Drug Package, Inc. v. N.L.R.B.
| Decision Date | 13 February 1978 |
| Docket Number | No. 77-1149,I,AFL-CIO-CL,77-1149 |
| Citation | 570 F.2d 1340 |
| Parties | 97 L.R.R.M. (BNA) 2851, 83 Lab.Cas. P 10,374 DRUG PACKAGE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Graphic Arts International Union, Local 505,ntervenor-Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
D. J. Sullivan of Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., for petitioner; Michael J. Tannler and Timothy L. Stalnaker, St. Louis, Mo., on the brief.
Joseph A. Oertel, Atty., N. L. R. B., Washington, D. C., for respondent; William R. Stewart, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., on the brief.
Charles A. Werner of Schuchat, Cook & Werner, St. Louis, Mo., for intervenor-respondent; A. John DeVouton, St. Louis, Mo., on the brief.
Before BRIGHT and ROSS, Circuit Judges, and HARPER, Senior District Judge. *
Drug Package, Inc. (the Company), petitions this court to set aside an order by the National Labor Relations Board requiring the Company to recognize and bargain with Local 505, Graphic Arts International Union, AFL-CIO-CLC (the Union), and to reinstate employees who went on strike. The Board and the Union cross-petition for enforcement of the order. We grant enforcement in part, deny enforcement in part, and remand to the Board for further consideration.
In 1974 the Union began a campaign to organize the production and maintenance department employees of Drug Package, Inc., a specialty printing company located in O'Fallon, Missouri. By May tenth of that year, a majority of the 182 employees in the bargaining unit had signed cards authorizing the Union to act as their collective bargaining agent. The Union informed the Company of its majority support, but the Company refused to recognize or bargain with the Union. On May 23, the employees voted to strike, and the following day eighty-two of the employees went out on strike. Although the Union had filed a representation petition with the Board, the hearing on the petition was postponed indefinitely by the Company's filing of unfair labor practice charges on May 28 and the Union's filing of cross-charges on May 31 and July 31. 1
The present proceedings arise out of the Union's charges that the Company had violated sections 8(a)(1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3), and (5)(1970). Prior to the issuance of the complaint, the Board's St. Louis regional director dropped the 8(a)(5) charge and the Board's general counsel sustained that ruling on appeal. At a subsequent hearing on the complaint, an administrative law judge found that the Company had violated sections 8(a)(1) and 8(a)(3) and recommended that the Board issue a bargaining order requiring that the Company bargain with the Union on demand. He further found that the strike was not an unfair labor practice strike and, therefore, the striking employees were not entitled to reinstatement. All parties filed exceptions to the decision.
The Board, in a decision issued February 10, 1977, 228 NLRB No. 17, 94 LRRM 1570, found that the Company had violated section 8(a)(1) by interfering with, restraining, and coercing employees in the exercise of their section 7 rights, and that the Company, by refusing to bargain with the Union on or after May 10, 1974, had violated section 8(a)(5). The Board ordered the Company to bargain with the Union, but made the bargaining obligation retroactive to May 10, 1974. Reversing the administrative law judge's conclusion as to the nature of the strike, the Board found that the strike was caused by the Company's 8(a)(5) violation and, therefore, was an unfair labor practice strike. The Board ordered the strikers to be reinstated upon application and ordered that the Company be liable for backpay for any strikers not reinstated. The Board also concluded that the Company had not violated section 8(a)(3).
The case comes before us on the Company's petition to review and set aside the Board's order and the Board's cross-petition for enforcement. The Union, as intervenor, joins the Board in seeking enforcement. The Company does not challenge the findings of 8(a)(1) violations, but it challenges the following determinations: (1) that the 8(a)(1) violations were serious enough to warrant a bargaining order; (2) that the Company violated section 8(a)(5); (3) that a retroactive bargaining order is appropriate; and (4) that the strike was an unfair labor practice strike.
The Board found the Company guilty of approximately seventeen violations of section 8(a)(1) by interfering with the employees' organizational rights. These violations rested on comments made by the Company's supervisory and managerial personnel during conversations with several employees. In these conversations, the supervisors stated that if the plant were unionized some employees, particularly those with physical disabilities, might be fired, that the employees would have to work harder, that certain fringe benefits, including a company-run bus service from St. Louis to the plant site, would be discontinued, that the Company would have to fire a certain number of employees in order to hire a quota of black employees, and that the Company might have to close down. Approximately nine of these conversations occurred prior to May 10, the date on which the Union obtained organizational cards from a majority of the employees; three of these conversations occurred on May 10; and four of the conversations occurred between May 10 and the employees' strike on May 24. The final unfair labor practice occurred on May 30, when a production supervisor suggested that an employee ought to tear up her union card, or she might be fired.
The usual remedy for unfair labor practices of this sort is a cease and desist order followed by an election. The courts and the Board have recognized, however, that some unfair labor practices are so serious that they completely destroy the possibility of conducting a fair election. When the employer's misconduct has dissipated the union's majority support, a bargaining order is the appropriate remedy, for it both acknowledges the majority support of the union prior to the violations and prevents the employer from benefiting from its own misconduct. See NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Franks Bros. Co. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944); Steel-Fab, Inc., 212 NLRB No. 25, 86 LRRM 1474 (1974); Trading Port, Inc., 219 NLRB No. 76, 89 LRRM 1565 (1975).
The question presented here is whether the Company's conduct in this case so seriously impeded the election process and undermined the strength of the Union that a bargaining order is an appropriate remedy.
Both the administrative law judge and the Board concluded that the 8(a)(1) violations seriously interfered with the possibility of a fair election. The administrative law judge found that the 8(a)(1) violations were extensive and pervasive and that the "possibility of erasing the effects of (such) past practices and of insuring a fair election by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order."
The Board agreed:
We conclude that these threats and actions of Respondent's agents described above may, of course, be presumed to have had a severe initial impact on the employees. We also conclude that the actions may be presumed to have had an impact that has destroyed the likelihood that a true picture of employee sentiment may now be obtained through the election process. * * *
Thus we find that Respondent's actions have rendered a fair election a slight possibility at best and that the unambiguous cards validly executed by a majority of the employees in the unit represent a more reliable measure of employee desires on the issue of representation than would an election and that the policies of the Act will be best effectuated by the entering of a bargaining order at the present time. (228 NLRB at ---, 94 LRRM at 1575.)
The Company does not dispute the finding that these conversations constituted unfair labor practices, but it contends that these conversations produced minimal impact and did not preclude a fair election. The Company characterizes the conversations as mere chit-chat among supervisors and employees who were friends and coworkers. It points out that the supervisors directed their comments to only a few of the 182 employees in the bargaining unit, that many of those employees were ardent union supporters who later went on strike, and that almost half the employees demonstrated their support for the Union by participating in the strike on May 24. These facts, the Company argues, demonstrate that the unfair labor practices produced no impact upon the loyalties of the employees to the Union.
The Board and the Union, on the other hand, argue that the evidence supports the Board's determination that the unfair labor practices did erode the employees' support for the Union. They suggest that the close relationship between the employees and the supervisors gave added credibility to the supervisors' statements, thereby increasing the anti-union impact of their comments. The Board and Union further suggest that, because of the tendency of information and rumors to travel rapidly through a small plant, the comments in question likely affected more than the small number of employees directly involved in the conversation. Finally, the record shows that fewer than half the employees participated in the strike, whereas a majority had earlier signed authorization cards; the Board and Union argue that this evidence demonstrates that the Company's...
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