finding no adequate justification for Gissel order because “the Board did not adequately consider changes in management and employee turnover at the Company since the time of the election”
How later courts described this case
- finding no adequate justification for Gissel order because “the Board did not adequately consider changes in management and employee turnover at the Company since the time of the election”
- refusing to enforce bargaining order where only ten percent of the employees were directly affected by the employer's unfair labor practices
- declining to enforce bargaining order where “no reasoned justification therefor appearfed] in the Board’s order”
- declining to enforce bargaining order where "no reasoned justification therefor appear[ed] in the Board's order"
Written by the judges who cited it.
The opinion
ON RESPONDENT’S PETITION FOR REHEARING
[Filed April 2, 1993]
EDWARDS, Circuit Judge,
concurring in the judgment:
On March 4, 1993, an Order amending the majority opinion was issued pursuant to Respondent’s Petition for Rehearing. That Order reads as follows:
It is ORDERED by the court that the opinion filed by the court on January 22, 1993, be amended as follows:
Page 5, line 12, strike “finding is sufficiently supported, the second may be sufficiently supported and”. Insert the following: “and second findings are sufficiently supported but”.
Page 5, line -3, after the word “whether” insert “certain of”.
Page 6, line -5, strike “We do not believe that Clyde’s profitability remark violated the Act.” Insert the following: “We leave to the Board to decide whether Clyde’s profitability remark violated the Act.”
*783 Page 6, line -2, strike “Even assuming without concluding that all of management’s statements, including the statements of Rush, Tims Sr., Pyle and Berk-ley described earlier”. Insert the following: “Notwithstanding that the statements of Rush, Pyle and Berkley and certain of Clyde’s statements”.
Page 6, strike footnote 5. Renumber subsequent footnotes.
Page 10, line -6, strike “whether the statements of Rush, Tims Sr., Pyle, Clyde and Berkley about plant closures (other than Clyde’s profitability remark) violated the Act, and, if so, why they were so pervasive as to warrant a remedial bargaining order;”. Insert the following: “whether the statements of Tims Sr. about plant closures and Clyde’s profitability remark violated the Act, and, if so, why their statements, along with those of Rush, Pyle and Berkley, as well as Clyde’s other statements, were so pervasive as to warrant a remedial bargaining order;”.
Page 10, strike footnote 7. Insert as new footnote 6 the following: “Our remand does not disturb the portions of the Board’s order finding violations of section 8(a)(1) insofar as they relate to statements by Rush, Pyle, Berkley and Clyde (other than Clyde’s profitability remark) nor does it disturb the Board’s order that Thomas Deist be made whole for “earnings lost.”
I continue to concur only in the judgment of the court remanding this case for reconsideration. I have revised my previous concurrence in light of the two objections raised by the Board in its Petition for Rehearing and Suggestion for Rehearing En Banc. One of the Board’s objections has merit; the other does not.
The Board has correctly pointed out that its findings of section 8(a)(1) violations with respect to supervisors Rush, Pyle, Berkley, and some of the statements of supervisor Clyde, were not at issue on appeal. The majority opinion has been modified accordingly. The Board is in error, however, in claiming that the panel majority’s original opinion ordered the Board, on remand, “to inquire how many of the current employees, who also were employed at the time of the election, signed union-authorization cards.” Petition for Rehearing at 5. This claim reflects a misreading of the majority opinion, which simply observes that “[w]e do not know ... how many of the 50 employees signed the cards authorizing an election.” Nothing in the opinion suggests that the Board is required to make such a finding on remand, or that such a finding is dispositive of the bargaining order issue. Thus, our original holding is largely unchanged, except that we no longer remand the statements of supervisors Rush, Pyle, Berkley, and the uncontested statements of supervisor Clyde, for reconsideration by the Board.
The reason for the court’s remand is that the bargaining order remedy cannot stand on the present record, because the Board failed to make certain of the specific findings required by Avecor, Inc. v. NLRB, 931 F.2d 924, 934 (D.C.Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 912 , 116 L.Ed.2d 812 (1992). In particular, the Board has failed to explain why “ ‘the possibility of erasing the effects of past practices and of ensuring a fair rerun election by the use of traditional remedies is slight and that employee sentiment once expressed in favor of the Union would be better protected by a bargaining order’.” Id. (quoting St. Francis Fed’n of Nurses & Health Professionals v. NLRB, 729 F.2d 844 , 854-55 (D.C.Cir.1984)). On remand, the Board must specifically address three issues: (1) whether Chairman Riggs’ statements violated the Act, and, if so, whether these violations support a remedial bargaining order; (2) whether supervisor Tims, Sr.’s statement about plant closures violated the Act; whether supervisor Clyde’s remark about plant profitability violated the act; and, if so, why these statements, along with the other illegal statements made by Rush, Pyle, Berkley and Clyde, were so pervasive as to warrant a remedial bargaining order; and (3) whether the changes in management and employee turnover that have occurred since the oc *784 currence of the violations have made a bargaining order unnecessary.