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National Labor Relations Board v. Drives

January 20, 1971


Swygert, Chief Judge, and Kiley and Stevens, Circuit Judges.

Author: Stevens

STEVENS, Circuit Judge.

The questions presented by the Labor Board's petition for enforcement are (1) whether its unfair labor practice findings are supported by the record, and (2) whether those findings adequately support the Board's conclusion that a bargaining order will better protect the employees' right of free choice than would an election. We have decided to enforce the Board's order with one modification.


Respondent has been engaged in the manufacture and sale of chains, augers, and related products in Fulton, Illinois, for about ten years. The size of its production and maintenance force increased from 58 employees in 1962 to 155 in 1966. In an election in 1962, 51 of the employees voted against the union.*fn1

This proceeding arose out of the union's second attempt to organize the plant. On September 22, 1966, at least 84 employees had signed cards authorizing the union to act as their collective bargaining agent. On the basis of its majority status, evidenced by the cards, the union requested recognition. The company refused; referring to the "similar request" four years earlier, it suggested that the union ask the Labor Board for an election. Before the refusal was received, the union had filed a petition for an election pursuant to § 9(c) of the National Labor Relations Act, 29 U.S.C. § 159(c). That petition was processed by the Regional Director of the Board's Thirteenth Region as representation case No. 38-RC-289.

On October 19, 1966, an Agreement for Consent Election was approved, and an election by secret ballot was set for November 4, 1966. On that date there were approximately 141 eligible voters in the bargaining unit, of whom 129 cast ballots. The union lost the election by a vote of 72 to 53, four votes having been challenged.

After the election, the union initiated unfair labor practice proceedings by filing a series of charges against the company. These charges were processed by the Board's General Counsel as complaint cases.*fn2 In addition, in the representation case, the union filed written "objections to conduct of employer which affected the results of the election"; based on those objections, the union requested that the election be set aside and that a second election be directed. Since certain common issues were raised by the challenge to the election in case No. 38-RC-289 and by the General Counsel's complaint, the proceedings were consolidated for hearings before the Trial Examiner. In his decision, the Examiner recommended (a) that the Regional Director set aside the election; and (b) that the Board entered a cease and desist order against the company, including a directive to bargain with the union.

The consolidated proceeding was then severed for further processing. In case No. 38-RC-289 the Regional Director accepted the Trial Examiner's recommendation and set aside the election. Pursuant to the Board's consent election procedures, that action is not appealable and is not before us for review.

In the severed complaint proceedings, the parties' exceptions to the Trial Examiner's decision were reviewed by a panel of the Labor Board. The Board modified the Trial Examiner's findings and recommendations in significant respects. Among the modifications was the rejection of the findings upon which the recommendation to the Regional Director that the election be set aside had been predicated. The Board nevertheless agreed with the Trial Examiner that the company should be ordered to bargain with the union.

At the time the bargaining order was entered, it was predicated on a finding that Respondent did not entertain a good faith doubt as to the union's majority status when it refused to recognize the union. Cf., Joy Silk Mills, Inc. v. NLRB, 87 U.S. App. D.C. 360, 185 F.2d 732, 741-742 (1950). Thereafter the Board changed its approach to bargaining orders and concluded that the existence or nonexistence of an employer's good faith doubt is "largely irrelevant" in determining the appropriateness of such an order. See NLRB v. Gissel Packing Co., 395 U.S. 575, 594, 23 L. Ed. 2d 547, 89 S. Ct. 1918. The Board's rather dramatic abandonment of a traditional approach which it had used for many years had the effect of eliminating the predicate for the bargaining order which it had entered in this proceeding. Accordingly, it decided to re-examine its decision in the light of the Supreme Court opinion in Gissel.

