enforcing bargaining order based on two threats of job loss, one threat of plant closure, and one unlawful interrogation
How later courts described this case
- enforcing bargaining order based on two threats of job loss, one threat of plant closure, and one unlawful interrogation
Written by the judges who cited it.
The opinion
ELY, Circuit Judge
(concurring):
I concur in my Brother Duniway’s opinion. At the same time, I am com *6 pelled to say that, were it not for the compulsion of Gissel Packing Co. 1 could not, in the circumstances of this particular ease, join in upholding that portion of the Board's order which requires the respondent presently to bargain with the Teamsters Union. As Judge Duniway points out, the employer is blameless for the rapid turnover in its personnel, and “it is possible that, as of now, there is not a single remaining employee who was concerned with the original election.” In the light of these considerations, I would hope that, even though we are obliged to issue an Order of full enforcement, the Board will yet consider itself empowered to determine that the now more desirable course is the conducting of a fair election under the protection of the cease and desist order. Just as it is properly interested in preventing coercive activities which may obstruct the legitimate aims of employees, the Board surely will not desire to thrust upon employees a representative whose status as their bargaining agent is open to serious question.
Professor Bok wrote, approximately five years ago, “But the bargaining order is undoubtedly strong medicine and should, for this reason, be employed with considerable restraint.” Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 137 (1964). Not long before the issuance of the opinion in Gissel, the Second Circuit had held that a bargaining order should not be enforced unless an employer has exhibited “flagrantly hostile” conduct. NLRB v. Better Val-U Stores of Mansfield, Inc., 401 F.2d 491, 494, 495 (2d Cir. 1968). “The developments in this case demonstrate the vice of imposing a bargaining order long after the occurrence of unfair labor practices that are not refusals to bargain.” Id. at 495 . See also NLRB v. Flomatic Corp., 347 F.2d 74 (2d Cir. 1965). And the Second Circuit has, very recently and despite Gissel, again refused to enforce such an order. NLRB v. Patent Trader, Inc., 415 F.2d 190 (2d Cir. July 29,1969).