refusing to enforce a bargaining order because of insufficient facts showing that a fair election was impossible
How later courts described this case
- refusing to enforce a bargaining order because of insufficient facts showing that a fair election was impossible
- denying enforcement after Gissel remand
- following remand to Board
Written by the judges who cited it.
The opinion
*176 HAYS, Circuit Judge
(dissenting):
In N. L. R. B. v. Gissel Packing Co., 395 U.S. 575 , 612 n. 32, 89 S.Ct. 1918, 1939 , 23 L.Ed.2d 547 (1969) the Court said:
“The employers argue that the Fourth Circuit correctly observed that, ‘in the great majority of cases, a cease and desist order with the posting of appropriate notices will eliminate any undue influences upon employees voting in the security of anonymity.’ NLRB v. S. S. Logan Packing Co., [4 Cir.,] 386 F.2d [562,] at 570. It is for the Board and not the courts, however, to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of § 10(c) of the Act ( 29 U.S.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 Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 [, 85 S.Ct. 398 , 13 L.Ed.2d 233 ] (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 , [, 86 S.Ct. 1018, 1027 , 16 L.Ed.2d 131 ] (1966).”
This court has said that the Board is invested with “almost total discretion” in determining when a bargaining order is the appropriate remedy for violations of the Act. N. L. R. B. v. International Metal Specialties, Inc., 433 F.2d 870, 872 (2d Cir. 1970), cert. denied, 402 U.S. 907 , 91 S.Ct. 1378 , 28 L.Ed.2d 647 (1972).
In warning the Courts of Appeals that it is for the Board not the courts to determine whether a bargaining order is justified, the Supreme Court could hardly have been more emphatic than it was in Gissel. Yet circuit judges continue to be so profoundly convinced of their own expertise in such matters that they do not hesitate to disregard the Supreme Court’s admonitions. Surely such matters as the effect on employees of threats to close the plant, to discharge for tardiness and to deprive them of plant privileges, are exactly the areas in which the Board rather than the judges have a special “fund of knowledge and expertise.” If ordinary common sense would not provide the answer, surely the Board would know better than the judges whether the report of an employer’s threat of plant closure is likely to spread among the employees of a tiny plant all working in close proximity to one another.
While it may have been proper for the court, having found that the employer’s interrogation of employees did not violate the Act, to remand the case to the Board to determine whether the remaining unfair labor practices were sufficient to justify a bargaining order, the court should now accept the Board’s decision on that point. I, therefore, dissent.