N.L.R.B. v. Ultra-Sonic De-Burring, Inc., of Texas
| Decision Date | 20 March 1979 |
| Docket Number | DE-BURRIN,ULTRA-SONIC,INC,No. 78-1418,78-1418 |
| Citation | 593 F.2d 123 |
| Parties | 101 L.R.R.M. (BNA) 2086, 85 Lab.Cas. P 11,231 NATIONAL LABOR RELATIONS BOARD, Petitioner, v., OF TEXAS, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lynne E. Deitch, Atty. (argued), Washington, D. C., for petitioner.
Warren C. Ogden (argued), Bellevue, Wash., for respondent.
On Petition to Review a Decision of the National Labor Relations Board.
Before MERRILL and CHOY, Circuit Judges, and BONSAL, * District Judge.
The Board seeks enforcement of its order directing Ultra-Sonic to bargain with the Communications Workers of America, Local 9455. The order was based on alleged violations by the company of § 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3), occurring during a period when union representation was being discussed by employees, with the prospect of an election under consideration. The company concedes, for the purposes of this proceeding, that it committed violations of the Act in the respects charged: discharging two employees because of union activities; threatening cessation of business operations if the union won the representation election; and creating the impression that the union activities of employees were under surveillance. The company contends, however, that there is insufficient evidence to support issuance of a bargaining order in that the evidence does not support the proposition that the violations were of such a character as to render it unlikely that a fair election could be held.
In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Supreme Court discussed those instances in which a bargaining order may be justified. As the Board points out, Gissel did not hold that a bargaining order may issue only where there is a showing that the unfair labor practices actually undermined the union's strength. Gissel held that a bargaining order may also properly be issued where the employer's unfair labor practices have a Tendency to undermine majority strength and impede the election process. 395 U.S. at 614, 89 S.Ct. 1918. Gissel and subsequent cases have focused upon the nature of the unfair labor practices to determine whether the possibility of having a fair election by the use of traditional remedies is slight. Id. at 614, 89 S.Ct. 1918; NLRB v. Triumph Curing Center, 571 F.2d 462, 476 (9th Cir. 1978). Consideration has been given to the number and severity of the unfair labor practices. See NLRB v. Broadmoor Lumber Co., 578 F.2d 238, 242 (9th Cir. 1978). A determination by the Board that such conditions exist will not be upset where substantial evidence on the whole supports the Board's conclusion. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 436 (1951); NLRB v. Pacific Grinding Wheel, 572 F.2d 1343 (9th Cir. 1978).
The company contends that the record establishes that the union did not obtain a card majority until after the violations had occurred, and that...
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