Union's election petition was pending,
was given for the purpose of deterring them from their
union resolve and was therefore a violation of Section
8(a)(l) of the Act. N.L.R.B. v. Exchange Parts Company,
375 U.S. 405 (1964).
The discharge of Bruce Bach
It seems that the Union's organizational campaign
started in September of 1973. Bruce Bach, a driver for 2
years, took a number of union cards from the organizer in
front of the dairy, signed one himself and mailed it in, dis-
tributed five or six to other employees both inside and out-
side the building, and talked it up among drivers and help-
ers. He kept a supply of the cards on the dashboard of the
truck which he drove with some frequency. He said that he
often talked of the union campaign with Moore even as late
as 2 weeks before his discharge, telling the foreman that he,
Bach, thought the men needed a union. As stated above,
Bach was discharged by telephone on November 25 with no
advance notice, the day before the Union filed its election
petition with the Board.
If the evidence supports the complaint allegation that
Bach was discharged because of his union activities, the
finding must rest upon an inference, a conclusion warranted
by related facts, for there is no direct proof that manage-
ment dismissed him for that reason. Subsidiary questions
arise: Did the Company know that he was active in favor of
the Union at that time? Is there evidence-apart from the
persuasive proof of union animus generally--that the man-
ager or managers intended to direct their resentment to-
wards him personally? As always in cases of this kind, a no
less pertinent question is how convincing is the reason now
advanced by the Employer as the asserted basis of dis-
charge for cause? It is a circumstantial evidence case; there
are stronger and weaker elements, but all must be consid-
ered.
The probabilities are very high that the supervisors knew
Bach favored the union movement of the moment. I believe
his testimony about talking frequently with Foreman
Moore and making his attitude known to him. Moore is
otherwise revealed on this record as inclined to ferret out
information about who the activists were. I also credit the
testimonies of both Bruce Bach and his brother Larry about
an incident in Hayes' office in spring 1973. Larry, then a
driver, disputed the president's complaint about not having
called in to report an intended absence from the schedule of
runs. Bruce supported his brother's insistence that he had
not been at fault. Hayes relented somewhat in his planned
discipline, but after the president left the office, his son,
Foreman James Hayes, told them, according to Bruce, "I
heard you two were trying to start a union down here."
Bruce answered that if there ever were a union here it
would be because the Company did not treat the men
fairly. Larry corroborated Bruce Bach as to this talk. All
Hayes said about this incident is he did not recall Bruce
having been present that day.
It is a small cadre of employees who were involved,
about 30, and Bach was I of only 2 or 3 persons to be more
active. I think that Hayes or the Board of Directors in one
way or another knew about this man's attitude toward the
Union.
In fairness, however, I also think that it must be said that
some of the other evidence upon which the General Coun-
sel relies to prove company knowledge in no way helps his
case. There is certain unclear testimony about an organizer
asking to see two employees on the sidewalk and Bach act-
ing as messenger; the incident is not even worth reporting
here. Another fact is that Bach left some union cards in
view in the cab of "his" truck. For purposes of imputing
knowledge to the Company, the General Counsel stresses
Bach's frequent assignment to drive that particular vehicle.
One of Respondent's contentions in support of its affirma-
tive defense of discharge for cause is that Bach was individ-
ually responsible for a breakdown of this very same truck.
It is said that he drove very poorly, and this was one exam-
ple of the long list of his frailties as an undesirable em-
ployee. Both parties were completely inconsistent in their
total positions on this point. To prove incompetence the
Company stressed Bach's constant use of this truck; to dis-
prove knowledge of the union cards on the dashboard, it
stressed the fact that many others drove the same truck.
The General Counsel reverses this and says that it was
Bach's truck-and therefore the Company knew of his
union cards on the dashboard, but it was also someone
else's truck and therefore there was not enough reason to
hold him accountable for its mechanical defects. What is
clear is that the trucks are normally driven by a driver with
1052
UNITED DAIRY FARMERS COOPERATIVE ASSN.
a helper, that the two regularly take turns driving, that all
trucks are used by others the sixth or seventh day of the
week when a more regular user of the truck is off duty, and
that even on regularly scheduled days the same driver will
at times drive some other truck. Bach's union cards on the
dashboard of a truck prove nothing in this case.
