Impact Industries, Inc

794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Impact Industries, Inc and International Union of Automoblie Aerospace and Agricultural Imple- ment Workers of America (UAW) Cases 33- CA-4847, 33-CA-5177, 33-CA-5186, and 33- RC-2608 April 25, 1989 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 30, 1987, the National Labor Relations Board issued a Decision and Order' in this pro- ceeding, finding that the Respondent violated Sec- tion 8(a)(1), (3), and (5) of the National Labor Re- lations Act The violations, which occurred both before and after a Board-conducted election, in- cluded interrogations, threats of reprisals, promises and grants of benefits, and discharges Because of the seventy and pervasiveness of the unfair labor practices, the Board found that a bargaining order was appropriate under the test set forth in NLRB v Gissel Packing Co, 395 U S 575 (1969) The Respondent filed a petition for review with the United States Court of Appeals for the Seventh Circuit On May 18, 1988, the court enforced the Board's unfair labor practice findings, but remand- ed the case to the Board solely for consideration of evidence bearing on the propriety of the bargaining order 2 On July 21, 1988, the Board advised the parties that it accepted the remand and invited statements of position Thereafter all parties filed statements of position On September 29, 1988, the Board re- manded the case for an expedited hearing before an administrative law judge to allow the parties to present relevant evidence in light of the court's opinion On December 14, 1988, Administrative Law Judge Bernard Ries issued the attached Supplemen- tal Decision and Order on Remand, which recom- mended that the Board's original Decision and Order be affirmed The Respondent filed excep- tions and a supporting brief, the General Counsel filed a brief in support of the judge's decision, and the Charging Party filed cross exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered its original decision, the judge's supplemental decision, and the record '285 NLRB 5 2 Impact Industries v NLRB 847 F 2d 379 (1988) in light of the court's remand, which the Board ac- cepts as the law of the case, and the parties' state- ments of position, exceptions, and briefs, and has decided to modify the Board's prior decision by deleting the bargaining-order requirement and di- recting that a second election be held In its original decision, the Board concluded that the Respondent's unfair labor practices struck at the heart of employees' organizational campaign, that several violations were committed at employee meetings by the Respondent's highest official, its president, Carl Becker, and thus were likely to have a profound impact, that the Respondent's un- lawful grants of benefits were particularly resistant to traditional remedies because the Board does not require their recission, that the Respondent's addi- tional misconduct, including discharge of 13 em- ployees, was extensive and continued well past the election date, and that, consequently, the possibility of erasing the effects of the unfair labor practices and of conducting a fair second election by the use of traditional remedies was slight Accordingly, the Board held that employees' representation desires expressed though authorization cards would be better protected by issuing a bargaining order than by traditional remedies The Board recognized that there had been some employee turnover and a significant passage of time since the misconduct occurred, but concluded that withholding a bargaining order because of those factors would, in the circumstances of this case, reward the Respondent for its own wrongdo ing Although the Respondent filed a motion to reopen the record for introduction of further evi dence regarding turnover, the Board denied the motion on the ground that it would not affect the Board s issuance of a bargaining order The Seventh Circuit remanded the case, finding that the Board had not considered all the relevant evidence concerning traditional remedies before imposing a bargaining order Specifically, the court instructed the Board to consider evidence the Re spondent had attempted to present demonstrating that, since the election, employee turnover had reached at least 87 percent, and the Respondent was under new management unrelated to the origi nal owners The court stated, "As Impact correctly points out, any taint caused by its past activities would have been substantially dispelled by such [employee] turnover 3 Noting that the Respond- ent's co-owners at the time of the election had died, that the Respondent was presently managed by trustees, and that the interim between the elec- 9 Impact Industries supra 847 F 2d at 383 293 NLRB No 99 IMPACT INDUSTRIES 795 tion and the Board's decision was over 7 years, the court stated as follows This passage of time, coupled with the change in circumstances at the plant, would seemingly present a strong case in support of Impact's ar- gument that a second representation election should be conducted to permit the new work force at Impact to determine whether it wants to bargain with the UAW 4 The court termed the evidence the Respondent proffered of postelection changes "particularly rel- evant" in determining whether remedies short of a bargaining order might be appropriate, and in this connection the court observed If a fair and impartial election can be conduct- ed, a likely event in light of the high turnover in both the work force and management, a bargaining order is unnecessary To grant a bargaining order in any instance other than in the last resort (when other traditional remedies are available) constitutes an abuse of the Board's discretion 5 After a hearing ordered by the Board in accord with the court's remand, the judge found that em- ployee turnover and changes in the Respondent's management were largely in accord with the repre- sentations made by the Respondent to the court Carl Becker, the Respondent's president and major- ity shareholder when the unfair labor practices were committed, has died as has the