Bandag, Inc.

BANDAG, INCORPORATED Bandag, Incorporated and Local 1016, International Union of Electrical, Radio, and Machine Workers, AFL-CIO. Cases 16-CA-5847, 16-CA-5932, and 16-RC-6809 March 24, 1977 SUPPLEMENTAL DECISION AND ORDER On June 24, 1976, the National Labor Relations Board issued a Decision, Order, and Certification of Results in the above-entitled proceeding' in which the Board adopted the Administrative Law Judge's findings that Respondent had violated Section 8(a)(1) and (3) of the Act. A majority of the Board, however, did not adopt the Administrative Law Judge's recommendation that Respondent be or- dered to bargain with the Union. Rather, it certified the results of the election in Case 16-RC-6809.2 Thereafter, on July 14, 1976, the Charging Party filed a motion for reconsideration, rehearing, and/or reopening of the record requesting that the Decision in this case be vacated and set aside to the extent that it failed to order Respondent to bargain with the Union. On August 4, 1976, the General Counsel filed a motion for reconsideration, also requesting the Board to issue a bargaining order. On August 16, Respondent filed an opposition thereto. On September 14, 1976, the Board, through its Acting Executive Secretary, issued a Notice To Show Cause why the Board should not grant the Charging Party's and General Counsel's motions. On Septem- ber 28, 1976, the Charging Party filed a response to the Notice To Show Cause, and on September 27 and November 8, 1976, Respondent filed replies to the notice. We have considered the motions of the General Counsel and Charging Party, Respondent's opposi- tion thereto, and the replies to our Notice To Show Cause, and have decided to grant the Charging Party's and General Counsel's motions. In the earlier Decision, the majority's refusal to issue a bargaining order was based on its holding that there did not appear to be meritorious objec- tions before the Board upon which to set aside the election, as mandated by our decision in Irving Air Chute Company, Inc., Marathon Division, 149 NLRB 627 (1964), enfd. 350 F.2d 176 (C.A. 2, 1965). 1 225 NLRB 72 (1976). Following the hearing in this case , Respondent filed a motion to reopen the record in order that the Board consider evidence of employee turnover since the election and its effect on the efficacy of issuing a bargaining order in lieu of directing a second election . In view of our disposition of the case in the previously issued Decision, we denied the motion because the evidence sought to be admitted was irrelevant. In view of our disposition of the proceeding in this Supplemental Decision , Respondent's motion is denied as 228 NLRB No. 122 1045 The majority of this Board adheres to the position that, where there has been an election, it will not issue a bargaining order based on unfair labor practices in the absence of pending meritorious objections to that election. However, it now appears to us that the facts in the instant case do not present such a clear-cut situation. As we found in our original Decision, the Charging Party had filed timely objections to the election. Such objections stated, inter alia: The above-named employer through his plant manager, supervisors, and other non-bargaining unit employees engaged in inproper (sic) conduct and or unfair labor practices as defined in Section 8(a)(1) of the Act. In so doing, the Employer destroyed the laboratory conditions affording a free choice. This was followed by five enumerated paragraphs describing allegedly objectionable material sent by the Employer to its employees. Following these paragraphs was the following: By the above and other acts, the above-named Employer has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On March 13, 1975, the Union filed unfair labor practice charges alleging postelection misconduct by Respondent Company. In his Report on Objections and Notice of Hearing issued on March 25, 1975, the Regional Director for Region 16 approved Petitioner's March 19 request that the five enumerated objections be withdrawn. He also noted that his postelection investigation had revealed other evidence of preelection conduct on the part of the Employer which could best be resolved by a hearing, and he ordered that such a hearing be conducted. As noted in our earlier Decision, the instant hearing resulted from a complaint issued on the unfair labor practice charge, and the direction of a hearing by the Regional Director. As a result of this hearing, the Administrative Law Judge not only found violations of Section 8(a)(1) and (3), but also found that preelection activity on the part of Respondent, uncovered by the Regional Director's investigation, did interfere with the conduct of the lacking in merit. It is well settled that the Board is not precluded from issuing a bargaining order even though time has passed and a substantial turnover of personnel has occurred since the commission of the unfair labor practices. N.LRB. v. Bernie Katz, d/b/a Williamsburg Steel Products Co, 369 U.S. 736 (1962); New Alaska Development Corp , Alaska Housing Corporation, 180 NLRB 971 (1970). 2 Chairman Murphy concurred and Members Fanning and Jenkins dissented. 