N.L.R.B. v. Rexair, Inc.
| Decision Date | 23 April 1981 |
| Docket Number | No. 79-1530,79-1530 |
| Citation | 646 F.2d 249 |
| Parties | 107 L.R.R.M. (BNA) 3081, 92 Lab.Cas. P 13,025 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. REXAIR, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., David Marshall, Washington, D. C., Bernard Gottfried, Director, Region 7, N.L.R.B., Detroit, Mich., for petitioner.
A. David Mikesell, Honigman, Miller, Schwartz & Cohn, John Sklar, Detroit, Mich., for respondent.
Before KEITH, MERRITT and MARTIN, Circuit Judges.
The National Labor Relations Board is applying to the court under § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), to enforce its order setting aside the results of a disputed election in which the United Furniture Workers Union lost its bid to represent the employees at Rexair's Cadillac, Michigan plant; requiring Rexair to cease and desist from engaging in certain activities violating §§ 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. §§ 158(a)(1) and 158(a)(3); and ordering Rexair to recognize and bargain with the Union upon request. The challenged activities occurred after the Union obtained authorization cards from a large majority of the plant's employees in early December 1977 and requested recognition by Rexair. The latter refused, and the two parties entered into a Stipulation for Certification Upon Consent Election. The election was held on February 14, 1978. The Union lost, and it filed objections to the election, charging that Rexair had engaged in numerous unfair labor practices during the campaign. After a hearing, the administrative law judge found that almost every one of the challenged activities constituted an unfair labor practice, and he held that Rexair's unlawful conduct "impeded the election process, undermined the Union, and destroyed its majority status" (App. 23). He held that issuance of a cease and desist order and holding a new election would be an unsatisfactory remedy, and he therefore ordered that the Union be recognized without a rerun election and that Rexair bargain with it upon request. The Board upheld the ALJ's decision, stating simply, "The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the (ALJ) and to adopt his recommended Order (with small modifications not relevant here)" (App. 29) (footnote omitted).
The standard employed by courts reviewing a Board determination of factual issues is whether its findings are "supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e). Upon review of the record we hold that the ALJ's finding that Rexair engaged in unfair labor practices during the unionization drive is supported by substantial evidence. Although some of Rexair's challenges reveal that there may be some debate about individual findings of the ALJ, we do not believe that Rexair has sustained the burden of demonstrating that the ALJ erred in concluding that the company had engaged in unfair labor practices necessitating the vacating of the election results.
More difficult, however, is the issue of the remedy imposed. In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Supreme Court held that although holding a new election is the preferred remedy, a bargaining order may issue without a new election in either of two situations: when employer violations have been "flagrant" or "egregious"; or when a union obtained a majority status at some point prior to the election, and the employer's conduct, though not outrageous, "nonetheless still (has) the tendency to undermine majority strength and impede the election process." 395 U.S. at 613-15, 89 S.Ct. at 1939-1941. The ALJ found that the present case fell into the second category, and he stated,
I am of the opinion that the possibility of erasing the effects of the Company's unfair labor practices and insuring a fair election by the use of the traditional remedy of a cease-and-desist order is slight, and that in this case the employees sentiment expressed through the authorization cards obtained by the Union would, on balance, be better protected by a bargaining order
(App. 23).
We disagree. We recognize that "the determination of a remedy is peculiarly within the province of the Board." Automated Business Systems v. NLRB, 497 F.2d 262, 272 (6th Cir. 1974); see Gissel, supra, at 612 n.32, 89 S.Ct. at 1939 n.32 (...
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