Respondent's minority shareholder, George Finley Almost none of the Respondent's 1980 managerial and superviso- ry staff are currently employed by the Respondent Although the vice president of manufacturing has remained, he does not supervise employees The Respondent's current president Keith Berkout had no role in the commission of the unfair labor prac tices Of the Respondent's entire management com plement during that period, only two persons remain Keith Becker (Carl Becker's son), who su- pervises the machining department, and Larry Brock, the general foreman of the diecasting de partment Although each committed an unfair labor practice in 1980-creating the impression of sur- veillance and threatening an employee with dis- charge, respectively-the quantum of their miscon- duct is relatively slight compared with the totality of the Respondent's violations The judge further found that the unit increased from about 135 just prior to the election to about 263 as of October 21, 1988, and that about 90 per cent of the current unit employees were not em- 4 Id 5Id ployed by the Respondent when the 1980 unfair labor practices occurred However, the judge rec- ommended that the Board's original bargaining- order remedy be affirmed because the management changes, employee turnover, and passage of time cited by the court did not lessen the impact of the unfair labor practices, given their nature and extent We disagree Having accepted the Seventh Cir cuit's remand as the law of the case, however, we are bound by the court's rationale as it applies to this proceeding, and we cannot overlook the spe- cifics of the court's directive Indeed, the terms of the court's remand are highly instructive because, as stated above, the facts before us are essentially what the Respondent had represented them to be before the court of appeals The court required the Board to consider management and employee changes as "particularly relevant" in determining the propriety of a bargaining order remedy in the circumstances before us and stated that the Re- spondent had "seemingly present[ed] a strong case" in favor of a second election Guided by these statements and the courts additional instructions that because of high management and employee turnover, the prospect of a fair second election is "a likely event," we conclude that the impact of the Respondent's unfair labor practices has been mitigated to the extent that their effects can likely be erased through traditional remedies We there fore find that under the terms of the court's remand issuance of a bargaining order is not war- ranted 6 Accordingly, we shall delete the bargaining order from our original Order, reopen the repre- sentation proceeding, and direct that a second elec tion be held ORDER The National Labor Relations Board orders that paragraphs 1(o) and (p) and 2(a) be deleted from the Board's Decision and Order reported at 285 NLRB 5 (1987) IT IS FURTHER ORDERED that Case 33-RC-2608 is reopened and that all prior proceedings held thereunder be reinstated B Although the Charging Party contended in its cross exceptions that a bargaining order is the most appropriate remedy it argued in the alterna Live that should the Board order a rerun election certain extraordinary remedies were necessary to ensure a fair second election However in view of our finding above based on the terms of the court s remand that changed circumstances have substantially dispelled the effects of the unfair labor practices we further find that our traditional remedies are sufficient to permit the exercise of free choice in a rerun election We therefore deny the Charging Party s request for additional remedies ' It is not necessary to reaffirm our poor Order because as noted above the court of appeals except for the bargaining order provisions enforced it in all respects 796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that Case 33-RC-2608 is severed and remanded to the Regional Director for Region 33 for the purpose of conducting a second election pursuant to the direction set forth below [Direction of Second Election omitted from pub- lication ] Deborah A Fisher Esq, for the General Counsel Wayne Giampietro Esq and Gregory Freersken Esq (Witwer Burlage Poltrock & Giampietro), of Chicago, Illinois, for the Respondent Irving M Friedman Esq (Katz Friedman Schur & Eagle), of Chicago Illinois, for the Charging Party SUPPLEMENTAL DECISION AND ORDER ON REMAND BERNARD RIES Administrative Law Judge On July 30, 1987, the Board substantially adopted (285 NLRB 5) a decision rendered on March 25, 1982, by Administra tive Law Judge Harold Bernard Jr including a recom mendation by the latter that a bargaining order be issued in favor of the Charging Party Union under the author ity of NLRB v Gissel Packing Co, 395 U S 575 (1969) On petition to review, however, the United States Court of Appeals for the Seventh Circuit , while agreeing with the findings of violations made below, concluded that the Board failed to consider all the relevant evi dence concerning the availability of other, more tradi tional remedies before issuing a broad bargaining order Impact Industries v NLRB, 847 F 2d 379 (1988) The court noted that Respondent Impact Industries Inc had attempted without success on three occasions during the course of the administrative proceedings to bring to the attention of the administrative law judge and the Board certain facts which Respondent deemed relevant to the Gissel remedy namely, a turnover in its work force ap proaching 90 percent since the union campaign in 1980 and changes in management In the court s view such changes in circumstances " together with the fact that more than 7 years had elapsed between an election lost by the Union on May 16 1980 and the Boards 1987 Order merited consideration by the Board in relation to the proposed bargaining order On July 21 1988, the Board wrote to the parties de Glaring that it had decided to accept the remand from the Court of Appeals" and inviting statements of posi tion On September 29, 1988, after reviewing the state ments filed by all parties the Board issued an Order