On Friday, 2 days before the discharge telephone call,
Bach's truck broke down in the street: the clutch gave way,
and a right rear wheel fell off because the studs that hold it
in place broke. The vehicle had to be towed, first to the
plant and the next week to a repair shop, where repairs
were made; the total bill was substantial. It is a contention
of Respondent now that Bach was responsible for that acci-
dent because he did not check the truck properly all the
time and because he always drove in a reckless manner. It is
also a contention that this was the trigger incident that pre-
cipitated the discharge-even before anyone knew how
much the truck repair would cost. The Company's final
position is that Bach was dismissed because of all the faults
he had revealed throughout his 2 years of employment.
All relevant testimony considered, this record proves nei-
ther that it was Bach's fault that the truck broke down that
day, nor that the managers so believed, even if mistakenly.
Moreover, again in the light of many factors, I find uncon-
vincing the testimony offered to prove that Bach had for
many months been indifferent to duty, reckless in his driv-
ing, deliberately destructive of company property. or been a
drinking man on the job. If but a fraction of the incompe-
tence and contemptuous conduct now charged to the driver
had been true, no reasonable employer would have kept
him on. Instead, without any prior warning of discipline or
discharge, indeed with no advance notice at all, he was
summarily dismissed just as the union campaign was gain-
ing sufficient headway to warrant filing of the election re-
quest petition. When to all of this is added management's
clear union animus, Hayes' literally conceded determina-
tion to avoid collective bargaining at all costs, and the par-
allel unfair labor practices he committed in the past, an
ultimate finding that Respondent discharged Bach as a first
step toward curbing the organizational activities then in
progress is fully justified. I find that the discharge of Bach
on November 25, 1973, was a violation of Section 8(a)(1)
and (3) of the Act.
It is not easy to state coherently what Respondent calls
evidence of Bach's responsibility for the truck breakdown
on Friday night. Bach checked his truck that morning as he
always did and as all drivers are required to do. It was, as
always, a walk around visual inspection of the vehicle. He
had for days been telling the foreman that the truck did not
run well, for one reason and another. It was being used
longer hours as the volume of sales to the same number of
stores kept mounting. At his insistence the truck had, in
fact, been in a repair shop, and a. number of repairs and
adjustments had been made on it on November 12. The
Company even admits that he had been reporting trouble
with the second speed, the lights, the wiring, and an air leak
even after the November 12 repairs were made. Indeed,
because of Bach's reports, Hayes had the truck test driven
by Mr. Kelly, the owner of a large Chevrolet establishment
where company trucks are regularly serviced. It is the testi-
mony of Kelly, the expert mechanic called by the Company
to prove definitively that Bach's driving adversely affected
the truck, that is so internally inconsistent that it cannot be
believed. He tested the truck on the road on Thursday, the
day before it lost a wheel and the clutch. Kelly started by
saying that he had Bach in the truck with him, but Fore-
man Hayes said Bach was not there. In very technical lan-
guage, using the defective clutch and the broken wheel
studs that had been removed from the truck as aids to his
discourse, he said that the parts themselves proved to him
the defects were long standing and revealed abnormal wear
and weaknesses that could not have come into being in a
short time.6 He added that Bach must have known this well
in advance, and therefore must have been responsible be-
cause when studs or other parts are so irregularly worn the
driver feels a "vibration" and notices an "oscillation."
But we have it that Bach did report trouble, and that this
was why Kelly was asked to test drive. In the face of this
technical explanation damning Bach for not noticing the
defects caused by his long standing poor driving habits,
Kelly also said-with no attempt at reconciling his story-
that when he test drove the truck on Thursday, expert
though he is, he could notice nothing wrong with the vehi-
cle. If he could detect nothing wrong, how does Bach be-
come responsible for not reporting (which he did report)
defects which he should have noticed (but which Kelly
could not see)! Respondent even relies upon the size of the
repair bill it had to pay to justify the discharge. However,
the amount was not known until much later, and when it
was produced at the hearing it developed that a good part
of it-perhaps half-was for work and parts having nothing
to do with whatever weakness had caused the Friday break-
down. It was a time of great pressure upon the use of these
trucks. Drivers were interchanged now and then, and
Bach's helper drove that truck as much as he did. Bach said
he was never criticized for the quality of his driving, and I
believe him.
