N.L.R.B. v. Jamaica Towing, Inc., 1251

• Decision Date: 01 October 1980
• Docket Number: D,No. 1251,1251
• Citation: 632 F.2d 208
• Parties: 105 L.R.R.M. (BNA) 2959, 89 Lab.Cas. P 12,322 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JAMAICA TOWING, INC., Respondent. ocket 80-4033.
• Court: U.S. Court of Appeals — Second Circuit

Page 208

632 F.2d 208

105 L.R.R.M. (BNA) 2959, 89 Lab.Cas. P 12,322

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JAMAICA TOWING, INC., Respondent.

No. 1251, Docket 80-4033.

United States Court of Appeals,

Second Circuit.

Argued June 12, 1980.

Decided Oct. 1, 1980.

Paul J. Spielberg, N. L. R. B., Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Andrew F. Tranovich, Atty., N. L. R. B., Washington, D. C., of counsel), for petitioner.

Carl A. Schwarz, Jr., New York City (Raymond L. Vandenberg, Finley, Kumble, Wagner, Heine & Underberg, New York City, of counsel), for respondent.

Before LUMBARD and MANSFIELD, Circuit Judges. ^*

MANSFIELD, Circuit Judge:

For a second time the National Labor Relations Board (the Board) seeks enforcement of an order entered by it on July 18, 1978, after it found that respondent, Jamaica Towing, Inc. (Jamaica), violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act (the Act), 29 U.S.C. §§ 158(a)(1) and (a)(5), immediately prior to a union representation election held on February 24, 1976, in which Local 917 of the International Brotherhood of Teamsters (the Union) was defeated. Jamaica was ordered to cease and desist from engaging in such unfair labor practices and to bargain with the Union. Upon the prior application we affirmed the Board's findings of unfair labor practices but remanded for further consideration of the order to bargain. 602 F.2d 1100. We directed the Board to consider whether, in view of a substantial change in Jamaica's work force, the bargaining order had become obsolete and unnecessary, and to outline the standards applied by it in its decision to issue a bargaining order rather than to limit itself to a cease-and-desist order followed by a Board-supervised rerun election. Upon remand the Board refused to consider employee-turnover as a relevant factor and did not explain the standards governing its decision to issue a bargaining order in this case as distinguished from its orders in other cases where that remedy had not been imposed. Accordingly, we deny enforcement of the bargaining order.

The facts are fully set out in our prior opinion, 602 F.2d at 1101-03, and need not be repeated in detail here. For present purposes it suffices to point out that at the time of the offenses Jamaica, a small company engaged in automobile towing and body repair, employed 8 tow-truck operators. On January 17, 1976, the Union obtained signed cards from 7 of the 8 authorizing it to act as their collective bargaining representative. A consent election held on February 24, 1976 was lost by the Union by a 6 to 2 vote. Between January 17 and February 24 Jamaica's President, Anthony Giorgianni, engaged in several unfair labor practices in late January, at a meeting of the drivers, he asked them who had signed with the Union and upon receiving no answer walked away. On different occasions he told each of three employees separately that he opposed the Union and could "use muscle" to take care of it. At a meeting with two drivers, after assuring them that no one would be fired because of joining the Union, he pointed out the disadvantages to them of unionization and, upon learning of the benefits which the employees sought to gain through the Union, stated that he could not make any promises because of the pending election but that he would consider the employees' demands. In mid-February, when four drivers, after obtaining a meeting with him, stated they had erred in seeking union representation and would reject the Union if he met certain demands, he repeated that he could not make any promises and outlined his attitude with respect to sick leave, hospitalization, uniforms and wage increases. Shortly thereafter the employees voted 6 to 2 against the Union.