re manding the case for 'an expedited hearing [to] be held before an administrative law judge to be designated by the Chief Administrative Law Judge" I was duly ap pointed on October 12 and a hearing was held in Chica go Illinois, on November 1 Briefs were received from the parties on or about November 29 The Boards Order of September 29 instructs me to prepare a supplemental decision containing findings conclusions and recommendations based on all the record evidence Those findings conclusions and rec ommendations follow I THE UNFAIR LABOR PRACTICE PROCEEDING The 1982 decision issued by Administrative Law Judge Bernard discloses that the union campaign com menced at Respondents Sandwich, Illinois die castings plant in February 1980 At that time the plant employed about 118 production and maintenance employees a sub stantial number of whom were aliens of Mexican descent The union effort quickly produced 106 signed authoriza tion cards from the bargaining unit employees, the validi ty of these cards was not tested at the hearing because the Respondent agreed to stipulate that the Union had obtained a majority of valid cards at all material times Judge Bernard found that although Respondent s counsel had provided advice about the lawful conduct of an antiunion campaign , the advice was not followed Employees who wore UAW buttons and stickers were told by one supervisor that Respondents president and majority owner Carl Becker, isn t going to like it and that the result of voting for the Union would be a reduc tion in existing benefits Employees were unlawfully told that they would receive no wage increases until the union activities terminated Employees were informed by a working supervisor on several occasions that President Becker had threatened plant closure if the Union secured bargaining rights The same supervisor asked an employ ee wearing a union button how the union meetings were going, and another supervisor unlawfully and repeatedly questioned employees about their sentiments Respondent liberalized employee breaktimes and vaca tion benefits, and put on an elaborate display of a new service award plan involving the award of jewelry this is the kind of well timed bestowal of benefits con demned by the Supreme Court in NLRB v Exchange Parts Co, 375 US 405, 409 (1964), as suggestive of a fist inside the velvet glove A supervisor told employ ees that selection of the Union would result in loss of benefits and, consequently, bargaining from scratch Em ployees were notified by Owner Becker at preelection meetings in circumstances violative of Section 8(a)(1) that if they had problems they could bring them to man agement for resolution The record also showed express and implied promises of benefits by supervisors to em ployees sustained surveillances of employees who en gaged in handing out union literature unlawfully moti vated exclusion of former employees from plant proper ty, and a coercive public admonition of a union activist by Chairman Becker Although the Union secured signatures on 106 cards, it lost an election held on May 16 1980 by a vote of 59 to 49, with 9 viable challenged ballots Even after the elec tion as Judge Bernard found and while the Union s ob jections to the conduct of the election were pending Re spondent persisted in attempting to emphasize its role as the source from which future benefits must flow and which may dry up if it is not obliged Ibid Becker, on request immediately granted a longstanding (and previ ously denied) request by the inspection department em ployees for reversion to a former work schedule and paid lunch period In July a supervisor threatened an employee with discharge for talking about a union In September, another supervisor relayed the word to an IMPACT INDUSTRIES 797 employee that Becker had promised a wage increase in exchange for support of the Company In October, an employee who had openly espoused the union cause re ceived a written warning in circumstances which led the administrative law judge to conclude that the warning had been inspired by union animus In that same month, with respect to two especially active pro union supporters Respondent also unlawful ly converted into a termination the layoff of one of them and avoided reinstating the other, which actions were held to be violative of Section 8(a)(3) In December, a supervisor repeated to two employees (7 months after the election and while the objections were still pending) that if the Union `got in,' Respondent would close the plant The most significant finding, however, was the conclusion that between October and December, Re spondent caused the termination or constructive dis charge of 11 Mexican aliens by either directly terminat ing them or by instigating an investigation of their status by the Immigration and Naturalization Service, causing some to quit the motivation to reduce its large comple ment of Mexican alien employees was found to reside in Respondents proven knowledge that, earlier in the year, 35 of the 36 such employees had signed UAW cards On the foregoing findings, Administrative Law Judge Bernard recommended that the Board issue an order containing the traditional remedial provisions as well, and an order requiring Respondent to bargain with the UAW as the representative of the unit employees On July 30, 1987, the Board agreed with most of Judge Ber nard s conclusions and, specifically, with the propriety of the recommended bargaining order, it also expatiated at some length in its decision about the reasons for exercis ing such authority under Gissel Packing Co As indicated earlier the Respondent made several of forts at the administrative law judge and Board levels to reopen the record for the purpose of showing employee turnover and changes in management and supervision evidence aimed directly at the bargaining order Al though these efforts had been fruitless the Seventh Cir cuit ordered the Board to receive and consider the prof fered evidence which I now set out below II THE CURRENT SITUATION The facts produced at the remand hearing are with some elaboration and one major exception, what