Windsor Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1157 (N.L.R.B. 1984)

WINDSOR INDUSTRIES 1157
Windsor Industries, Inc. and National Organization
of Industrial Trade Unions. Cases 29-CA-7943
and 29-CA-8108
14 December 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 15 December 1982 the National Labor Rela-
tions Board issued a Decision and Order in this
proceeding,' adopting an administrative law
judge's findings that the Respondent violated Sec-
tion 8(a)(1) of the Act by soliciting grievances
from its employees and promising to remedy them
in order to induce employees to refrain from sup-
porting the National Organization of Industrial
Trade Unions (the Union) and violated Section
8(a)(1) and (3) by laying off employees Joseph Ben-
zola and Jack Roberts in order to discourage mem-
bership in the Union. The Board also adopted the
judge's findings that the Respondent's unfair labor
practices were sufficiently 'widespread and serious
to warrant issuance of a bargaining order under
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
and that the Respondent's refusal to recognize and
bargain with the Union violated Section 8(a)(1) and
(5). 2 The Board ordered the Respondent to cease
and desist from the conduct found unlawful and to
take certain affirmative action, including bargaining
with the Union on request as the exclusive bargain-
ing representative of its employees. Thereafter, the
Board filed an application for enforcement with the
United States Court of Appeals for the Second Cir-
cuit.
On 13 March 1984 a panel of the court of ap-
peals enforced the Board's Order to the extent that
the Board found the Respondent had violated Sec-
tion 8(a)(1) and (3). The court declined, however,
to enforce that portion of the Order requiring the
Respondent to bargain with the Union and remand-
ed this proceeding to the Board for additional find-
ings concerning the propriety of a bargaining
order. The court found that events occurring after
the unfair labor practices were committed were rel-
evant to the issuance of a bargaining order. Thus,
the court directed the Board to consider lapse of
time, employee turnover, and other factors and to
apply the law of the circuit that the existence of
1 265 NLRB 1009
2 Former Chairman Van de Water and Member Hunter declined to
join that portion of the Board's Order directing the Respondent to bar-
gain with the Union
Chairman Dotson did not participate in the original decision and ex-
presses no view regarding the Board's findings therein
"hallmark" violations alone does not necessarily
warrant issuance of a bargaining order.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Applying the principles in the court's remand as
the law of this case, we find for the following rea-
sons that a bargaining order is not warranted.
As found in our original decision the Union com-
menced organizational activities among the Re-
spondent's 15 unit employees on 7 April 1980. 3 On
10 April the Union demanded recognition. At the
employees' request the Respondent held a meeting
on company premises the following day where em-
ployees' benefits and grievances were discussed. At
this meeting the Respondent agreed to "look into"
employees' stated concerns and thereafter at the re-
quest of an employee posted a list of holidays al-
ready enjoyed by employees. 4 On 15 April the Re-
spondent laid off employees Benzola and Roberts
because of their activities on behalf of the Union.
On 29 May the Respondent offered Benzola rein-
statement and on 4 June the Respondent offered
Roberts reinstatement. Roberts accepted the rein-
statement offer. Benzola did not respond.
At the time of the unfair labor practices in April
1980 the Respondent employed 15 bargaining unit
employees. When our original decision issued in
the proceeding in December 1982 the Respondent
employed 13 unit employees. Only 5 of those 13
employees had been employed at the time of the
unfair labor practices in April 1980. Of those five
employees only two had signed union authorization
cards. Two more years have now elapsed since our
original decision in this proceeding.
Substantially similar circumstances were present
in NLRB v. Knogo Corp., 727 F.2d 55 (2d Cir.
1984), in which the Second Circuit denied enforce-
ment of a bargaining order. There, 60 percent of
the current unit employees were not employed at
the time the violations were committed. Here, ap-
proximately 60 percent of the unit as it existed
when our original decision issued were not em-
ployed at the time the violations were committed.
There almost two-thirds of the old employees had
not signed cards. Here, precisely 60 percent of the
employees employed in April 1980 who were still
employed in December 1982 had not signed cards.
There, the court noted a substantial lapse of time
cast doubt on whether employee preference once
expressed through authorization cards still reflected
3 All dates are in 1980 unless noted otherwise
4 The list included no additional holidays that were not already en-
joyed
273 NLRB No. 142
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority support for the union. Here, a similar sub-
stantial lapse of time occurred.
In addition to such substantial employee turnov-
er and passage of time in the instant proceeding,
we also find that certain other factors now militate
against issuance of a bargaining order. Thus, al-
though the discriminatory layoff of employees Ben-
zola and Roberts were hallmark violations of the
Act, the Respondent offered reinstatement to both
these employees several weeks later and, indeed,
Roberts accepted the Respondent's offer. Further,
notwithstanding its solicitation of grievances and
implied promise to remedy grievances, the Re-
spondent did not implement any actual changes in
response to the grievances solicited. 5 Nor did the
Respondent otherwise engage in acts of reprisal or
coercion independently violative of Section 8(a)(1).
Taken together with the substantial employee
turnover and passage of time, we find that the Re-
spondent's unfair labor practices in April 1980 did
5 As noted, the Respondent merely posted a list of holidays already
enjoyed by employees
not have the tendency to undermine majority
strength and impede the election processes as to
make a fair election unlikely years later. NLRB v.
Gissel Packing Co., supra. 6 We shall therefore deny
the request for a bargaining order and shall dismiss
the complaint insofar as it alleges that the Re-
spondent violated Section 8(a)(5) and (1) of the
Act.
ORDER
The complaint is dismissed insofar as it alleges
that the Respondent, Windsor Industries, Inc., Mel-
ville, New York, refused to bargain with National
Organization of Industrial Trade Unions in viola-
tion of Section 8(a)(5) and (1) of the Act.
IT IS FURTHER ORDERED that the request for a
bargaining order is denied.
6 As directed by the court of appeals, in reaching our decision we have
carefully considered the court's opinions in NLRB v General Stencils, 438
F 2d 894 (2d Cir 1971), J J Newberry Co. v NLRB, 645 F 2d 148 (2d
Or 1981), NLRB v Pace Oldsmobile, 681 F 2d 99 (2d Cir 1982), and
NLRB v Marion Rohr Corp, 714 F 2d 228 (2d Or 1983) We conclude
that a bargaining order is not warranted in this proceeding under the
holdings of those cases See also NLRB v. Knogo Corp., supra