*1 Sawyer. Y.N. Ct. No. 82-603. York New proceed pauperis respondent leave Motion informa granted. denied. Certiorari Sup. Pennsylvania et al. v. Lovette
No. 82-918. proceed respondent for leave Pa. Motion Ct. forma granted. denied. pauperis Certiorari 82-455. v. National Labor Cuneo, No. Inc. John A. D. C. Cir. Certiorari et al. Board Relations denied. whom Powell Rehnquist, joins, with Justice
Justice dissenting. affirming the Labor Relations Board’s decision
In National Appeals for District of Columbia in this (1) bargaining inter order to the em- held, alia, that Circuit (2) remedy; appropriate ployer was an applied retroactively from be the date the could (3) recognition of Union; first denied because of during began employer’s as an eco- strike, actions what nomic strike was converted into an unfair labor justifying striking employ- ab initio, reinstatement of irrespective replace- ees whether the had hired Sprinkler ments for the Local strikers. Road Fitters Union 669 No. D. C. 681 F. 2d (1982). my opinion, holdings In all three of these seri- raise important questions frequency ous with be- recur Appeals, fore the NLRB. Because the NLRB and Court resolving questions, these have charted new courses previously mapped only by areas I Court, out grant certiorari to review these determinations. Chattanooga,
Petitioner, located Tenn., manufactures protection sprinkler systems. and sells fire On representatives Sprinkler 15, 1977, оf the Fitters Local Road presented Company president, Bob Union No. signed by Splawn, authorization cards Com- *2 shop employees. Splawn pany’s refused to 14fabrication rec- employees ognize the Union. On went November 14, continued until when 7 of strike; on offers to return to the strikers made unconditional work. Company committed The NLRB determined sev- practices throughout period this eral unfair labor violation 8(a)(5) 8(a)(1), 8(a)(3), §§ and National Labor Rela- §§158(a)(1), 140, amended, Stat. Act, tions (3), findings below, contested these and While fact separate days here. on are not at issue two bеfore the interrogated Company employee, a strike, officials senior seeking employ- Hall, to ascertain the identities of Gerald signed point cards; ees who Union authorization at one Hall discharge cooperate, if was threatened with he did but Company soon thereafter officialsdisclaimed a desire to dis- charge Company “impression Hall. Second, crеated the by prior of surveillance” actions: two to the a Com- strike, pany supervisor signed was directed to find out who had separate days early cards; authorization and on two Compаny photographs picketing strike, officials took Third, strikers. after the strike was terminated, Com- pany unnecessarily delayed reinstating striking employers positions. striking to available Fourth, when the first two February Splawn were reinstated told job. them not to talk about the Union on the Feb- Fifth, ruary providing promulgated 1978 the a new rule employee discharged that would be if late work three discriminatorily apрlied against times; the new rule was reinstated strikers. Bargaining Packing
The Order. In NLRB Co., v. Gissel (1969), point 395 U. if Court held that “at one majority” engaged the union had a has and the practices strength majority “to undermine impеde processes,” the election then the NLRB can consider requires the an order “bargaining issuing order.” Such a forgoing normal union, negotiate with its must demonstrate procedures in which the election that this cautioned, however, majority The Court status. sparingly, in situations where the remedy used to be was past erasing possibility the effects of NLRB “finds (or rerun) ensuring a fair election fair a present, slight though by remedies, traditional the use of through expressed employee cards once sentiment and that protected better balance, be would, emphasized that there The Court at 614-615. ordеr.” practices, which, because of “less extensive are machinery, impact not sus- election will on the their minimal *3 bargaining at 615. order.” tain a principles application Appeals’ is of these de- of The Court respects. court determined the two batable Company’s practices focus- seriousness of practice ing type than the extent committed, rather on thе of Appeals practices said occurred. The Court of to which the [b]oard “[c]ourt often have viewed unfair labor that cases interrogation, practices to the ones this similar сase— discriminatory applica- discharge, surveillance, threatened supports of the issuance tion of work rules—as conduct bargaining App. 295, 681 F. a order.” 220 U. S. D. at C., any practice “type” 2d, at 23. of would Most contemplated by to if com- rise the level of misconduct Gissel frequency; contemplated mitted with sufficient but Gissel significant given practices that the extent of the should be weight determining of an unfair labor seriousness practice. require a