Of greater significance is Bach's further testimony-un-
contradicted by any of the witnesses called against him,
high supervisor or low-that he was never warned in any
way that he might be disciplined or discharged for miscon-
duct. In the light of the horror story of misbehavior-the
only way the collective picture painted by the defense wit-
nesses can be described-this one fact alone should suffice
to discredit the broadside defense that Bach was dismissed
because of things he did long before he started helping the
Union to organize.
John Yagla, a driver, listed three items against Bach. (I)
".. a few times where he would get his dolly and purposely
ram cases, busting the glass jugs .. ." Yagla said that this
happened several times in July of 1973, but he never men-
tioned it to anyone in management. (2) He once saw Bach
eating with three other drivers in a coffeeshop, and all four
were having beer with their lunches; this only once, in Au-
* Four of Respondent's exhibits were apparently rmslaid and have not
reached my desk including: (1) the original tapes on Hayes' two speeches
(their transcripts were received); (2) two truck clutches and several wheel
bolts, intended as p:oof of comparative wear: (3) timecards of employee
Ernest Hayes. Jr., here found eligible to vote in keeping with Respondent's
contention; and (4) several photos of the interior of the plant cooler (also
evidenced in a companion exhibit). As is apparent from the above text, the
absence of these exhibits does not affect this Decision.
1053
DIE('ISIONS OF NATIONAI I.ABOR RELATIONS BOARD
gust. e said that he did mention this to Manager Hayes,
but there is no indication that any' supervisor ever spoke of
the incident to Bach. (3) Finley. a driver on the route with
Bach, came in "bleeding slightly . he was beat up pretty
bad." Yagla was called by Respondent to help prove that
Bach was no good; he told of this bleeding employee in
response to the question by company counsel: "Are you
aware of any incident concerning his [Bach's] employment
with United DIairy Farmers?" That he was saying that he
knew Bach was personally responsible for the other driver's
bleeding is absolutely clear. Yagla is a brother of Helen
Zitney, the secretary of Respondent, whose activities are set
out above.
In his own recital of' Bach's faults. Ernest Hayes gave
details of that "fight" and "bleeding" incident. There was
no question that he was saying Bach was the antagonist.
Hayes stated. "... his [Finley's] face was bloody, blood was
running down, his nose was all mashed in, he had two black
eyes .... " On the retelling during cross examination, Hayes
changed it to two fights that Finley had had: "There was
one coming to work, and there was one at work."
The fact of what happened came from Finley himself,
who was recalled in rebuttal. It happened around Easter
time in 1973 at 5 a.m. in the morning. Befiore starting work,
near the Bach home, Finley quarreled with Bruce's brother
Larry, who punched him. His nose bled, but he went to
work; in the middle of the day, after his first run, one eye
became discolored, the nose bleed persisted, and he asked
for the rest of the day off. Finley said that Bruce Bach had
nothing to do with this and that he never said otherwise.
Hayes admitted that he never said a word to Bruce about
this. The testimony about this incident is set forth in detail
here only because it illustrates the kind of oral evidence
offered as affirmative defense. The Finley incident had
nothing to do with Bach, and Respondent knew it. The only
explanation for the obvious deception so attempted at the
hearing must he that Respondent is concealing a bad mo-
tive that really underlay the discharge.
Another witness was the president's son, James Hayes,
now a plant foreman but truck foreman in 1973 over Bach
and other drivers. He was asked:, "Are you aware of' his
conduct as a truck driver from personal experience?" . . .