Re spondent had represented to the court Since 1980, Carl Becker, Respondents dominant force -the term used by the current president for the former chairman of the board and majority stockholder-and the minority stock holder, George Finley have both died The Becker stock in Respondent is held in trust as Becker s will in structs, for the benefit of his five children the present executors of the Becker will, and trustees of the trust, are Samuel W Witwer Jr who represented Respondent in the underlying litigation here and Donovan Chester an accountant located in Peoria, Illinois, who has been a member of Respondents board of directors since before 1980 Neither man is active in the day to day operation of the business, nor do they appear to have any personal interest in or income from (other than customary fees) the trust asset However, Becker s will affords them un limited authority to participate in the management and conduct of the business of Impact Industries Most of the 1980 managers and supervisors are gone, in one way or another Besides Carl Becker the 1980 president and two vice presidents have left as has the personnel administrator The vice president of manufac turing in 1980, now 72 years old, is currently the vice president of special projects' and supervises no one A major change was the July 31 1985 accession of Keith Berkhout to the presidency (and the board of di rectors) Although Berkhout, now age 41, worked for Respondent in 1980 as the controller, he testified that he played no role in the anti UAW campaign, and his name does not appear in Judge Bernard s decision Berkhout s affidavit attached to Impact s statement of position after the remand was somewhat more definite than his subse quent testimony while the affidavit referred to unfair labor practices and any form of employee coercion' as activities of which I strongly disapprove and included a promise to do everything necessary to ensure that a rerun election occurs in a fair and proper environment he seemed more reticent at the hearing candidly conced ing that he did not believe that his employees needed a union, and failing to indicate that he would take any spe cial precautions to assure an election free from coercion Hey indicated that he would conduct a vigorous antiunion campaign ("Certainly we would do everything within the law to express our opinions and allow the employees a free choice ) I Two other former managerial employees remain Their roles will be discussed infra The size of the unit employee roster has increased sub stantially since the 1980 election from about 135 (see R Exh , the Apr 24 Excelsior list) to 263 as of October 21 1988 2 Also as of that date, there still remained on the payroll at least 25 bargaining unit employees who had been employed in 1980 and 6 former employees from that period who are now working supervisors At the time of the November 1 hearing, Respondent was com plying with the portion of the court s opinion which of firmed the Board s decision The required notices were posted at the plant One of the principal union activists Irene Ruiz-found by Judge Bernard to have been an especially active pro union supporter and also in Oc tober 1980, the victim of an 8(a)(3) discharge-having been offered reinstatement was scheduled to return to work the week following the instant hearing, and Re spondent had offered reinstatement to other discrimina tees who were able to furnish required work permits Respondents witnesses testified that since 1987, an effort has been made to sell the business, a decision reached by the trustees on behalf of the heirs A firm which specializes in such sales has been engaged and, ac cording to Respondent's witnesses at least one company is giving serious consideration to purchasing the business ' I think that Berkhout s unfortunate statement that he would weigh the proper and the improper way to do things was clearly in context not meant to suggest that he might choose the latter 2 R Exh 7 shows 263 unit employees and 13 working supervisors on that date 798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III THE APPLICABLE GISSEL PACKING PRINCIPLES This remand involves an application of Gissel Packing, supra, and it is useful to revisit some of the relevant prin ciples set out in that important case The Supreme Court held in Gissel that authorization cards, although admit tedly inferior to the election process, can adequately re flect employee sentiment when that process has been im peded," and then went on at some length to explicate why cards are, in the Court s view, not that much inferi or to an election ballot 395 U S at 603 3 The Gissel Court went on to explore the propriety of issuing a bargaining order as a remedy where an employ er has committed unfair labor practices which make un likely the holding of a fair election or a fair rerun elec tion It first pointed out that a nonmajontanan bargain ing order introduced no new principle (395 US at 610 611) We have long held that the Board is not limited to a cease and desist order in such cases, but has the authority to issue a bargaining order without first re quiring the union to show that it has been able to maintain its majority status See NLRB v Katz, 369 U S 736, 748, n 16 (1962), NL R B v P Lord lard C o, 314 U S 512 (1942) And we have held that the Board has the same authority even where it is clear that the union which once had possession of cards from a majority of the employees represents only a minority when the bargaining order is entered Franks B r o s C o v NLRB 321 U S 702 (1944) We see no reason now to withdraw this authority from the Board If the Board could enter only a cease and desist order and direct an election or a rerun it would in effect be rewarding the employer and allowing him to profit from [his] own wrong ful refusal to bargain, Franks Bros supra at 704, while at the same time severely curtailing the em ployees right freely to determine whether they desire a representative The employer could contin ue to delay or disrupt the election processes and put off indefinitely his obligation to bargain and any election