Second, the court ruled that “‘Gissel does not finding remedy only that no bar other could that the suffice, gaining protects employees’ expressed union better preference.’” 24 220 F. 2d, D. 681 C., (quoting Amalgamated Clothing NLRB, Workers (1975), U. D. F. de- 20, 24, 2d cert. Jimmy-Richard U. Co. S. 907 nom. nied sub (1976)). empha- spoke plainly in Gissel, however, The Court finding employees’ sizing to that the that addition protected, preference bargaining before be better a possibility that “the issued it must be determined of order is past ensuring erasing and of a fair the effects rerun) (or by the use of traditional remedies, a fair election present, slight.” though at 614. S., 395 U. is bargaining order was The so-called Gissel never intended routinely. remedy designed It a to be used is cases traditional remedies are insufficiеnt. where Since this bargaining order been case the has sanctioned without a find- ing special required by circumstances exist, Gissel newly adopted approach we should determine whether this proper a one. Retroactivity Bargaining Order. The NLRB and Appeals only determined Court facts supported bargaining case issuance of a order, but
also that the order should be retroаctive from the first time recognize refused Union. Prior the NLRB did not issue retroactive orders. See Trading Port, Inc., 219 R. N. L. B. 298 In its deci- Appeals purport accept below, sion did not policy only. new which usеs Rather, retroactive orders approve court said it will “the issuance of retroactive bar- *4 gaining sup- majority where, orders as here, the had port bargaining within the unit, the to bar- refused gain employer engaged with the union, and the in serious pervasive justify unfair labor to a bar- sufficient gaining order under C., 297, Gissel.” 220 U. D. at 681 F. 2d, at 25. principle,
While stated as a limited the however, under by Appeals standard set forth the of the NLRB will be liberty bargaining at to all make orders retroactive. Before any bargaining order can issue, all re- three so-called quirements retroactivity present for need to bе under Gissel. bargaining must “retroactive” The hurdle which higher must be the hurdle which than no clear is therefore bargaining by any order. cleared Employees. Striking It undis- Reinstatement of prac- Company an putеd not commit did recognize refusing 1977. by the Union to tice require show its Company the Union to ma- free to The was bargaining Lin- unit an election. See jority in the status (1974). In S. 301 U. Division Lumber den Appeals NLRB’s determina- affirmed the the Court fact, began September 21, it 1977, strike when the tion that practices; employees response was not gain recogni- any “striking reason other than to for not were bargaining represеntative.” their tion F. at 2d, Therefore, 20. C.,D. engaged employees protests, inception were an their practices” an “unfair labor strike. and not “economicstrike” During strike,” held that an “ecоnomic this Court has right replacements striking hire has the for discharge employees those hired to fill and “he is bound to places upon re- strikers, the election of the latter to employment, рlaces for them.” sume their order to create MacKay Telegraph Co., NLRB v. Radio & 304 U. S. (1938). Ap- 345-346 in this Nevertheless, case the Court of peals requiring affirmed the NLRB’s order they rehire the strikers as to return tо date offered irrespective any replacements filling work, of whether were positions. the strikers’ Appeals
To reach this result, the NLRB and Court of Drug Package relied on B. In Co., N. L. R. the NLRB ruled that “when recognition granted they which should have been at the time contempo- employer engaged went on strike and where the widespread illegal designed raneous conduct to frustrate the statutory particular, striking scheme, and *5 practice are unfair labor strikers.”
(footnote omitted). applied Drug As Pack- contrary age patently light rule seems to our cases. supra, legal Division, is Linden Lumber there no reason why recognition granted of the Union “should have been employees] [the the time went strike.” Second, convert- ing practices” strike” into an “unfair labor “economic strike initio because of unfair аb labor committed subsequent to the initiation diminishes the replacement rights rights workers, as the well of em- ployers, MacKay which this Court established Radio, supra. present important questions
All three of these issues disputes. frequency grant recur with I some would Appeals’ certiorari review the Court of decision on each issue.
No. 82-623. Treasure Isle, Inc. v. United States. A. 11th Cir. Certiorari denied. Justice White would grant certiorari. Metropolitan County
No. 82-702. Board of Educa tion of Nashville County, Tennessee, Davidson Kelley v. A.C. 6th Cir. denied. Certiorari et al. et al. part took no consideration or deci- Justice Marshall petition. sion of this Attorney
No. 82-897. Doe et Kelly, al. v. General al. Ct. Mich. denied. Certiorari et Michigan, grant Justice Brennan certiorari. Sup.
No. 82-5632. Baker Ct. Mo. Cer- Missouri. tiorari denied.
Justice Brennan, dissenting.
Adhering my penalty cir- view all death punishment prohibited cumstances cruel and unusual Eighth Georgia, Gregg Amendments, Fourteenth