NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PATENT TRADER, INC., Respondent.
No. 432, Docket 32743
United States Court of Appeals Second Circuit
Decided July 29, 1969
415 F.2d 190
Wilfred Feinberg, Circuit Judge, dissented in part.
For the reasons stated, the Order of the District Court will be affirmed.
Wilfred Feinberg, Circuit Judge, dissented in part.
Hugh P. Husband, Jr., New York City, for respondent.
Before MOORE and FEINBERG, Circuit Judges and McLEAN,* District Judge.
MOORE, Circuit Judge:
The National Labor Relations Board (the Board) has petitioned this court for enforcement of its Order issued against Patent Trader, Inc. (the Company), requiring the Company to cease and desist from unfair labor practices found to have occurred in Mount Kisco, New York, where the Company is engaged in commerce.1 The trial examiner found that the Company violated
The Facts
The Company, a New York corporation with its office and place of business in Mount Kisco, New York, is engaged in the publishing, printing and distribution of a weekly (“The Advertiser“) and semi-weekly (“Patent Trader“) and other newspapers and in commercial printing. Of approximately 220 Company employees, only its 9 or 10 pressmen and reelmen are involved in this proceeding. In April, 1965 these pressmen and reelmen communicated with Louis Bramley, the vice-president of Local 366, and discussed with him the possibility of affiliating with that union, which served as the bargaining agent for printing pressmen of several establishments in Westchester County, New York. The Union obtained authorization cards from the pressmen and, on May 5, 1965, petitioned for an election. On July 12, prior to the election, the Company posted on its bulletin board a fact sheet explaining why it opposed unionization of the plant, and reviewing the benefits enjoyed by the pressmen. In a “memo to the pressroom” bearing the same date Company president Carll Tucker, in reciting what
* Of the Southern District of New York, sitting by designation.
At about this time the Company‘s production manager, Richard Pollock, called an illiterate employee, Richard Lener, to his office and explained the mechanics of voting to Lener. While being so instructed, Lener was asked how he intended to vote and was reminded that he, Pollock, had given Lener a job at the plant notwithstanding his inability to read and write.
On July 20, 1965, the Union won the election by a vote of 8 to 2. About a half-hour later, Pollock told one Gaetanello, a pressman, “Here I gave you a raise * * * and then you go do this to me.” And to Lener, Pollock said, “I took you in here because you didn‘t know how to read and write and gave you a job, a steady job, and you got to do this to me.” Shortly thereafter, Lener‘s hours were reduced from 37 1/2 to 24 hours per week (then later increased to 25 hours per week, to enable Lener to qualify for welfare and other benefits which the Company accorded to full-time employees).
The Union was certified as the collective bargaining representative for the employees on July 28. On August 3 the Union, through vice-president Louis Bramley, wrote Company president Tucker and requested a meeting to negotiate a collective bargaining agreement. On the same day Company vice-president and treasurer William Heron advised the Union by letter that he would negotiate for the Company, and agreed to observe the Union‘s earlier request “that there be no changes in working conditions, etc. of pressroom employees during bargaining.” Thereafter, between August 10, 1965 and June 29, 1966 the parties held 11 meetings—all at the Company‘s premises in Mount Kisco. On July 27, 1966, the Union filed the instant unfair labor practice charge. Union attorney John Sheehan was the chief spokesman for the Union at these meetings while Company attorney Hugh Husband and treasurer Heron shared the negotiating task for the Company. Heron testified that prior to the first meeting he met with Tucker and Husband and adopted “the strategy that would be followed in the collective bargaining negotiations,” namely, refusing to bargain on economic matters “until noneconomic matters had been resolved.”
