National Labor Relations Board v. Koenig Iron Works, Inc. And Roman Iron Works, Inc.

OAKES, Circuit Judge

(dissenting):

I dissent.

In my view the decision gives employers an incentive to stonewall in bargaining sessions and rewards rather than punishes them for the type of continued violations of the Act that undermine the entire collective bargaining process.

The majority’s reference to a twelve-year interval between the last determination of Local 455’s majority status and the present bargaining orders is misleading. Less than six years ago, in 1982, our court determined that Koenig had established neither the actual loss of majority status of Local 455 nor a rational, good faith doubt as to that status. NLRB v. Koenig Iron Works, Inc., 681 F.2d 130 , 138-39 (2d Cir.1982) (Koenig I). In a lengthy opinion by Judge Friendly, enforcing bargaining orders, the court noted the Board’s reliance on the rationale of Glomac Plastics, Inc., 241 N.L.R.B. 348 , enforced, 600 F.2d 3 (2d Cir.1979), that a bargaining order and not an election was “ ‘the only effective remedy’ ” for the refusal to bargain. 681 F.2d at 144 (quoting Glomac Plastics, 241 N.L.R.B. at 348). The court also found it neither arbitrary nor capricious for the Board to have concluded that, despite the passage of six years from the commission of the unfair labor practice there, “the need to deter employer misconduct mandated the issuance of bargaining orders.” 681 F.2d at 145. That same need mandates the same result today, and the passage of time does not require otherwise.

Here only three to four years have actually elapsed since the employers several times committed one of the most pernicious unfair labor practices, namely, unilateral wage increases. See, e.g., NLRB v. Katz, 369 U.S. 736, 743 , 82 S.Ct. 1107, 1111 , 8 L.Ed.2d 230 (1962) (employer’s unilateral changes in conditions of employment under negotiation circumvents duty to negotiate and frustrates objectives of Act); NLRB v. Consolidated Rendering Co., 386 F.2d 699, 704 (2d Cir.1967) (unilateral changes are so disruptive of collective bargaining relationship as to be per se unfair labor practices); see also Carpenter Sprinkler Corp. v. NLRB, 605 F.2d 60, 64-65 (2d Cir.1979) (clear impasse must exist to warrant unilateral changes). 1 Moreover, only three to four years have elapsed since the employers bargained with Local 455, “[h]aving voluntarily determined that the Union[] *5 had a majority status.” NLRB v. Cayuga Crushed Stone, Inc., 474 F.2d 1380, 1384 (2d Cir.1973). 2 Once Koenig and Roman recognized Local 455 as the representative of their employees, they were not free shortly thereafter to withdraw recognition from the union unilaterally. See id. At the very least, a rebuttable presumption of continuing majority support existed as to the incumbent union. The majority specifies no evidence which would cast doubt upon the conclusions of the Board that the employers violated the Act by withdrawing recognition from the Union in March of 1985 3 and that Koenig further violated the Act by refusing the Union’s request for inform ation.

For the first time this court permits employers whose extensive and persistent misconduct already has resulted in protracted litigation culminating in enforcement of Board orders to obtain by continuation of the misconduct a delay that thereby absolves them from their statutory duties. This flies in the face of our decisions in, e.g., NLRB v. Star Color Plate Service, Division of Einhorn Enterprises, Inc., 843 F.2d 1507 (2d Cir.1988), petition for cert. filed, 57 U.S.L.W. 3021 (U.S. July 19, 1988), and NLRB v. Patent Trader, Inc., 426 F.2d 791 (2d Cir.1970) (en banc). It is a clear signal to any employer that it is all right “to disregard its duty to bargain in the hope that over a period of time a union will lose its majority status,” id. at 792 ; see also Glomac Plastics, 241 N.L.R.B. at 348, quoted in Koenig I, 681 F.2d at 144 (identical language), and that, if done sufficiently late in the game, the granting of unilateral wage increases will be winked at by the court.

Accordingly I dissent.

. The majority cites nothing in the record to suggest that the Board’s finding of no impasse was not supported by substantial evidence.

. The AU noted in his opinion (adopted by the Board) that each company “resumed bargaining with the Union [in 1984-85] under circumstances which ... leave no doubt that it believed itself to be dealing with the authorized representative of its employees in the bargaining unit."

. Indeed, the AU specifically found that Roman had offered “no evidence to show that a change [in Local 455’s majority status] had truly occurred.” Moreover, the employers’ arguments and evidence supporting their alleged good faith doubt of the union’s majority status were presented and rejected as insufficient by this court in Koenig I. See 681 F.2d at 138, 139 & n. 11, 141 & n. 16. See also NLRB v. Windham Community Mem. Hosp., 577 F.2d 805 , 813-14 (2d Cir.1978).