held under these circumstances would not be likely to demonstrate the employees true undis torted desires [Emphasis added] The Court rejected employers claims that [T]he bargaining order is an unnecessarily harsh remedy that needlessly prejudices employees Sec tion 7 rights solely for the purpose of punishing or restraining an employer Such an argument ignores that a bargaining order is designed as much to S Although the Court did not say so it might be argued that signing an authorization card can be an especially cogent way of expressing a desire for union representation An employee who affixes his signature to a union card not knowing for sure who may eventually see the card will often be evidencing a conviction more profound than simply checking the Yes box on an an unsigned ballot in the anonymity of a voting booth It might also be noted that the extension of recognition based on authorization cards is a time honored method of achieving representative status e g Island Construction Co 135 NLRB 13 (1962) Hayes Coal Co 197 NLRB 1162 ( 1972) and gives rise to legally enforceable rights Toltec Metals v NLRB 490 F 2d 1122 (3d Cir 1974) remedy past election damage as it is to deter future misconduct If an employer has succeeded in under mining a union s strength and destroying the labora tory conditions necessary for a fair election, he may see no need to violate a cease and desist order by further unlawful activity The damage will have been done, and perhaps the only fair way to effectu ate employee rights is to re establish the conditions as they existed before the employers unlawful cam paign There is, after all, nothing permanent in a bargaining order, and if, after the effects of the em ployer s acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a representation petition (Id at 612, 613 ) In summarizing the factors which enter into a determi nation whether bargaining orders should be entered the Court noted that even the Fourth Circuit, which had re fused to validate as a general matter the use of cards as a foundation for a bargaining order had nonetheless left open the possibility of imposing a bargaining order, with out need of inquiry into majority status on the basis of cards or otherwise, in exceptional' cases marked by out rageous and pervasive unfair labor practices Id at 613 After suggesting approval of such an approach the Court said (at 614-615) The only effect of our holding here is to approve the Board s use of the bargaining order in less ex traordinary cases marked by less pervasive practices which nonetheless still have the tendency to under mine majority strength and impede the election processes The Board s authority to issue such an order on a lesser showing of employer misconduct is appropriate we should re emphasize, where there is also a showing that at one point the union had a majority, in such a case of course effectuating as certainable employee free choice becomes as impor tant a goal as deterring employer misbehavior In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employers unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair elec tion (or a fair rerun) by the use of traditional reme dies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue (see n 32, supra) This paragraph has come to be known as the Gissel second category or category two (e g , Bridgeway Oldsmobile 281 NLRB 1246 (1986) In the underlying case, the Board expressed its opinion that Respondent's unfair labor practices fall into at least the second catego ry " 285 NLRB at 6 The parenthetical reference by the Court to its footnote 32 was evidently intended to stress the understanding there expressed that such determina Lions are normally to be the exclusive province of the Board, the footnote reads IMPACT INDUSTRIES 799 The employers argue that the Fourth Circuit cor rectly observed that, in the great majority of cases, a cease and desist order with the posting of appro priate notices will eliminate any undue influences upon employees voting in the security of anonymi ty NLRB v Logan Packing Co, 386 F 2d at 570 It is for the Board and not the courts, however, to make that determination, based on its expert esti mate as to the effects on the election process of unfair labor practices of varying intensity In fash ioning its remedies under the broad provisions of § 10(c)) of the Act (29 US C § 160(c)), the Board draws on a fund of knowledge and expertise all its own and its choice of remedy must therefore be given special respect by reviewing courts See Fi breboard Paper Products Corp v NL R B, 379 U S 203 (1964) [I]t is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency Consolo v FMC, 383 U S 607 621 (1966) The third category, the Court ruled, consists of Minor or less extensive unfair labor practices, which, because of their minimal impact on the elec tion machinery, will not sustain a bargaining order There is, the Board says, no per ye rule that the commission of any unfair practice will automatically result in a § 8(a)(5) violation and the issuance of an order to bargain [Id at 615 ] IV THE BOARD S PRECEDENTS AND THE COURT OF APPEALS DECISION It may be worth noting that the refusal by the adminis trative law judge and the Board during the pendency of the case to permit Respondent to introduce evidence of employee turnover was consistent with the Board s well entrenched rule that turnover is not to be deemed rele vant in a Gissel case, not only because it may entice errant employers into drawing out a proceeding in order to take advantage of a contrary rule, but presumably also because of the Board s assumption that new employees support a union in the same proportion as did former em ployees Highland Plastics 256 NLRB 146, 147 (1981) Martin City Ready Mix 264 NLRB 450 452 (1982) Alex ander Linn Hospital Assn, 288 NLRB 103 (1988) 4 Although several court cases have rejected the Board s view e g, NLRB v J Coty Messenger Service, 763 F 2d 92 100-101 (2d Cir 1985) some courts of appeals have agreed with the Board that turnover is irrelevant in con sidering a Gissel remedy E g, NLRB v L B Foster Co, 418 F 2d 