issuing a bargaining order in a Gissel I case is an abuse of discretion by the Board since this part of the Gissel decision was just dictum
How later courts described this case
- issuing a bargaining order in a Gissel I case is an abuse of discretion by the Board since this part of the Gissel decision was just dictum
- “ ‘[T]he introduction of evidence relevant to an issue already in the case .may not be used to show consent to trial of a new issue absent a clear indication that the party who introduced the evidence was attempting to raise a new issue.’ ”
- “Our national labor relations policy is designed to effectuat[e] ascertainable employee free choice and expressed majority sentiment”
- R.B. Ginsburg, J., dissenting
Written by the judges who cited it.
The opinion
GINSBURG, Circuit Judge,
dissenting as to the requirement that the Company’s president read the Board’s notice aloud to assembled employees:
I would modify the extraordinary notice remedies in one respect. The Board’s order requires that Conair’s president, Leandro Rizzuto, personally read the Board’s cease and desist notice to an assembly of employees; I would allow Rizzuto to choose between reading the notice himself or designating a responsible officer to read it on his behalf.
The Board’s order specifies that the Company’s
owner and president, Rizzuto, ... shall ... read the notice to current employees assembled for that purpose....
Conair Corp., 261 NLRB 1189 , 1285 (1982) (ALJ Opinion).
In Teamsters Local 115 v. NLRB, 640 F.2d 392 (D.C.Cir.), cert. denied, 454 U.S. 837 , 102 S.Ct. 141 , 70 L.Ed.2d 118 (1981), the Board similarly required that “the [Company] president, Harold Anderson, personally read a copy of the notice to an assembly of the employees.” 640 F.2d at 401. Our opinion in that case summarized the history of Board public reading orders (they originated when the illiteracy of employees was a large concern), id. at 401-03, and noted the grave reservations this court had earlier expressed regarding such orders in International Union of Electrical, Radio & Machine Workers v. NLRB (Scott’s, Inc.), 383 F.2d 230, 232-34 (D.C.Cir.1967), cert. denied, 390 U.S. 904 , 88 S.Ct. 818 , 19 L.Ed.2d 871 (1968). See 640 F.2d at 402. We enforced the public reading requirement in Teamsters Local 115 with this modification: we directed the Board to specify as the reader, in lieu of the president, simply “a responsible officer of [the Company].” Id. at 403-04.
Teamsters Local 115 is distinguishable from this case. We observed there that “[o]f all the unfair labor practices found by the Board,” the president had personally performed “only one.” Id. at 403. Here, the president’s personal involvement was far more conspicuous. His voice behind the Board’s order might most authoritatively indicate to employees that Conair will comply with the directive. Nonetheless, a reading order “directed at a specified individual” is a “startling innovation.” Id. Such an order would occasion no surprise in a system in which those who offend against state regulation must confess and repent as a means of self-correction, or to educate others. But it is foreign to our system to force named individuals to speak prescribed words to attain rehabilitation or to enlighten an assembled audience. The Board, I believe, has not thoughtfully considered this point.
A forced, public “confession of sins,” even by an owner-president who has acted outrageously, is a humiliation this court once termed “incompatible with the democratic principles of the dignity of man.” International Union of Electrical, Radio & Machine Workers, 383 F.2d at 234 . It has a punitive, vindictive quality, see Teamsters Local 115, 640 F.2d at 401, and is the kind of personal performance command equity decrees have avoided. See Restatement (Second) of Contracts § 367 (1979); Lumley v. Gye, 2 El. & Bl. 216, 118 Eng.Rep. 749 (Q.B.1853); cf. Lumley v. Wagner, 1 DeG., M. & G. 604, 42 Eng.Rep. 687 (Ch.1852) (acknowledging lack of authority to grant specific performance of defendant’s concert singing obligations, court issued injunction preventing defendant from breaching covenant not to sing elsewhere). Moreover, as Board Chairman Van de Water noted, Conair, 261 NLRB at 1195 n. 28, a reading of the notice by the president may be less effective than a reading by another responsible officer. The former, humiliated and degraded by the personal specific performance order, may dem *1402 onstrate “by inflections and facial expressions, his disagreement with the terms of the notice.” Id. The latter, assigned the task but lacking the same personal involvement, may ■ perform it with less distaste, more detachment, and thus with greater credibility. I would not single out the president here, or any other named individual, hand him lines, and make him sing.