Richard L. WINDSOR, Plaintiff-Appellant, v. THE TENNESSEAN, et al., Defendants-Appellees.
No. 81-5668.
United States Court of Appeals, Sixth Circuit.
Jan. 23, 1984.
277
In the case before us, the Board found that the Company‘s conduct fell within Category II. The Board concluded that the Company‘s history of practices which tended to “undermine majority strength and impede the election process” could not be “readily rectified by traditional remedies short of a bargaining order.” The NLRB in this case, therefore, was well within its wide discretion under Gissel to impose a bargaining order. Moreover, this Circuit has explicitly sanctioned bargaining orders in circumstances where a “nexus” between an employer‘s unfair labor practices and the undermining of Union majority support can be inferred. Automated Business Systems v. NLRB, 497 F.2d 262 (6th Cir.1974). See also Daisy‘s Originals v. NLRB, 468 F.2d 493 (5th Cir.1972). The Board inferred such a “nexus” from the facts of this case. We conclude that substantial evidence supports that inference and that the Board‘s bargaining order was a remedial measure well within its wide discretion.
Accordingly, the Board‘s petition for enforcement is hereby GRANTED.
ORDER
A majority of the court having not voted in favor of an en banc rehearing, the petition for rehearing has been referred to the hearing panel for disposition.
The court notes two arguments in the petition that have not previously been raised. The government contends that this courts’ opinion, reported at 719 F.2d 155, is inconsistent with the following decisions: Bush v. Lucas, — U.S. —, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Braun v. United States, 707 F.2d 922 (6th Cir. 1983). Those cases held that where Congress has provided federal employees with elaborate civil service or statutory remedies, the courts should be loathe to create additional remedies.
This court‘s opinion does not conflict with that rule, however, because Windsor was not a civil service employee who could take advantage of the comprehensive system of civil service remedies. Nor was a statutory remedy available.
Secondly, the government‘s brief in support of its petition exaggerates when it states that the effect of this court‘s decision is “that any federal employee who is dissatisfied with a firing, demotion, or an adverse performance evaluation is free to bring a suit for damages against the responsible supervisor...” (brief at 14). This argument ignores the fact that civil service employees will not be able to bring suit under
Accordingly, the petition for rehearing hereby is DENIED.
MOYNAHAN, Chief District Judge, dissenting.
For the reasons expressed in my opinion concurring in part and dissenting in part in this case, I would grant rehearing.