He replied "Yes, I had numerous complaints of him break-
ing jugs deliberately and of him cowboving the truck, hot-
rodding it on the road." The foreman added that his
brother Tom and another man who runs a bottle machine
"would cut their hands on the broken jugs, theN didn't
know that the jugs were in there broken and they would
come and tell me about it." The brother, om ayes, cor-
roborated the foremen, said, "... he {Bach] would hit the
case of bottles too hard and would break the bottom bottles
in the case. And other times, he would be waiting for more
empties to come up, he would chip the tops off ot these
gallon jugs . .. he would just hit it real hard and when he
would kick it, he would break the rest of' them too." Ihe
witness said that he saw Bach do this 4 or 5 months before
the discharge "at least twice a week." To be more convinc-
ing, the witness extended his hand to show a scar. The fore-
going is hut a sampling of the repetitive descriptions these
witnesses gave of Bach's misconduct. :Foreman Hayes said
that he told Bach not to do these things, but "lie just
shrugged his shoulders and walked away." His brother said
that he never complained to Bach because: "It wouldn't
have done any good. He would have never listened to me. It
is like talking to the wind." The father expanded on his
sons' recitals: "My son Tom came to me angry quite a few
times, wanting to know why I didn't do something about
Bruce breaking bottles . .. we had a number of people had
their tendons cut off, and their arms, drivers and other peo-
ple, it was very dangerous."
In the face of all this, all of Respondent's witnesses also
admitted a certain amount of bottle breaking happened to
everyone because of how the milk is cased and how it must
he loaded and unloaded in dollies and piles of cases stand-
ing five cases high. After explaining why he did not dis-
charge Bach sooner, Hayes was asked on direct: "Q. Did
you ever talk to him about his activities? A. Yes, I talked to
him the day he left, I told him that day. I said Bruce, the
next company you go to work for, try and think of the
company, and not destroy things." I do not credit these
witnesses. I cannot credit any manager who says that he
had long known that an employee's misconduct caused ten-
dons to be cut off "and their arms" !], but did nothing
about it. I believe Bach's testimony that he broke no more
bottles than anyone else, and that he was never repri-
manded or warned for asserted misconduct.
E. Report on Ohjections and ( hallenges (Case R( 6682)
1. Objections
In view of the illegal discharge of Bruce Bach and the
other coercive conduct by management agents that took
place before the January 8, 1974, election--as detailed
above - I find merit in the Union's objections. Accordingly.
I recommend that after resolution of the pending challenges
if the Union has not established majority representative sta-
tus the results be set aside.
2. Challenges
At the start of the hearing five challenged ballots re-
mained to be investigated. One was that of Bruce Bach,
questioned by the Board agent at the election because he
had been discharged. In view of the findings made here that
his discharge was a violation of the statute, I find that he
was eligible to vote and therefore recommend the challenge
be overruled.
The Company challenged the ballot of' Bernard Dahns. It
withdrew this challenge at the hearing. 'That ballot will
therefore he opened as a matter of' course.
3. rnest Ilayes Jr.
This is a son of President Hayes; at the time of the elec-
tion he had been a regular part-time truckdriver for 3 years.
HIe held another job with another employer but worked 2
normal days each week here, sometimes only I day, filling
in for full-time drivers on their days off, usually on week-
ends. There were other regular part-time drivers like Hayes,
Jr. lIe was an eiigible voter under established Board law.
The UInion contends that he should nevertheless be deemed
ineligible on the ground that he was accorded preferred
treatment as an employee becaluse he is the son of the com-
1054
UNITED DAIRY FARMERS C(OOPERAI'IVE ASSN.
pany president. The total evidence does not support the
assertion. He sometimes asked that his scheduled days be
changed for personal convienence: other regular drivers did
the same on occasion and were accorded like courtesy. He
punched a timecard like everyone else and was paid at the
same hourly rate. Apart from purely conclusionary opinion
of a witness or two that Hayes was treated with greater
courtesy than others, there is no objective or record proof of
the alleged preference. I find that he was an eligible voter
and therefore recommend that his ballot be opened and
counted.
4. William Griffith
The only evidence respecting this man's eligibility is what
he himself gave when called as a witness by the Union. No
reason has been suggested by anyone why his testimony.
perfectly credible on its face, should not be accepted in full
faith. He did drive a truck at the time of the election.