The first meeting was held on August 10, with discussion centering around the Union‘s standard contract. At the second meeting, held on September 16, the parties discussed welfare and pension plans and disagreed on several substantive provisions of the standard contract including exclusivity of foreman authority, scope of arbitration and seniority. When the Union asked for the Company‘s response to certain economic pro-
The third meeting was held on September 30, with the Company presenting detailed counter-proposals on the noneconomic portions of the Union‘s standard contract. Upon the Union‘s complaint concerning the Company‘s omission of economic proposals, Husband replied, in Sheehan‘s words, that “he had been working so hard getting the other things together that he didn‘t have time to examine the Company‘s proposal on economic issues.” At the fourth meeting, on October 14, discussion still centered around the Company‘s non-economic counter-proposals which, for the duration of the bargaining sessions, became the negotiating text. The Union agreed to 10 Company clauses, submitted counter-proposals on 10 others and rejected 5 Company proposals. Sheehan, viewing the Union as having made “substantial concessions,” noted that the Company, at the next meeting, “should be in a position to give the Union a counter-proposal on all the open issues, including the economic issues.” But at the next (fifth) meeting, negotiations proceeded “very slowly” and the Union repeated its complaint that the Company had not as yet commented on the economics of the contract. The sixth meeting was similarly unproductive. After three postponements, the seventh meeting was held on December 29. At this meeting, termed a “conference” by the trial examiner, the Union and the Company each made concessions but remained apart on other issues. The meeting became “rather intense” upon the Union‘s request that the Company, following lunch, state its position on the open Union draft proposals, including the economic clauses. Husband insisted that such a course was “useless” because “the whole point” of the Company‘s preparation of the counter-proposals was to bargain from those and that it would be “foolish to go back” to the Union‘s standard contract. Husband, although noting that the Company would not discuss economic matters until agreement was reached on all non-economic matters agreed to review the Union‘s draft proposals after the lunch recess. When the conference re-convened, Husband went through the Union draft agreement section by section, noting those sections already agreed upon, those which the Company rejected outright and those which—since they dealt with economic matters—would not be dealt with at that time “consonant with [the Company‘s] policy to settle other non-economic matters * * * before we tackle the economics.” Sheehan reacted sharply to this position, asserting that the Company had promised to make economic proposals on “two occasions, including today,” that the Company was not dealing fairly with the Union and that “the negotiations could not go on like this.” Husband, however, reiterated his position, and an impasse was reached. Sheehan thereafter sought the assistance of the Federal Conciliation and Mediation Service to help compose the parties’ differences but such intervention was impossible because of Company opposition. At the termination of the December 29th conference, Husband withdrew as bargaining representative for the Company “because of the expense involved.” Heron, who had a “familiarity with the issues” but no prior bargaining experience, became the Company‘s sole negotiator.
With the New Year and the attempt to bring the Mediation Service into the negotiations came a month-long delay in the bargaining. During the month of January, 1966, two incidents occurred which were found by the trial examiner to constitute violations of the Act. The first was a fortuitous meeting of Kenneth White, the then Union shop steward, and production manager Pollock at a restaurant early that month. After a few drinks the conversation turned to Union matters and Pollock told White that he and another pressman were “management material” with a “fine fu-
The second incident occurred on January 31 when, at the invitation of president Tucker, four of the pressmen lunched with him at an “exclusive restaurant.” Following food and drinks, Tucker inquired about the “trouble in the pressroom.” The employees complained about long hours and low wages, to which Tucker replied that the Company was “young and growing,” that profits were plowed back into the Company and that there were “brighter days ahead.” Tucker suggested that even with a union they couldn‘t get more money because “you can‘t get blood from a stone.” With regard to the pending contract negotiations Tucker stated that “he didn‘t have to sign a contract at all” and that if there were a strike he could replace the men with a whole crew of “trained people.” He added that while he could probably tolerate Local 366, he was concerned that the ITU Local 6, led by Powers, would try to get a foothold and put the Company out of business. When confronted with the lack of progress in the negotiations and with complaints by the employees that they had “nothing to look forward to,” Tucker indicated that he “had to continue bargaining” and that, although he had prospects of future business, nothing could be done until some settlement was reached between the workers and the Union or between the Company and the Union. Tucker encouraged the revival of the “Communications Committee,” through which employee grievances had once been transmitted to the management, and further invited the employees to present grievances directly to him.
Five days before this meeting, on January 26, 1966, the bargaining sessions had resumed. Heron, speaking for the Company, began this eighth session by reiterating the Company‘s refusal to speak to any economic issues until the non-economic issues were disposed of. Sheehan, for the Union, objected, stating that an offer on all the issues should be used towards inducing a compromise. Heron responded that he “wasn‘t experienced in those things,” and the parties then proceeded to review their outstanding differences on non-economic issues. During the course of the meeting the Union made a number of concessions on many of the non-economic issues. Prior to the end of the meeting Sheehan said that, in view of these concessions, the Company “should be in a position to make a counter proposal * * * on all the outstanding issues, including the economic issues.” Heron replied that he needed additional time “to go into those things.”
At the ninth meeting (February 18) the remaining divisive non-economic issues were reviewed and the Company agreed to respond in detail to each of the Union‘s economic demands at the next meeting. But at the tenth meeting (March 11) the Company merely explained its prevailing practices in economic areas such as overtime, holidays and sick leave. Upon the Company‘s refusal to submit a counterproposal on wages, the climate of the negotiations became quite heated. Sheehan complained that the Union had been waiting for months and the Union‘s newly-elected president, Scanlon, accused the Company of stalling. Heron warned the Union not to “threaten” him, but promised a wage proposal at the next meeting.