On November 7, 1969, the Board issued a Supplemental Decision and Order, reaffirming the order it had originally entered on July 3, 1968. The critical portion of the supplemental decision reads as follows:

"We agree with the Trial Examiner that Respondent's refusal to recognize the Union violated Section 8(a) (5), and that an order to bargain is appropriate. In doing so, we find that Respondent's extensive unfair labor practices so diminished the possibility of ensuring a fair election that employee free choice is more effectively ascertained by the use of signed authorization cards than by an election. Further, in the circumstances of this case, where Respondent's unfair labor practices are of such pervasive character, an order to bargain would be an essential part of any remedial order, even absent an 8(a) (5) violation."


The unfair labor practices found by the Board included violations of §§ 8(a) (1), (2), (3), and (5) of the Act.*fn3 Respondent unquestionably wanted its employees to reject the union. To this end, it directed certain activities at the employees as a group and, in addition, supervisory personnel communicated directly with individual employees. The union's objections to the election were based entirely on Respondent's plant-wide conduct; the Board's order, however, rests primarily on individual incidents. We shall first summarize the individual matters and then discuss Respondent's plant-wide anti-union conduct. The discussion will identify evidence tending to support the Board's findings and may also indicate the extent to which the record establishes a causal connection between Respondent's unfair practices and the union's loss of the support of about 30 employees after cards were signed and before the election.


The Board found that six of Respondent's employees were victims of coercive or discriminatory conduct.

1. Bernard Kostielney was given a union card early in September. A few days later, while talking to the personnel manager about another matter, he was asked if he had signed a union card, and told that " . . . anyone caught signing them in the plant or distributing them out would be disposed of." The Board found that Bernard Kostielney was "interrogated" and "threatened" in violation of § 8(a) (1). At the time of the hearing in May, 1967, Kostielney was living in California (presumably having left Respondent's employ voluntarily).

2. James Van Huizen signed an authorization card and became an official union organizer on August 17, 1966. Some time in October, after refusing to discuss the union with another employee until after work, Van Huizen was approached by Foreman Shaver and told that "if I was talking union talk, I could be fired on the spot." He replied, "I know my rights."

3. Blaine Kostielney was one of the General Counsel's principal witnesses. He was first hired by the company in early 1966 and had quit and been rehired twice prior to August 17, 1966. Shortly thereafter he became a union organizer.

He had a number of conversations about the union with his immediate supervisor, Gib Van Dyke, early in September. In Kostielney's presence Van Dyke advised Pat Tadlock, another organizer, not to "let anybody catch you with those cards." About two weeks later, Van Dyke told Kostielney that the plant supervisor (Whitten) knew Kostielney had gotten his card from Pat Tadlock and "he was going to take care of it." In another conversation Van Dyke predicted that the employees would lose bonuses and make less money, and "that the company would probably close the doors, if the union got in." He also told Kostielney that Hogue (the personnel manager) and Whitten "knew who the instigators were and they'd get fired eventually." On that occasion Kostielney asked Van Dyke if he was going to be fired and was told "No, but if Whitten knew what I know about it, you'd get fired."

The Examiner found that these statements gave Kostielney the impression that the employees' union activities were under surveillance and concluded that giving such an impression was "violative of Section 8(a) (1) as it could inhibit the right of employees to pursue their union activities untrammeled by the fear of possible employer economic coercion or other forms of retaliation."

On October 18 Kostielney asked Van Dyke for permission to attend a hearing that day in the labor representation proceeding. He had previously advised Van Dyke that he was a union organizer. Van Dyke took the request to the general foreman, Whitten, who stated that the union would have sent a letter asking for Kostielney if his assistance at the hearing was required; Whitten denied the request and further said that "anyone who left the plant today without a good excuse . . . would be fired." Kostielney had been given time off on many other occasions and there was no evidence that his presence in the plant on October 18 was required for production purposes. The Examiner concluded that the threat to fire Kostielney if he took time off to attend the hearing interfered with his § 7 rights in violation of § 8(a) (1).

On October 24 Kostielney was constructively discharged. The incident is the subject of conflicting evidence, but the Examiner was entitled to credit, as he did, the testimony that repeated contradictory orders and reprimands given to Kostielney by Van Dyke left him no choice but to quit. Even though he had voluntarily stayed home the preceding working day and grounds for discharge for cause existed, the record contains adequate ...

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