National Labor Relations Board v. American Cable Systems, Inc.
427 F.2d 446
5th Cir.
1970
Check Treatment

*2 Act, and as summarized Before AINS- GOLDBERG and above, only precluded a fair elec- WORTH, Judges, SPEARS, and Circuit tion, pervasive but were of such and Judge. District aggravated character as to warrant finding, make, which we now GOLDBERG, Judge. directing Respondent In the act of first what we trust will bargain with the Union is play and two-act not a drama repair their unlawful effects. The Shakespearian proportions, we re aforementioned conduct has under- manded this case to the National Labor mined Union’s findings Relations additional caused an election to be a less reliable Packing Co., of NLRB v. Gissel guide employees’ to the free choice 1969, 1918, 575, 395 U.S. 89 S.Ct. 23 L. signed than the authorization cards remanding Ed.2d 547. In we said: they designated the Union to represent bargain- “Under them.” the Gissel (a) issue where: supplemental On the basis of these union had valid again authorization petitions cards from a requiring court to enforce its order appropriate unit; recognize (b) prac- Having Union. determined that Katz, 1962, 736, 369 U.S. the Board are still der. these 230; v. 8 L.Ed.2d 82 S.Ct. of Gissel Mills, once Mexia Textile justify a 1067; 94 L.Ed. the Board for addition- remand NLRB, 1944, 321 U. Franks Bros Co. al 1020; 817, 88 L.Ed. S. *3 making on De- its determination In Co., 1942, 314 U.S. P. Lorillard Company’s 1965 1969, that the cember 86 L.Ed. 380. We preclud- (1) and of reasoning inap the of these cases find a and necessitated bar- fair election ed a case, however, plicable the instant be specifically rgaining the Board Supreme Court’s decision in cause of the to consider evidence offered refused the Court made it In Gissel Gissel. Company that a the /Complete turnover] bargaining plain a order issued on that departure of the the in majority a not the of is the basis management only the official involved in establishing preferred method of a un practices made a free elec- unfair labor representative and that such ion’s status possible that time. The Board’s at tion order issued when an changes occur- to consider these refusal possibility “the of the Board’s years ring intervening appar- the was *** ensuring a election ently predicated opinion the *** reme the use of traditional v. L. Foster Ninth B. slight dies, though present is Co., In Foster1 9 Cir. at at 1940. The changes complaint oc- that was made bargaining placed in Gissel thus Court original curring or-; the Board’s between a. on a card orders based proceedings der enforcement category: extraordinary special rem an bargaining, made enforcement edy Board to available to the overcome! inequitable. to’ The court refused order polluting employer’s! of the effects changes consider those and enforced practices on the labor electora} original find- order based on the Board’s atmosphere. is The order not a tradi case, however, ings. The Foster is dis-'} remedy, punitive but a thera tional tinguishable was de- it not, therefore, type peutic It one. re-; it cided after Gissel involve automatically remedy which enti that mand in case to the Board at time after tled enforcement findings. In for additional the instant prac of the unfair the occurrence labor a different situation obtains. The g., See, Textile tice. e. NLRB Mexia inade-', original findings were Board’s Mills, Inc., supra. contrary, On the quate teachings of under the Gissel and Supreme indicated an that open; had to be remanded the case bargaining! than free election rather for further We remedy preferred if such order is the that on remand the Board should have possible. We think clear election is the; opportunity taken to consider foregoing from the that the Court existing then situation at American Ca-. clearly contemplated no bar Gissel determine ble to whether electoral gaining order unless at should be issued atmosphere still so contaminated issues the time the Board such justi- that a order was then atmosphere unlikely it finds the electoral fied. produce a fair election. not un In so we are case the Board the instant general long stand aware rule finding before it issued made no such compliance the Board 3, 1969, or-\ the December der, other loss of union or In asked enforce. we are here occurring changes after an unfair refused to on remand stead, ¡look necessity usually proper contemporary are not reasons at order, satisfying itself denying or- enforcement regurgitation (Rule jejune Company’s it, voted in favor of waywardness. Procedure; Appellate We deem such find- Rules of Federal 12) insufficient under of Local Fifth Circuit Rule the Petition a 1970 Gissel to or- Bane is also denied. apply pro der. Gissel does not nunc giving principle, the then

tunc sins application. a now Jt.re- view, contemporaneity present —a

jquires prospective. historical [albeit democracy Industrial should be allowed

!to if work will conditions n sufficiently antiseptic for an election. hand, On the other if America, UNITED STATES of *4 Plaintiff-Appellee, existence, have Gissel commands the issuance order. Philip McKINNEY, William Defendant- not address itself to Appellant. question, must we remand fori further as to the neces-' sity for a order. Circuit. Sixth addition, a further word previous caution is in order. In our disposition requested of this case we from response the Board. The litany, reciting

which we received was a conclusions rote without factual ex-

plication. We questions believe that

involved this area of labor law are far

too for such formalistic perfunctory treatment. Since Gissel

teaches us that authorization cards are trustworthy

not as as ballots all con- cerned particularly must be careful lest principles majoritarianism in un- representation ion unnecessarily frus-

trated the cavalier use

orders. We therefore remand to the hope Board with the that we here have given guidance controversy resolve this ap- now

proaching anniversary. fifth

Remanded.

ON PETITION FOR REHEARING

AND PETITION FOR REHEAR- EN

ING BANC

PER CURIAM: Petition is denied polled

and the Court been at the

request of one members of the

Court and a the Circuit Jqdges regular who active service