By letters of March 17 and May 25, however, the Company withdrew its promise to discuss a wage offer at the next meeting. These letters stated that the Company would not discuss the question of wages until all unresolved eco-
The final bargaining session took place on June 29, 1966. Heron stated the Company‘s current practices regarding subsidiary economic issues such as welfare plans, pension plans, holidays, vacations, severance pay, overtime pay and sick leave, noting that the Company was unwilling to depart from its position on these matters. He stated that he was “unprepared” to comment on wages. Sheehan then agreed to withdraw the Union proposals on the subsidiary economic issues and accept the existing Company practice with respect to each of those items if the Company would agree to a Union proposal for a two-year contract and a package wage plan. Heron asked for more time to study the offer and promised to contact Sheehan within two days.
On July 1 the Company, through Heron, wrote Sheehan that it could not accept the Union‘s “package” proposal because of the unresolved non-economic issues, and requested the arrangement of another meeting. Sheehan expressed his disappointment by a letter of July 8 but suggested a meeting within a week. When Heron advised Sheehan that he would be unable to meet the following week but desired to be contacted the week thereafter the Union, on July 29, filed the instant unfair labor practice charges.
While these charges were pending Sheehan, in response to an indication by Heron that talks should continue, requested another meeting. The parties agreed to meet on August 22. Meanwhile, during the first week in August, the pressmen were notified that a meeting would be held with production manager Pollock at a local inn. At the meeting, Pollock bought the six or seven attending pressmen beer and pizza, then encouraged a “free for-all” discussion. Pollock reminisced upon his own experience with unions, stating that he had had some “very good days” as a union member but had also “hated and dreaded the days when he had to walk and carry a placard.” He asked the men to “think twice” before they committed themselves. He further stated that he didn‘t know if Company president Tucker would approve of the employees forming their own union but he didn‘t think Tucker wanted any union, specifically mentioning ITU Local 6. Pollock hinted at the possibility of a “very big contract * * * if the air was clear” and, when asked what prompted that remark, said “I know what it‘s like to walk a picket line.” Pollock concluded by telling the employees that he spoke to them “strictly on his own initiative” and that they would have to make their own decisions.
On August 12, 1966, following “a number of informal discussions” among the employees, the pressmen voted to disassociate themselves from Local 366. They further voted “for another [NLRB] election and * * * to try and form [their] own local.” The results of this decision were reported to the Company. On August 19 Heron‘s secretary informed Sheehan by telephone that the scheduled August 22 meeting had been canceled. A subsequent explanatory letter, dated August 30, said that the meeting had been canceled because “it was made clear * * * that Local 366 did not represent a majority of the employees in the pressmen‘s unit.” The letter also enclosed a copy of a Company petition asking the Board to conduct another election. No further bargaining sessions were held between the parties.
In addition to the above facts, the trial examiner found that in the period between the Union‘s certification and the initiation of the unfair labor practice charges, the Company “repeatedly”
Upon a review of the record we believe that, with the exception of the findings as to unlawful wage increases, there is substantial evidence to support the findings of unfair labor practices found by the trial examiner and adopted by the Board. We, therefore, grant enforcement of the Board‘s Order except that, for reasons to be discussed below, we modify that portion of the order requiring the Company to bargain with the Union and order such bargaining only after a Board-conducted election has been held.