The Union thereupon filed with the Board timely objections to Jamaica's conduct affecting the election, which were upheld by the Regional Director on May 11, 1976. The Board's General Counsel then filed the unfair labor practice charges against Jamaica which resulted in the order presented to us for review. In September, 1976, while the charges were pending but before the Administrative Law Judge (ALJ) had rendered his decision, 3 of the 8 employees were lawfully discharged for reasons later found to be wholly unconnected On December 8, 1977, the ALJ found that Giorgianni had violated § 8(a)(1) of the Act by attempting to find out which employees had signed for the Union and by his individual meetings with each of three employees in which he expressed opposition to the Union and stated he would "use muscle" against it. The balance of Giorgianni's conduct was not found sufficiently egregious to constitute threats or promises of discharge, leading the ALJ to conclude that "the unlawful interrogations and threats ... neither require nor justify the imposition of a bargaining order under the standards set forth by the Supreme Court in NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). Two instances of interrogation, and three non-specific threats to resort to 'muscle,' do not, in any judgment, eliminate the possibility of a fair rerun election...." Accordingly he recommended that Jamaica be ordered (1) to cease and desist from engaging in the activities found to be unfair labor practices, or from interfering with the employees' exercise of their rights under § 7 of the Act, and (2) to post a notice in conspicuous places to the effect that it would not engage in such activities and that employees were free to become and remain members of the Union.

                with their union activities.  1  As a result only 5 employees remained of the original 8
                

Upon exceptions filed by the General Counsel the Board, on July 19, 1978 (more than 2 years and 5 months after the conduct complained of), agreed with the ALJ's findings of unfair practices but rejected his inference as to the relative insignificance of Giorgianni's meeting with employees at which he pointed out the disadvantages of unionization and stated that, although he could make no promises, he would consider the demands and benefits voiced by them. The Board held that this conduct amounted to direct dealing with the employees and repudiation of Jamaica's bargaining obligation, in violation of §§ 8(a)(1) and 8(a)(5) of the Act. It also concluded that Jamaica had "engaged in pernicious conduct which, by its nature, has long-lasting if not permanent effects on the employees' freedom of choice in selecting or rejecting a bargaining representative" and that a bargaining order was required and justified.

On July 29, 1979, following the Board's initial petition for enforcement, we remanded with directions to consider the effect of the turnover of Jamaica's work force and to explain, in terms of standards or guidelines of general application consistent with its denial of bargaining orders in other similar cases, why such an order was required in this case rather than the preferred remedy of a Board-supervised second election held after entry of a cease-and-desist order of the type recommended by the ALJ. That order would require Jamaica to post notices that employees were free to remain or become members of Local 917. See 602 F.2d 1100. Upon remand the Board, in a short "Supplemental Decision and Order," filed on January 17, 1980, for the most part regurgitated its prior decision, adding only that the impact of the employer's misconduct was pronounced and long-lasting because of the nature of the misconduct and the small size of the work force. No effort was made to ascertain the nature and extent of employee-turnover during the period prior to or after its original decision. The Board simply concluded, without any evidentiary basis, that the prejudicial impact of the misconduct had not been dissipated, and that to hold otherwise would reward the employer, putting a premium on

its continued litigation. It reaffirmed its July 18, 1978, order, enforcement of which is sought in this petition.

DISCUSSION

Where an employer's misconduct taints a prior union election by adversely affecting the employees' freedom of choice, the traditional remedy, frequently characterized as the "preferred" or "superior" remedy, see NLRB v. Jamaica Towing, Inc., 602 F.2d 1100, 1104 (2d Cir. 1979); Donn Products, Inc. v. NLRB, 613 F.2d 162, 165 (6th Cir. 1980); Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1122 (7th Cir. 1973), has been to (1) vacate the election, (2) enjoin the employer from engaging in such misbehavior, (3) require him to post "contrition" notices to his employees, disavowing any future interference, and (4) direct him to give union representatives reasonable access to the employees. This is then followed by a new Board-supervised election. The issuance by the Board of a bargaining order in lieu of a cease-and-desist order is only proper if, after an objective review of all of the relevant surrounding circumstances, including the nature of the employer's misbehavior and any later events bearing on its impact on the employees, it may reasonably be concluded that the employees will be unable to exercise a free choice in a Board-supervised rerun election.

In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Court held that under some circumstances the Board might find it necessary, because of the lasting adverse impact of the employer's misconduct upon the employees' freedom of choice, to require the employer to bargain directly with the union which had lost the election rather than simply to order a new election. The Court stated that in "exceptional" cases where the employer's unfair labor practices have been "outrageous" or "pervasive" a bargaining order would be justified because the coercive effects of the misbehavior would not be eliminated by the traditional...