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election. He therefore recommended the issuance of a remedial Gissel bargaining order.3 Upon consideration, we now find that the facts show that the Charging Party had not renounced its interest in disputing the results of the election by its March 19 withdrawal of the five enumerated objec- tions. Rather, the remainder of its objections were still on file with the Board, and its position concerning election misconduct was preserved. Un- der the circumstances presented herein, these re- maining objections were sufficient to support the objectionable misconduct found by the Administra- tive Law Judge. We also find, in agreement with the Administrative Law Judge, that the 8(axl) and (3) violations herein called for a remedial bargaining order.4 In the recent decision in Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB (1977), a majority of this Board stated that in cases such as this, where the respondent has committed violations of Section 8(a)(1) and (3) which preclude the holding of a fair rerun election, we will issue a remedial bargaining order. We also stated that, in the absence of an 8(a)(5) refusal-to-bargain allegation and, in the absence of a demand for recognition by the Union, we will order that the respondent bargain with the union as of the date on which such respondent embarked on its campaign of unfair labor practices. In the instant case, it appears that Respondent had engaged in such practices at least as early as October 1974, the period during which the Union began its organizational campaign. However, the evidence shows that the Union did not represent a majority of the bargaining unit employees until some time thereafter. We will therefore require Respondent to bargain with the Union as of an ascertainable date when it is shown the Union did represent a majority of the employees. As found by the Administrative Law Judge, the vast bulk of the Union's authorization cards were signed in October and November 1974 and, at least by December 19, 1974, the Union represented a majority of the unit employees. We will therefore order that Respondent bargain with the Union as of the latter date.5 For all the foregoing reasons, we rescind the Order in our prior Decision insofar as it failed to order Respondent to bargain with the Union. We also rescind the Certification of Results of Election in Case 16-RC-6809, and will dismiss the petition in that proceeding. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, and hereby orders that the Respondent, Bandag, Incor- porated, Abilene, Texas, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election in Case 16-RC-6809 be set aside and that the petition be, and it hereby is, dismissed. 3 N.LRB. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 4 Although Members Fanning and Jenkins do not dispute the ma jority's interpretation of the facts herein, and the finding that there were objections pending before the Board, and they concur in the issuance of the bargaining order, they adhere to the reasoning expressed in their partial dissent in the original Decision. 5 For the reasons given in their separate opinions in Beasley, supra Members Fanning and Walther would make the bargaining order prospec- tive in nature, and not retroactive, as does the majority. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employees concerning their union activities or the union activities of other employees. WE WILL NOT threaten to discharge or to take legal action against employees because of their union activities. WE WILL NOT threaten to withhold raises or benefits or to reduce benefits in reprisal against employees for voting for union representation, and WE WILL NOT promise employees increases in wages and benefits in exchange for voting against union representation. WE WILL NOT maintain or enforce our present rule against soliciting for union purposes and distributing union literature on company premises (rule 13 and its amendment), and WE WILL NOT maintain or enforce any rule which prohibits union solicitation and distribution of union literature but permits solicitations and distribu- tions on company premises for nonwork-related purposes. WE WILL NOT threaten to close the plant or to curtail plant operations in reprisal for union activities on the part of employees. WE WILL NOT, by any means or in any other manner, interfere with, restrain, or coerce em- ployees in the exercise of rights guaranteed them BANDAG, INCORPORATED 1047 by Section 7 of the Act. These rights include the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for their mutual aid and protection. WE WILL NOT, by discharge, suspension, or other means, discriminate against employees in order to discourage membership in Local 1016, International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization. All of our members are free to become or to remain members of that Union or any other union. WE WILL, upon request, bargain collectively with Local 1016, International Union of Electri- cal, Radio and Machine Workers, AFL-CIO, as the exclusive representative of our employees in a unit composed of all production and maintenance employees, and excluding all other employees, laboratory and quality control employees, office clerical employees, over-the-road truckdrivers, guards, and supervisors as defined in the National Labor Relations Act. WE WILL offer to Carlos Rodriquez full and immediate reinstatement to his former or substan- tially equivalent position, without prejudice to his seniority or other rights and privileges, and WE will, make whole Carlos Rodriquez and Orville Scott Hayes for any loss of pay which they have suffered by reason of the discrimination practiced against them, with interest thereon at 6 percent per year. BANDAG, INCORPORATED