Good Faith Bargaining
Turning first to the alleged failure of the Company to bargain with the Union in good faith in violation of
As shown above, the Company here manifested resentment towards unionization even before its election victory and certification, when president Tucker posted his “memo to the pressroom” stressing the dire consequences of organization, the loss of a large customer and the possibility of employee layoffs. Shortly after the Union‘s election success, production manager Pollock criticized employee Lener for voting pro-Union. Subsequently, Lener‘s workweek was reduced by more than 13 hours. Anti-union conduct continued throughout the negotiations. Employee White was advised that his alignment with the Union was jeopardizing his chances for managerial advancement within the Company. Tucker told a group of pressmen that no one could force him to sign a contract, that he could quickly get new men for their positions if they should strike, that he deplored the possibility of having to deal with ITU Local 6, and that the pressmen
We further think that the trial examiner and Board were warranted in finding that the Company failed to bargain in good faith about wages and other economic items. Even prior to the undertaking of the negotiations, the Company had resolved not to discuss or “tackle” any economic matters until all non-economic issues were resolved. Whenever the Union requested a Company position on economic matters the Company would respond that it needed more time to formulate its proposals. But the Company, as part of its admitted policy, never intended to submit such proposals until “every single” non-economic issue had been settled and in fact never did submit such a proposal. The Union repeatedly conceded contested positions on non-economic issues and even offered to accept each and every prevailing economic practice of the Company if the Company would agree to a stated wage increase and a two-year contract but the Company rejected the plan—again on the ground that not all non-economic issues had been settled. The trial examiner and Board were therefore warranted in finding that “[b]y postponing or removing from the area of bargaining—to the very end of negotiations—most fundamental terms and conditions of employment (wages, hours of work, overtime, severance pay, reporting pay, holidays, vacations, sick leave, welfare and pensions, etc.) [the Company] reduced the flexibility of collective bargaining, [and] narrowed the range of possible compromises” with the result of “* * * rigidly and unreasonably fragmenting the negotiations * * *.” See Vanderbilt Products, Inc. v. N. L. R. B., 297 F.3d 833 (2d Cir. 1961) (Per Curiam).3 While it is true, as the trial examiner points out, that “there is no hard and fast rule concerning the order in which contract terms will or should be discussed” and that there is nothing illegal in the Company‘s aiming for the best possible contract, the refusal of the Company to make “significant concessions” to the Union even after the Union had accepted “all but a few of [the Company‘s] basic non-economic proposals constitutes evidence of bad faith on the part of the Company. N. L. R. B. v. Century Cement Mfg. Co., 208 F.2d 84, 86 (2d Cir. 1953).
Interference With Employees
We also concur with the conclusion of the trial examiner and the Board that the Company interfered with, restrained and coerced employees with respect to Union activities in violation of
Wage Increases
We are unable to agree with the conclusion of the trial examiner and Board that the Company‘s unilateral wage increases provide “still further proof of its failure to comply with the statutory requirements of good-faith bargaining.” The trial examiner found that the “wage increases varied in intervals and amounts from one individual to another and were in no sense automatic” and concluded that this conduct, in the light of its refusal to discuss wages, “naturally tended to undermine the authority” of the Union‘s bargaining representative. Earlier in his decision, however, the trial examiner qualified the facts from which he drew this conclusion in his finding that “[t]he record further shows that although in some instances (including the period before the Union‘s certification) employees were given increases approximately every six months, in others the time intervals, as well as the amounts, varied.” It is uncontested that the Company did not consult the Union prior to granting these increases.
Upon reviewing the record, we conclude that the wage increases were given pursuant to normal Company policy and that such increases existed as a “working condition” of the Company before the negotiations started. In view of the Company‘s written promise not to change any working conditions—e. g., salary increases to employees at roughly six-month intervals—failure to grant the usual increases might have been held against the Company as constituting punitive action against those engaging in Union activities. In N. L. R. B. v. Katz, 369 U.S. 736, 746-747, 82 S.Ct. 1107, 1113, 8 L.Ed.2d 230 (1962) the Supreme Court found improper certain raises which “were in no sense automatic, but were informed by a large measure of discretion.” In Katz, the danger seen in such discretionary increases during bargaining was two-fold: (1) that there would be no way for a union “to know
The Remedy
Having found—apart from the issue of the wage increases—that the Company‘s conduct did violate
“It is well established that the Board may properly order an employer found to have committed unfair labor practices to bargain directly with a Union which lost its majority subsequent to the employer‘s wrongful refusal to bargain with it. Franks Bros. Co. v. N. L. R. B., 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944). Nevertheless, we are not unmindful of the potency of such a remedy. Since it dispenses with the necessity of an election, there is always the risk that a bargaining representative may be imposed on employees, at least for a time, when they no longer wish it to represent them. N. L. R. B. v. Flomatic Corp., 347 F.2d 74 (2d Cir. 1965); N. L. R. B. v. Better Val-U Stores of Mansfield, Inc., 401 F.2d 491 (2d Cir. decided September 10, 1968).”
In N. L. R. B. v. Flomatic Corp., supra, in which the Board had found a
In Pembeck, decided after Better Val-U Stores, Judge Hays again dissented, pointing out that neither Flomatic nor Val-U Stores had reached to
In N. L. R. B. v. Adhesive Products Corporation, 281 F.2d 89, 91 (2d Cir. 1960), we noted that the employees “* * * should not be made the pawns of any union, the company, or of the Board * * * [and] should have an opportunity to express their choice in the manner provided by law.” In this case, requiring a new election is the best way to effectuate this policy.
