Extract
U.S.A. Polymer Corp., 1242 (1999)
U.S.A. Polymer Corp. and Texas-Oklahoma-Arkansas District Council-UNITE. Cases 16- CA-17189 and 16-CA-17455
August 24, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND HURTGEN On March 25, 1996, Administrative Law Judge Wallace H. Nations issued the attached decision. The Respondent and the General Counsel filed exceptions and supporting briefs, and the Charging Party filed a brief in support of the General Counsel's exceptions and a response in opposition to the Respondent's exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1 and conclusions to the extent discussed below, and to adopt the recommended Order, as modified and set forth in full below.2 We agree with the judge's findings that the Respondent committed numerous, egregious violations of Section 8(a)(1), (3), and (4) of the Act and that a bargaining order should issue under the principles enunciated in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).3 The Board will issue a bargaining order, absent an election, in two categories of cases. NLRB v. Gissel Packing Co., supra. The first category is "exceptional" cases, those marked by unfair labor practices so "outrageous" and "pervasive" that traditional remedies cannot erase their coercive effects, thus rendering a fair election impossible. The second category involves "less extraor- dinary cases marked by less pervasive unfair labor practices which nonetheless have a tendency to undermine majority strength and impede election processes." In the latter category of cases, the "possibility of erasing the effects of past practices and of ensuring a fair election . . . by the use of traditional remedies, though present, is slight and employee sentiments once expressed by authorization cards would, on balance, be better protected by a bargaining order." NLRB v. Gissel Packing Co., supra at 613, 614-615; and Cassis Management Corp., 323 NLRB 456, 459 (1997). 1 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We shall modify the judge's recommended Order in accordance with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996), and Excel Container, Inc., 325 NLRB 17 (1997). 3 In its brief in support of exceptions, the Respondent contends that there has been no determination of the appropriate bargaining unit. The judge did, in fact, make such findings in his decision at fn. 59. and in his conclusions of law, item 3. The Respondent has neither filed exceptions to these findings nor disputed the judge's description of positions within the production and maintenance unit. Accordingly, we adopt the judge's finding concerning the unit appropriate for collective-bargaining within the meaning of Sec. 9(b) of the Act as set forth in item 3 of his conclusions of law. Similarly, the Respondent has not filed exceptions to the judge's findings that the Union attained majority status in January 1995 or to his findings concerning the authentication of 47 authorization cards in the unit of 64 employees. The record shows that 41 cards were signed on or before January 21, 1995, and that the remaining 6 cards were signed on or before January 27, 1995. Accordingly, we adopt the judge's findings concerning majority status. We find that the violations at issue in the instant case constitute category I conduct within the meaning of Gissel. The Respondent embarked on a series of pervasive and increasingly coercive unfair labor practices within weeks of the advent of the employees' union activity. The first union contact with employees occurred in the latter part of September 1994, and the Union began its formal organizing campaign in the early part of October 1994. By January 27, 1995, the Union had attained majority status in the bargaining unit. As more fully described in the judge's decision, the Respondent unlawfully interrogated employees about their union activity and the union activity of their fellow employees. The Respondent also unlawfully threatened employees with more onerous working conditions, physical harm, layoff, discharge and other unspecified reprisals for engaging in union and protected concerted activity. Employees were unlawfully subjected to surveillance and unlawfully promised a bonus or other rewards for not supporting the Union. ...See the full content of this document
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