From 1971 when he joined the Company to the latter
part of 1973, Griffith did a variety of work inside the plant
and at the farms which supplied the milk but little if any
driving of trucks. Officially licensed, he used to inspect the
farms as required by law: he recorded and kept control of
written laboratory bacteria analysis reports received at the
plant for the milk from each farm: he made butterfat tests
inside the plant; and he helped to stock milk and operated
the bottle washing machine sometimes. In October of 1973
he started spending more time driving the trucks or as a
helper on them. He did less visiting on the farms to inspect:
someone else was licensed and did that primarily. He said
that, at best, by the end of the year he visited perhaps 30
farms each month, spending no more than about 30 min-
utes at each. By the spring of 1974 he worked as a full-time
driver on the piecework basis described above. A driver he
was; for his name, too, must have been on the Company's
eligibility list, and a nondated exhibit offered by the Union
shows his name scheduled for 5 day's work in a single week.
There is no contradiction of his testimony that by the end
of 1973 he drove a truck on an hourly paid basis from 85 to
90 percent of his time.
I think that Griffith was eligible to vote in the January
election, and that his ballot should therefore be opened and
counted.
5. David Bissett
This man worked on the trucks with the other men in-
volved in this case. The Union asserts that he was on the
trucks only as helper and did not drive at all, and that he
therefore was excluded from the unit and deemed ineligible.
The stipulation for consent election included "drivers," and
excluded "all others": it made no mention of helpers. The
only evidence offered by anyone respecting Bissett's eligibil-
ity is testimony by Lawrence Dahns, one of the discharged
drivers, called by the Union in support of' its challenge to
this man's ballot.
Dahns said that Bissett was on a truck with him as a
helper "once or twice" but did no driving. lie also testified
that he asked Bissett to drive, but the man "said he wasn't
allowed." I)ahns said that he recalled Bisselltt having been
an employee for about 3 months "that wasjust a guess ...
more like a floater" and that he had never seen him drive
any truck. Dahns also said that he thought Bissett had a
driver's license.
It is not asserted that at the time of the election Bissett
was not an employee who worked on these trucks. The
clearest fact shown by this record is that the employees all
considered themselves both drivers and helpers; they
worked as drivers and they worked as helpers-every one of
them. Thev not only talked in this fashion throughout the
hearing, but the daily schedules listed two men for each
truck each day, always one was designated driver and the
other helper. There is no indication that apart from this one
man if he can be deemed as properly allocable to a differ-
ent class there was anyone else who was regularly on the
truck but never drove. There is no helper class in this Com-
pany. If Bissett was not part of this unit, it means that he
had no place to fit in as a member of an appropriate bar-
gaining unit. Notwithstanding there is no explicit reference
to helpers -- in or out of the stipulated unit, I believe that
the attempt to exclude Bissett was an afterthought. and that
it was the intention of the parties to include such a man. I
find that he was eligible to vote, and that his ballot should
now be opened and counted.
THE RFMFI)Y
Having found that Respondent committed a variety of
unfair labor practices, it must be ordered to cease and desist
from such practices and to take corrective measures to undo
the effects of the misconduct to the extent possible. It must
stop threatening people in retaliation for their union activi-
ties: it must stop discharging employees for trying self-or-
ganization; it must stop changing the status of its employ-
ees to fulfill an antiunion motive: and it must stop
discriminating against employees in their conditions of em-
ployment.
Also in keeping with established practice, the (ompany
must offer reinstatement to all the people who were dis-
charged, and it must restore the remaining group, those
who are now driving at a piecework basis, to the conditions
of emplo. ment under which they worked before the unlaw-
fill discrimination against them. In this instance it means
that Respondent must cancel all paper transactions con-
verting its drivers into asserted independent contractors or
piecework employees and restore the system of hourly paid
employment, including all fringe benefits previously en-
joyed. A necessary aspect of this remedy, of course, is that
every employee who suffered a discrimination must be
made whole for any loss of earnings that may be revealed in
the investigation stage.
It is a contention of the Union that in the circumstances
of this case an essential element of the remedial Order must
include an affirmative order directing Respondent to bar-
gain with the Union on request in the unit involved in the
election case. The G(eneral Counsel does not join in this
request.
