National Labor Relations Board v. Patent Trader, Inc.

FEINBERG, Circuit Judge

(Concurring and dissenting):

I concur in the holding that the Board properly found violations of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act. I respectfully dissent from the failure to enforce that portion of the Board order which requires the Company to bargain.

After carefully documenting the failure of the Company to bargain in good faith with the Union, the majority opinion nevertheless refuses to enforce the Board’s order designed to remedy that egregious violation of the National Labor Relations Act. The decision undermines the policy of the Act, is not supported by authority, and indeed flies in the face of the recent Supreme Court decision in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). The lesson for any alert employer from this ruling is that if you stall long enough you may lose the battle with a union but still win the war.

In May 1965, the Union obtained authorization cards from the Company’s employees and petitioned the Board for an election. Thereafter, the employees selected the Union in a secret ballot election despite the vigorous opposition of the Company, and the Union was duly certified as the bargaining representative in July 1965. For the next year, however, the Company refused to bar*204gain in good faith with the Union, continually adopting delaying tactics while giving false assurances to the Union. It is that conduct which the Board order is designed to remedy.

The majority finds support in earlier decisions of this court for conditioning a bargaining order on an election: NLRB v. Flomatic Corp., 347 F.2d 74 (2d Cir. 1965); NLRB v. Better Val-U Stores of Mansfield, Inc., 401 F.2d 491 (2d Cir. 1968); and NLRB v. Pembeck Oil Corp., 404 F.2d 105 (2d Cir. 1968). However, none of those cases involved a union that had been duly certified after a Board conducted election. Moreover, in Flo-matic and Better Val-U Stores there was no finding by the Board of a refusal to bargain; rather, as the majority points out, the Board there sought enforcement of its bargaining orders to remedy 8(a) (1) and (3) violations. In refusing enforcement, this court called a bargaining order “strong medicine,” emphasizing employee freedom of choice and the preference in the Act for an election to determine that choice. But, however strong may be the medicine of a bargaining order in 8(a) (1) and (3) cases, both Flomatic and Better Val-U Stores make clear that it is the normal prescription for remedying a violation of 8(a) (5). It is true that Pembeck was an 8(a) (5) case, the union there having been selected by representation cards rather than by election. However, on June 23, 1969, the Supreme Court granted certiorari and summarily vacated the judgment in that case with instructions that it be remanded to the Board for further consideration under the criteria to be applied by the Board in representation card cases under the'Court’s decision in NLRB v. Gissel Packing Co., supra. See 395 U.S. 828 (1969).

It is important to emphasize what this case is not. It does not involve use of union authorization cards to justify a bargaining order; the union here was certified after an election. Cf. Wheeler-Van Label Co. v. NLRB, 408 F.2d 613 (2d Cir. 1969). It is not a case in which a union seeks to set aside an election; the union here won the election. The Board’s order to the Company to bargain issued because the Company had flouted the result of the election. The choice here is not between a bargaining order or an election in the first instance, as in the cases relied on by the majority, but between requiring two elections rather than just one. Thus, the question in this case is whether this court should set aside a bargaining order, even though there has been an election, because it now has doubts as to the employees’ present desires. While concern for employee freedom of choice is certainly appropriate, for several reasons it does not justify modifying the Board order in this case.

First, the decision actually gives an employer an incentive to disregard its duty to bargain in the hope that over time the union — because of employee turnover, internal dissension, or, more likely, lack of progress in negotiating a contract — will lose its majority status. In NLRB v. Gissel Packing Co., supra, 395 U.S. at 607-614, 89 S.Ct. 1937-1940, the Supreme Court has reminded us of the compelling reason for giving the Board authority to enter a bargaining order:

If the Board could enter only a cease- and-desist order and direct an election or a rerun, it would in effect be rewarding the employer and allowing him “to profit from [his] own wrongful refusal to bargain,” Franks Bros. Co. v. NLRB, 321 U.S. 702, 704, 64 S.Ct. 817, 88 L.Ed. 1020 (1943), while at the same time severely curtailing the employees’ right freely to determine whether they desire a representative. The employer could continue to delay or disrupt the election processes and put off indefinitely his obligation to bargain; and any election held under these circumstances would not be likely to demonstrate the employees’ true, undistorted desires. [Footnotes omitted.]

Thus, while seeming to protect employee rights in this case, the majority opinion will in the long run serve to erode them. *205It gives a glimmer of hope to an employer bent on disregarding its obligations that it can do so with impunity, thus undercutting the very heart of the Act— the guarantee to employees of the right to bargain collectively with their employer through representatives of their own choosing.

Second, if the employees have indeed changed their minds and no longer wish to be represented by their duly certified representative, they already have statutory relief. Thus, section 9(c) of the Act, 29 U.S.C. 159(c), provides that employees may petition the Board for a decertification election. Congress apparently thought that this would be sufficient protection for employees, and the Board here has concurred in that judgment. Cf. NLRB v. Gissel Packing Co., supra, 395 U.S. at 612-613 n. 33, 89 S.Ct. at 1939. If a court wants to make sure that employees are aware of that right, it might require the Board to give the employees actual notice of it. See NLRB v. Priced-Less Discount Foods, Inc., 405 F.2d 67 (6th Cir. 1968). However, in the absence of the most compelling reasons, a court should not substitute its judgment as to suitable remedy for that of the agency to which Congress has assigned that task. “[T]he Board draws on a fund of knowledge and experience all its own, and its choice of remedy must therefore be given special respect by reviewing courts.” NLRB v. Gissel Packing Co., supra, 395 U.S. at 612 n. 32, 89 S.Ct. at 1939.

Finally, under the Act it has been decided that an employer must bargain in good faith with a certified union for a period of one year. Had the Union here lost its majority status soon after the election, the Company would not have been entitled to refuse to bargain on that ground but would have had to bargain for the entire year. See Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954) (alleged loss of majority after election but before certification). The same result should be at least equally required when an employer does not bargain in good faith for a year and when that failure to bargain and other employer acts contribute to the union’s loss of majority status. Certainly this has been the law in this circuit. See NLRB v. Henry Heide, Inc., 219 F.2d 46 (2d Cir.), cert. denied, 349 U.S. 952, 75 S.Ct. 881, 99 L.Ed. 1277 (1955). Indeed, it has been suggested that the real question in this type of ease is whether a bargaining order alone is enough or whether additional remedies should be fashioned. See Note, The Need for Creative Orders Under Section 10(c) of the National Labor Relations Act, 112 U.Pa.L.Rev. 69, 83-87 (1963); cf. NLRB v. Strong, 393 U.S. 357, 89 S.Ct. 541, 21 L.Ed.2d 546 (1969).

For all of these reasons, I respectfully dissent from the refusal to grant‘the Board’s petition for an order compelling the Company to bargain with the Union.