Glomac Plastics, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glomac Plastics, Inc. and Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC. Case 3- CA-5274 March 22, 1979 SUPPLEMENTAL. DECISION BY CHAIRMAN FANNING ANI) MEMBERS JENKINS AND TRUESDALE On March 9, 1978, the National Labor Relations Board issued its Decision and Order in this proceed- ing' finding, inter alia, that Respondent violated Sec- tion 8(a)(5) of the Act by engaging in bad-faith bar- gaining with the newly certified Union with no intention of reaching final agreement within the Union's certification year. To remedy that unfair la- bor practice, the Board extended the Union's certifi- cation year for an additional year. Thereafter, a petition for review and cross-applica- tion for enforcement of an Order of the National La- bor Relations Board was filed with the United States Court of Appeals for the Second Circuit. The court sustained all of the Board's findings and conclusions.2 Although the court felt bound to enforce the Board's Order under its rule in N.L.R.B. v. Patent Trader, Inc., 426 F.2d 791 (2d Cir. 1970), it was troubled by the Board's delay of over 4 years between the issu- ance of the Administrative Law Judge's Decision and the Board's decision. In view of these consideration, the court concluded that, even though it could not take cognizance of (1) the alleged changes in the bar- gaining posture of the Company, (2) the claimed em- ployee turnover, or (3) the abandonment of the unit by the Union, it was only fair to all concerned that the Board should have the opportunity to reconsider whether entry of a bargaining order now remains ap- propriate. The court stated it would withhold for 60 days the entry of judgment enforcing the Board's bar- gaining order and remand the case to the Board for such further consideration and any revision of the remedy as it deems advisable. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the court's remand, and the parties' statements of position relating thereto3 1234 NLRB 1309 (1978) 2 Glomac Plastics, Inc. v. N. L. R.B., 600 F.2d 3 (2d Cir. 1979). 3Respondent's motion to reopen the record to receive evidence of: (a) the abandonment of the unit by the Union; (b) good-faith bargaining from Oc- tober 5, 1973, through June 4. 1974: (c) almost complete turnover in the bargaining unit: and (d) total absence of negative impact of any unfair labor practices committed prior to April 4, 1973, upon the present representational and hereby affirms its original Order requiring Glo- mac Plastics, Inc., to bargain with the Union, as the duly certified representative of Respondent's employ- ees. Such an Order is the only effective remedy for the violations found. Its implementation at this time is required, in our judgment, despite the unfortunate passage of time since our original decision, in order to effectuate the purposes of the Act. To do otherwise would give an employer an incentive to disregard its duty to bargain in the hope that over a period of time a union will lose its majority status or abandon the unit, and the employer will then not be required to bargain or can seek a new election. This is apparently what Respondent urges here, notwithstanding the fact that there has been a Board election, the Union was duly certified, and Respondent thereafter refused to bargain in good faith. The delay by the Board in reaching a decision may be an injustice to the victims of Respondent's unfair labor practice, i.e., the em- ployees who have been denied their right to bargain through a representative of their choice.' The employ- ees here, however, do not petition us to free Respon- dent from the bargaining order remedy and such a petition would, in any event, be irrelevant for the Board enforces the statute to implement public rights thereunder and not to adjudicate private disputes.' For the foregoing reasons, we find that the bargain- ing remedy remains appropriate, even assuming the accuracy of Respondent's claim of substantial em- ployee turnover in the unit, and/or abandonment of the unit by the Union. Accordingly, we hereby affirm the remedy and Order heretofore issued. status of the Union or the prospect for holding a fair and impartial election to determine the actual nature of present employee sentiment toward the Union, is hereby denied. ' The bargaining order might have the practical effect of forcing the cur- rent employees to be represented temporally by a union for which a majority of them have not theretofore expressed support. However, as the court noted in N.L R.B. v. Patent Trader, Inc., rupra, any temporary imposition of em- ployees' rights arising from enforcement of a bargaining order at this time can be ameliorated to some extent by the Board notification to the unit employees of their right to petition for decertification when appropriate. Thus. upon enforcement of the Board's Order, a revised notice to employees will be prepared and forwarded to the Company for posting in which the following par. 8 will be inserted: Employees, pursuant to Section 9(c)( 1) of the National Labor Relations Act, may petition the National Labor Relations Board for an election to decertify and remove the Union as their bargaining representative. The filing of such a petition can only be done as the voluntary act and choice of the employees and on their own initiative, without coercion, encour- agement or assistance from management. All applicable rules, regula- tions and standards for conducting such an election must be met, 'Any delay has hardly denied justice to the wrongdoer Respondent, for it has, during the penod of delay, enjoyed the fruits of its misconduct-miscon- duct which was directed precisely at avoiding the bargaining obligation Re- spondent still seeks to avoid. The necessity for the bargaining order remedy here is made even more patent by Respondent's effort (fn. 3, above) to con- tinue to profit from its misconduct by seeking to reopen the record to intro- duce evidence of a type which the court of appeals expressly held could not be considered. Its own such action makes hollow Respondent's objections to the delay here. 241 NLRB No. 93 348