1, 5 (9th Cir 1962), G P D Inc v NLRB, 430 F 2d 963, 964 (6th Cir 1970) The Seventh Circuit has held in at least five Gissel type cases that a bargaining order may be enforced despite substantial changes in the situation occurring after the election " NLRB v Big * There is to my knowledge no statistical basis for this latter assump tion It appears to be a policy choice the Board has made over the years to encourage stability in labor management rela ionships a choice adopt ed with implicit recognition of the fact that if employees become dissatis fled with union representation 30 percent of them can sign cards which will require the holding of a decertification election Ben Shoe Store 440 F 2d 347 353 (1971) (If any party should be penalized for the delay, it should be the em ployer, since his misconduct occasioned the proceed ing ), NLRB v Drives Inc, 440 F 2d 354, 366-367 (1971), New Alaska Development Corp v NLRB, 441 F 2d 491, 493 (1971) NLRB v Henry Colder Co, 447 F 2d 629, 630 (1971) But see NLRB v Western Tempo rary Services, 821 F 2d 1258, 1270 (1987), which, while drawing a distinction between turnover in card cases and election cases, does not refer to the earlier body of law although it was adhered to by the Seventh Circuit at least as late as Justak Bros & Co v NLRB, 664 F 2d 1074, 1082 (1981), a case which was cited in both West ern Temporary Services, supra at 1267, and in the instant case (847 F 2d at 382) The turnover contention was seemingly rejected forty four years ago in Franks Bros Co v NLRB supra, 321 U S 702, in which the union had secured 45 card desig nations in a unit of 80 employees demanded and was re fused recognition, filed an election petition, and, after the employer had committed serious unfair labor practices, withdrew the petition and filed charges The Board re fused to attach significance to the fact that prior to issu ance of the complaint, 13 cardsigners had been replaced by new employees in the normal course of business, thus leaving the union with less than a majority of card signers The Supreme Court found reasonable the Board's decision to order the employer to bargain with the union rather than order elections upon every claim that a shift in union membership had occurred during proceedings occasioned by an employers wrongful refus al to bargain Id at 705 Although the employer in Franks Bros had refused to bargain with the union and an election had never been held the Court fit the case into the rubric of "a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed Id at 705 Turnover is an unpredictable-but omnipresent-fea ture of any case in which the Gissel issue arises In the four cases consolidated in Gissel all the unionization of forts and unfair labor practices occurred somewhere be tween 3 1/2 and 5 years preceding the Court s decision and there surely was healthy turnover during that period in at least some of the cases The Court however, did not address any such question specifically but seemed to have done so broadly (as quoted supra, citing (Franks Bros and Katz) My own long experience in this field tells me that it is not at all uncommon for a work force to change identity by one half or better within 2 or 3 years, the period of time which with luck, a Gissel case can go from union campaign to court enforcement Routine adoption of a rule requiring cognizance of the happenstance of turnov er as a potentially controlling factor in determining via bility of a bargaining order could require repeated hear ings the basic unfair labor practice proceeding the hear ing on the motion filed with the administrative law judge to reopen the record based on turnover after the unfair labor practice hearing, the hearing on the motion filed with the Board after issuance of the administrative law 800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD judges decision for the purpose of demonstrating adds tional turnover, the motions to reopen filed after the Board s decision and before the court s decision, etc The circuit court in the present case, however, clearly adopts the position that turnover, together with the other circumstances present in this case should be considered as bearing on the propriety of the bargaining order Indeed, some of the courts language may be said to thrust sharply in the direction of excising the bargaining order remedy, should the Respondent make out the facts which its motions have alleged The court states (at 383 emphasis added) Thus, the Board, in issuing the bargaining order, did not consider that virtually all the employees, present at the time Impact engaged in the illegal ac tivities, were gone As Impact correctly points out, any taint caused by its past activities would have been substantially dispelled by such a turnover In ad dition, Impact attempted unsuccessfully, to present evidence that it is no longer under the same man agement as it was at the time of the first election The original co owners of Impact in charge at the time of the first election, have died Impact attempt ed to present evidence to the Board that it is pres ently administered by trustees who are unrelated to the original owners The only individual related to an original owner and still working at Impact is not involved in Impact s management For this reason as well, Impact pointed out that it did not appear that the outcome of a second election was preor darned and that a bargaining order was necessary Finally over seven years passed between the time of the first election and the final decision of the Board This passage of time, coupled with the change in circumstances at the plant would seem ingly present a strong case in support of Impact s argument that a second representation election should be conducted to permit the new work force at Impact to determine whether it wants to bargain with the UAW If a fair and impartial election can be conducted, a likely event in light of the high turnover in both the work force and management a bargaining order is unnecessary It does not appear, however, that the court was in structing the Board to delete the recognition requirement should