On August 12, 1966, in a secret ballot taken without interference by the Company, the employees decided that they did not wish to continue as members of Local 366. Testimony heard before the trial examiner indicated that disenchantment with Local 366 began in January of 1966. Many of the employees had concluded that the Local 366 representatives “were not qualified to determine how many men and who goes where on the press and how the hourly wage should be,” and that the Union hadn‘t “kept in touch with them.” There were complaints about faulty membership cards which had been issued without the proper validation stamps and were therefore “valueless.” The shop steward had called the International Union office in Tennessee and learned that the International had no record of a union at the Company and that the required dues had never been received. The employees further complained that the Union had failed to keep in contact with them regarding the negotiations and had not allowed a representative of the employees
This testimony did not prevent the trial examiner from finding violations of the Act since “the employees’ defection and Union‘s majority loss [were], at least in substantial part, attributable to [the Company‘s] unfair labor practices * * *.” For the purposes of determining the proper remedy, however, we think such evidence bears on whether the Company‘s conduct has been “flagrantly hostile” within the meaning of Pembeck and its predecessors. On balance, while agreeing that the Company‘s anti-union expressions and bargaining-table delays may have had some influence on the employees’ secret ballot decision of August 12, 1966, we think that such conduct should not preclude a Board-conducted election before bargaining where, as here, “there is considerable doubt as to the employees’ continued desire to be represented by the Union,” Pembeck, supra, 404 F.2d at 113, and where much of the dissatisfaction felt toward the Union by the employees can be accounted for by acts of the Union itself.
We are not unmindful of the recent decision of the Supreme Court (June 16, 1969) in the group of cases which will be referred to as Gissel Packing, 395 U. S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (October Term, 1968). The subject matter and scope of those cases are best ascertained from the Court‘s own statement that they involve the extent of an employer‘s duty to recognize a union without a Board election on the basis of authorization cards from a majority of the employees and to bargain on that basis. The Supreme Court also vacated the judgment in Pembeck, 395 U.S. 828, 89 S.Ct. 2125, 23 L.Ed.2d 737 and remanded for further consideration by the Board in the light of Gissel Packing and the principles therein enunciated as to authorization card cases.
The teaching of these decisions does not apply to the narrow fact situation presented here. There is no issue as to an election because an election was held, the Union won and bargaining commenced. There is no issue even now as to the propriety of the election. Both employer and employees have indicated a desire for another election. The question for resolution here is: where the employees have voted to disassociate themselves from the Union which originally prevailed in an election and where there is no proof that this desire for disassociation was other than a voluntary act by the employees, will a federal court foist upon the employees an order to bargain with a union which they, according to their latest decision, no longer regard as the representative of their choice. This is not a case of allowing the employer “to profit from [his] own wrongful refusal to bargain.” See Franks Bros. Co. v. N. L. R. B., 321 U.S. 702 at 704, 64 S.Ct. 817 at 818, 88 L.Ed. 1020, but rather an attempt to secure for the employees that which the statute grants to them. Nor would it be of solace to them to be told that they would have to live with a union not of their choice for only a year and until decertification. Surely the courts will not be
We further note that although the passage of time between the filing of these charges and the issuance of the Board‘s bargaining order cannot, in and of itself, constitute a basis for conditioning enforcement upon a new election, N. L. R. B. v. Katz, 369 U.S. 736, 748, f. 16, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962),5 nearly three years have passed since the employees held the secret ballot election in which they repudiated the Union. In view of the Supreme Court‘s statement in Katz, supra, that “[i]nordinate delay in any case is regrettable * * *,” 369 U.S. at 748, f. 16, 82 S.Ct. at 1114, and in view of the possibility that there may have been a change of personnel in the pressroom since the secret ballot was taken, we suggest that an election requirement is made no less appropriate by the passage of time in this case.
Confident that the Company stands sufficiently warned against anti-union activities by our affirmance of the Board‘s findings, yet convinced that enforcement of the Board‘s order to bargain immediately with a Union repudiated by the employees is not in the interest of the employees under the facts before us, we believe that the Board should have ordered a new election within a reasonable time to permit the employees to express their choice as to a bargaining representative.
The Board‘s order will be enforced in all respects except as indicated above, and the direction to bargain is modified as set forth above.
FEINBERG, Circuit Judge (Concurring and dissenting):
I concur in the holding that the Board properly found violations of sections
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-
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 Flomatic 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, 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.
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,
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 case 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.