The Union's position rests essentiall, upon assertion that
the unfair labor practices conmmitted bh this Ermploer as
toiund in this proceeding. as ound in the oa rd's decision
reported in olu11me 194, and as found in ('ase 6 ('A 4123.
wAith coiurl lentorcemlielt were so "otrlageotls ld plerva-
sive" las to preclude an , rational expectation that flir
1055
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election among the employees can possibly take place in the
foreseeable future. For legal authority the Union relies
upon the Supreme Court's apparent acceptance, in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), of
the legal principle that when the unfair labor practices com-
mitted by the employer are of "such a nature that their
coercive effects cannot be eliminated by the application of
traditional remedies, with the result that a fair and reliable
election cannot be had." an affirmative bargaining order is
appropriate "without need of inquiry into the majority sta-
tus." See also N.L.R.B. v. S. S. Logan Packing Company,
386 F.2d 562 (4th Cir. 1967), enfg. 152 NLRB 421 (1964).
For fact the Union points to the following: (I) Manage-
ment made it its business to learn who the unioneers were
among the drivers; the supervisors asked directly, and one
said that the Company knew the names of all 10 men who
had voted for the Union. (2) The president and lower super-
visors told the men that they would lose their jobs, and the
plant would be closed and then changed into another com-
pany to stop the union movement. (3) The Company car-
ried out its threat-or at least tried to, and changed the
status of everybody in the unit. It discharged some drivers
outright, and by corporate fiction made the rest accept the
deadly alternative of either going on piecework basis or
leaving the Company. (4) The outrageous character of these
unfair labor practices appears affirmatively in the testimony
of one new style driver after the other. A number were even
afraid to admit that they were told they were finished with
this Company if they did not acceed to whatever it was the
president was telling them to do-this in the face of docu-
mentary proof of the threat to discharge. (5) Some said that
they liked the arrangement and are earning more money.
There was nothing else they could say, because by the time
of the hearing they had well learned what happens to em-
ployees who do not co-operate with President Hayes' strat-
egy for keeping any union out of his business. (6) This rec-
ord shows successful implementation of the illegal threat of
discharge which Hayes had made before-in 1971 to the
store employees. It was not necessary to remove the store
clerks from employee status to defeat the organizational
campaign of that other union because the threat sufficed.
Will Mr. Hayes, who ignored the restraining Order in the
first proceeding, pay any attention to this one? (7) His own
testimony in this case is admission that he does not think
Respondent can remain in business if a majority of the em-
ployees were to vote Local 205 into the dairy. With such an
attitude conceded here in the third consecutive case, is there
reason to believe that the posting of notices, reinstatement
of discharged drivers, and even backpay will guarantee a
fair election tomorrow?
I find merit in the Union's argument that anything short
of a bargaining order here assures Respondent of continued
enjoyment of the fruits of its repeated unfair labor prac-
tices. To this Company the Board's conventional remedies
are a mockery. Extraordinary cases justify extraordinary
remedies. No post-Gissel precedent in Board law has been
cited to the effect that the Board will order bargaining even
when neither majority status nor demand and refusal have
been shown. But as I read its recent decision in Steel-Fab,
Inc., 212 NLRB 363 (1974), where the unfair labor prac-
tices found are so pervasive and outrageous as to demand a
bargaining order, violation or no violation of Section
8(a)(5) is irrelevant. If the refusal to bargain unfair labor
practice is irrelevant there, logically it is irrelevant here. I
think therefore that an affirmative bargaining order now is
an essential part of the remedial Order.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section 1, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. By discharging Lawrence Dahns, Jerry Finley, Walter
Kossel, Bruce Bach, Melvin Lerch, Michael Peden, and
Larry Thomas for engaging in union activities, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
2. By changing the conditions of employment of the bulk
of its drivers and helpers in a manner adverse to their inter-
est and by ostensibly converting their status from that of
employee to independent contractor, Respondent has dis-
criminated against them all and thereby violated Section
8(a)(3) of the Act.
3. By the foregoing conduct, by coercively interrogating
employees concerning their union activities, by threatening
to discharge them for engaging in union activities, by
threatening to shut down the business because of their
union activities, by conveying to them the impression that
the Company is surveying their union activities, and by
granting an unprecedented cash Christmas bonus to its em-
ployees, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
1056