the facts prove out as Respondent had alleged [S]eemingly present a strong case does not mean con clusively establish a strong case While holding that [t]o grant a bargaining order in any instance other than in the last resort (when other traditional remedies are available) constitutes an abuse of the Board s discretion the Court nonetheless went on to say (ibid ) At a minimum, the Board should have considered all the relevant evidence before determining that a bargaining order was warranted This it failed to do and for that reason we must remand V DISCUSSION Having considered the new evidence together with the old, I believe that a bargaining order remedy is appropri ate here The misconduct previously found by the Board and of firmed by the Seventh Circuit was characterized by the Board (whose judgment in these matters, the Supreme Court said in Gissel, must be given special respect by reviewing courts 395 U S at 612 fn 32) as at least falling in the second Gissel category In my view the Respondents behavior-particularly the discharges and the instigation after the election of an INS investigation of its Mexican employees, a prime source of union sup port, by an employer who had been hiring Mexican na tives for 9 years thus endangering not only their imme diate livelihood, but also perhaps their very opportunity to again be gainfully employed-approached I think the outrageous and pervasive first category standard Although the Seventh Circuit opined that any taint caused by [Respondent s] past activities would have been dispelled' by the substantial turnover the court was not of course, aware that principal union adherent Irene Ruiz was, only by virtue of the court s affirmance of the vio lations being reinstated to her job just slightly more than 8 years after her discriminatory separation The message conveyed by the court forced return of Irene Ruiz is a dramatic and telling one to Respondents employees The fact that about 90 percent of the employees were not em ployed at the time of the 1980 events does not seem to be nearly as significant, with respect to the capability of traditional remedies to produce a fair second election, as does the fact that 31 employees who were at the plant in 1980 are still there, are being inevitably reminded by the return of Irene Ruiz (if reminder was necessary) of the events of 1980 and of the fact that 8 years had to pass before she was able to return and are very likely ac quainting new employees with the details of the fate of Ruiz of that of her fellow partisan Pam Fruit (who has not returned), and of the meat axe wielded against 11 members of the Mexican (and union supporting) compo nent of the work force in 1980 The stirring of memories provoked by a new election and even by the posting of the WE WILL NOT notices cannot help but disturb and frighten employees in this case the extraordinary delay works against the erasure of taint rather than in its favor In the ordinary case, the customary Board notices posted reasonably soon after the occurrence of the viola tions may operate to allay employees fears about sup porting a union in a second election But the employee who sees that 8 years have passed since the Respondent committed enough violations to fill 2 1/2 pages of notice posters and has only now been brought to book, who sees Irene Ruiz wait for 8 years to recapture her job and reads that others are perhaps finally entitled to theirs, is not likely to be converted instanter into a union adher ent There are two separate employee reactions to be con sidered here One is whether the 1980 unfair labor prac tices may affect votes to be cast in (perhaps) 1989 This is the kind of speculation in which the Board has in IMPACT INDUSTRIES 801 dulged for more than 50 years in determining whether improper conduct affected the results of an election so as to warrant setting it aside My personal postulate is that the normal employee, hearing of and reading about the nature of Respondents reaction to the union campaign in 1980 particularly the conduct in which it engaged even after the election which the Union lost is apt to think that voting in favor of the Union would be at least as risky a business for the employees if the Union should win A second, and perhaps equally important factor re lates to employee willingness to help organize support for the Union in an election an activity of crucial impor tance to the Unions success at the ballot box Seeing Irene Ruiz return from exile after 8 years, seeing posted on bulletin boards the names of people who did not return or may do so even later, remembering the old sto ries again or hearing or reading about them for the first time, how many of the 25 or more veteran unit employ ees or the new employees who might otherwise have done so will be agreeable to pull a laboring oar on the Union s behalf Perhaps some, not nearly as many, I would venture to say, as would have if Respondent had not violated the law in 1980 Thus, it is difficult to conclude that the taint ever dis appeared, and it likely has come roaring back in living color and Dolby sound with the reappearance of Irene Ruiz, and the court s decision and the posting of the no tices, and the hubbub which, it may fairly be assumed, surrounds these events But, Respondent argues, the changes in ownership and supervision would leave the senior employees and the new ones who learn from them the history of 1980, with a different view of man agement and its proclivities There is, of course no way to know for certain the answer to that assertion The new president Keith Berk bout, seemed to be a decent (and, in his words, laid back ) man, but, as earlier noted, his testimony did not reiterate the sort of ringing affirmation found in his affi davit regarding the effort he would make to assure a fair second election The law firm which guided Respondent through the first campaign and the unfair labor practice hearing still represents it Carl Becker the `dominant force' in 1980 is gone but his son Keith still works at the plant and has recently been promoted to the post of secondaries, or machining