John Cuneo, Inc v. National Labor Relations Board

• Decision Date: 24 January 1983
• Docket Number: No. 82-455,82-455
• Citation: 459 U.S. 1178,103 S.Ct. 831,74 L.Ed.2d 1025
• Parties: JOHN CUNEO, INC. v. NATIONAL LABOR RELATIONS BOARD et al
• Court: U.S. Supreme Court

459 U.S. 1178

103 S.Ct. 831

74 L.Ed.2d 1025

JOHN CUNEO, INC.

v NATIONAL LABOR RELATIONS BOARD et al

No. 82-455

Supreme Court of the United States

January 24, 1983

On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.

The petition for writ of certiorari is denied.

Justice REHNQUIST, with whom Justice POWELL joins, dissenting.

In affirming the NLRB's decision in this case, the Court of Appeals for the District of Columbia Circuit held, inter alia, that (1) a bargaining order to the employer was an appropriate remedy; (2) the bargaining order could be retroactively applied from the date the employer first denied recognition of the Union; and (3) because of the employer's actions during the strike, what began as an economic strike was converted into an unfair labor practices strike ab initio, justifying reinstatement of striking employees irrespective of whether the employer had hired replacements for the strikers. 681 F.2d 11 (1982). In my opinion, all three of these holdings raise serious and important questions which recur with frequency before the NLRB. Because the NLRB and Court of Appeals, in resolving these questions, have charted new courses in areas previously mapped out only by this Court, I would grant certiorari to review these determinations.

Petitioner, located in Chattanooga, Tennessee, manufactures and sells fire protection sprinkler systems. On September 16, 1977, representatives of the Road Sprinkler Fitters Local Union No. 669 presented to the Company President, Bob Splawn, union authorization cards signed by eleven of the Company's fourteen fabrication shop employees. Splawn refused to recognize the Union. On September 21 the eleven employees went on strike; the strike continued until November 14, when seven of the strikers made unconditional offers to return to work.

The NLRB determined that the Company committed several unfair labor practices throughout this period in violation of sections 8(a)(1), 8(a)(3), and 8(a)(5) of the Labor Management Relations Act, 29 U.S.C. § 158(a)(1), (3), (5) (1976). While contested below, these findings of fact are not at issue here. First, on two separate days before the strike, Company officials interrogated a senior employee, Gerald Hall, seeking to ascertain the identities of the employees who signed union authorization cards; at one point Hall was threatened with discharge if he did not cooperate, but soon thereafter Company officials disclaimed a desire to discharge Hall. Second, the Company created the "impression of surveillance" by two actions: prior to the strike, a Company supervisor was directed to find out who had signed the union authorization cards; and on two separate days early in the strike, Company officials took photographs of picketing strikers. Third, after the strike was terminated, the Company unnecessarily delayed in reinstating striking employees to available positions. Fourth, when the first two striking employees were reinstated in February of 1978, Splawn told them not to talk about the Union on the job. Fifth, in February of 1978 the Company promulgated a new rule providing that an employee would be discharged if late for work three times; the new rule was discriminatorily applied against the reinstated strikers.

The Bargaining Order. In NLRB v. Gissel Packing Co., 395 U.S. 575, 614, 89 S.Ct. 1918, 1940, 23 L.Ed.2d 547 (1969), this Court held that if "at one point the union had a majority" and the employer has engaged in unfair labor practices "to undermine majority strength and impede the election processes," then the NLRB can consider issuing a "bargaining order." Such an order requires the employer to negotiate with the union, foregoing the normal election procedures in which the union must demonstrate its majority status. The Court cautioned, however, that this remedy was to be used sparingly, in situations where the NLRB "finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) 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." Id., at 614-615, 89 S.Ct., at 1940. The Court emphasized that there are "less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order." Id., at 615, 89 S.Ct., at 1940.

The Court of Appeals' application of these principles is debatable in two respects. First, the court determined the seriousness of the Company's unfair labor practices by focusing on the type of practice committed, rather than the extent to which the practices occurred. The Court of Appeals said that "[c]ourt and board cases often have viewed unfair labor practices similar to the ones in this case—interrogation, threatened discharge, surveillance, discriminatory application of work rules—as conduct which supports the issuance of a bargaining order." 681 F.2d, at 23. Most any "type" of unfair labor practice would rise to the level of misconduct contemplated by Gissel if committed with sufficient frequency; but Gissel contemplated that the extent of the practices should be given significant weight in determining the seriousness of an unfair labor practice.

Second, the court ruled that " 'Gissel does not require a finding that no other remedy could suffice, only that the bargaining order better protects employees' expressed union preference.' " 681 F.2d, at 24 (quoting Amalgamated Clothing Workers v. NLRB, 527 F.2d 803, 807 (CADC 1975), cert. de- nied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976)). The Court spoke plainly in Gissel, however, emphasizing that in addition to finding that the employees' union preference would be better protected, before a bargaining order is issued it must be determined that "the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight." 395 U.S., at 614, 89...