N.L.R.B. v. Apple Tree Chevrolet, Inc.

• Decision Date: 03 March 1982
• Docket Number: No. 81-1277,81-1277
• Citation: 671 F.2d 838
• Parties: 109 L.R.R.M. (BNA) 2946, 93 Lab.Cas. P 13,287 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. APPLE TREE CHEVROLET, INC., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 838

671 F.2d 838

109 L.R.R.M. (BNA) 2946, 93 Lab.Cas. P 13,287

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. APPLE TREE CHEVROLET, INC., Respondent.

No. 81-1277.

United States Court of Appeals Fourth Circuit.

Argued Nov. 6, 1981.

Decided March 3, 1982.

Sara McLaurin Green, 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, John G. Elligers, Washington, D.C., on brief), for petitioner.

Asa Ambrister, Washington, D.C. (George V. Gardner, Gardner, Ambrister & Smith, Washington, D.C., on brief), for respondent.

Before RUSSELL, ERVIN and CHAPMAN, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The National Labor Relations Board has a second time petitioned this court for enforcement of its bargaining order against Apple Tree Chevrolet, Inc. Following the first hearing of this case, we remanded the case to the Board for reconsideration of its bargaining order in light of the final results of a representation election held in February 1977. ¹ While the Board has concluded that a bargaining order remains appropriate, ² we disagree, and accordingly deny enforcement of the Board's order.

The facts relevant to this appeal are fully set forth in our previous opinion. In short, efforts to organize the respondent's nonsales employees began in early January 1977. During the ensuing organizational campaign, the employer engaged in a number of actions later found by the Board to constitute violations of 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 151-69, including the solicitation of employee grievances, the announcement of benefits, and coercive interrogation. The Board also decided that four employees had been discriminatorily discharged in violation of 8(a)(3). Although we affirmed the Board's findings as to the 8(a)(1) violations we concluded that there was insufficient evidence to support findings of 8(a)(3) violations.

The representation election was held on February 25, 1977. The initial vote tally showed a Union ³ victory by a twenty-three to seventeen margin, with seventeen votes challenged and uncounted. After overruling eleven of the challenges, and prior to our decision upholding the four employee discharges in question, the Board conducted a final tally, which resulted in a twenty-seven to twenty-four Union victory. On remand, however, because of the commingling of ballots, the Board was unable to identify the votes of the four employees determined by us to have been legitimately discharged. Thus, because the four dischargees were ineligible to vote, and because the three-vote difference in the final tally indicated that their votes might have affected the outcome of the election, the Board was forced to disregard the election results. Now, instead of calling for a new election, the Board seeks enforcement of its bargaining order.

The proper starting point in an analysis of this case and the many cases like it is an awareness that our nation's labor policies have never included a preference for imposing a collective bargaining representative upon those who have not affirmatively chosen that representative by election. ⁴ As we stated in our initial decision in this case, "an election, not a bargaining order, remains the traditional, as well as the preferred, method for determining the bargaining agent for employees." 608 F.2d 988, 996 (4th Cir. 1979). See J.J. Newberry Co. v. NLRB, 645 F.2d 148, 153-54 (2d Cir. 1981). Although the Board in its brief has correctly identified the standard laid down by the Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), according to which the propriety of a bargaining order is to be measured, the Board has misconstrued the breadth of its discretion.

In Gissel, the Court allowed that a bargaining order should issue "(i)f the Board finds that the possibility of erasing the effects of past (unfair labor) 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." 395 U.S. at 614-15, 89 S.Ct. at 1940-41. Nonetheless, to avoid the appointment of bargaining agents not desired by employees and to encourage reliance upon elections as the preferred method for determining bargaining agents, we emphasize once again that a bargaining order is appropriate only when the Board's findings and analysis under the Gissel standard are "specific" and "detailed." See 608 F.2d at 997. See, e.g., NLRB v. Rexair, Inc., 646 F.2d 249, 251 (6th Cir. 1981); Red Oaks Nursing Home, Inc. v. NLRB, 633 F.2d 503, 508-10 (7th Cir. 1980); NLRB v. Jamaica Towing, Inc., 602 F.2d 1100, 1104-05 (2d Cir. 1979); NLRB v. Armcor Industries, Inc., 535 F.2d 239, 244-45 (3d Cir. 1976). The Board's discretion to issue a Gissel order is accordingly limited by the requirement that there be "a sufficient factual basis." 608 F.2d at 992. See NLRB v Yeshiva University, 444 U.S. 672, 691, 100 S.Ct. 856, 867, 63 L.Ed.2d 115 (1980).

Acknowledging that authorization cards indicated that the Union once commanded the sentiment of a majority of the employees, we remanded this case to permit the Board a second opportunity to make findings sufficient to establish the dissipation of that majority, the continuing effects of the employer's misconduct, and the ineffectiveness of the usual remedies. The Board has failed to make such findings. Implicit in our earlier opinion was the need for the Board to gather additional testimonial or documentary evidence to substantiate what were and continue to be only conclusory statements clothed with little more than transparent factual generalities. Instead of taking more evidence, however, the Board in its Supplemental Decision and Order and in its most recent briefs has simply reworded the reasoning on which it depended in its earlier appeal herein.

We reiterate that we do not dispute the Board's determination that the employer was guilty of 8(a)(1) violations, but at the same time we stress again that 8(a)(1) violations alone are not enough to support a Gissel order. See Red Oaks Nursing Home, Inc. v. NLRB, 633 F.2d 503, 510 (7th Cir. 1980). The continuing impact of those violations is the important matter. 608 F.2d at 999. The evidentiary record on this appeal is no different than the record presented to us previously. Consequently, we have no more reason now than before to find the solicitation of grievances, the announcement of benefits, or the interrogation of employees so coercive in long-term impact as to render the likelihood of a fair rerun election nonexistent or even highly improbable. Furthermore, we have no indication that the employer's misconduct will recur or that the Board's ordinary remedies of a cease and desist order and a posted notice will not suffice to ensure that any future election is untainted by the effects of previous 8(a)(1) violations. ⁵

Finally, we noted in our prior decision that the "really significant fact" in each of the cases reviewed in Gissel was the dissipation of a previous union majority. 608 F.2d at 1000. In this case, whether the Union...