department, manager As such Keith reports directly to the plant manager, and has the authority to evaluate, discipline and discharge employees Keith Becker initiated a confrontation in the parking lot with handbilling employee Pam Fruit (later unlawfully terminated) shortly before the 1980 election, when Becker asked Fruit to leave the premises and she asserted her rights, he `stormed off really upset ' Judge Bernard found this conduct to be part of a larger pattern of giving the impression of surveillance in viola tion of Section 8(a)(1) (285 NLRB 5 20 )5 Also still active at the plant is Larry Brock In 1980, he was second shift foreman in the diecasting depart ment, he is now general foreman of that department, having authority over 60-70 employees 6 Judge Bernard concluded that in early July, two months after the elec tion, Brock threatened an employee with discharge if he talked to employees about the Union," thereby violating Section 8(a)(1) (and also found that Brock s testimony was beyond belief) Id at 22 Brock was not dis charged after Judge Bernard s decision issued in March 1982, either for his misconduct or for lying about that misconduct (nor, indeed was any other supervisor who was found by Judge Bernard to have participated in unfair practices) Instead, according to an attachment to Berkhout s affidavit, Brock was fired on July 15, 1982, for performance problems, and was rehired in August 1986 He now occupies a prominent position in the plant There is nothing in evidence to demonstrate that Re spondent has communicated to employees, or intends to so communicate, a commitment to mending its ways in the event of a second election The record is silent as to the extent of employee knowledge with respect to the present ownership status In the absence of any evidence, it is reasonable to believe that the employees assume that Carl Becker s ownership interest was bequeathed to heirs who share his values, and that the basic attitude of Re spondent toward unionism remains the same as in 1980 Although an effort is being made to sell the plant, it seems reasonable to assume (1) that a nonunionized oper ation will realize a greater sales puce than one which is organized, and (2) for that reason, Keith Becker as an heir to the estate, has an interest in keeping the employ ees unrepresented As set out above in Gissel the Supreme Court held, If the Board finds that the possibility of erasing the of fects of past 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 ex pressed through cards would, on balance be better pro tected by a bargaining order, then such an order should issue The preceding discussion suggests that one of the so called traditional remedies the posting of notices may sometimes be counterproductive, by refreshing memories for old employees and imparting information to new ones In the present circumstances that is a possi ble result of the posting of notices in this aged case, al though the likelihood is that the 1980 employees still working at the plant and the returning Irene Ruiz, will be the primary source of the data But the Fifth Circuit has gone further it observed in Bandag Inc v NLRB, 583 F 2d 765, 772 (5th Cir 1978), Practices may live on in the lore of the shop and continue to repress employee sentiment long after most, or even all original partici pants have departed The Board is not compelled to infer that past practices have attenuated, especially practices 5 Although Respondent told the court (in the words of the latter) The only individual related to an original owner and still working at Impact is not involved in Impact s management (which was apparently true at the time of the appeal) Respondent changed Keith Becker s Status as indicated above a month or two poor to the instant hearing The change was evidently made with indifference to the fact that the court had attached some significance to Keith Becker s noninvolvement in management 6 Respondent s brief and R Exh 4 shows that Brock was also the gen eral foreman in 1980 Judge Bernard found however that in 1980 Brock was only the second shift foreman and President Berkhout confirmed that fact at the present hearing 802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD striking directly at the heart of the security of the em ployees It would seem that in the instant case, unlike the run of the mill Gissel proceeding, the effects of past prac tices are more likely revived than "erased ' by use of the Board s traditional remedies Gissel, supra The Court further decreed in Gissel that the Board is to make its de termination based on its expert estimate as to the effects on the election process of unfair labor practices of vary mg intensity 395 U S at 612 fn 32 The discharge of 13 employees, constituting 11 percent of the work force in 1980, certainly can be considered to be unfair labor prac tices of the most shocking intensity, and the shock value occasioned by the retelling of their story which would undoubtedly accompany a new election would not, in my view, be dulled by the fact that 8 or 9 years have elapsed or that Carl Becker is gone The element of "delay," as such, does not appear to be an independently meaningful factor It seems improbable that, for those persons still employed since 1980, there will be any serious dimming of memory regarding the unfair labor practices which were truly significant-and, as described, all of Respondent's previous delicts will be paraded before the employees, old and new, on the 2 1/2 pages of posted notices The delay naturally contributed to the factor of turnover , but it played no separable role The court of appeals has directed the Board to assess the effect of employee turnover, management changes, and delay on the propriety of a bargaining order in this case, and I have attempted to do so above For the rea sons there given, it is my opinion that the possibility of ensuring a fair election by the use of trade tional remedies is slight, 395 U S at 614, and that the bargaining order entered in the Board 's original De cision and Order is an appropriate remedy [Recommended Orded omitted from publication ]