On Petition for review and cross application for enforcement of an order of The National Labor Relations Board.
Gibbons and Higginbotham, Circuit Judges and Newcomer, District Judge*fn*
Haddon House Food Products, Inc. and Flavor Delight, Inc. (the employers) petition pursuant to section 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f)(1982), to review an unfair labor practice order issued by the National Labor Relations Board, reported at 269 N.L.R.B. No. 338 (1984). The Board has filed a cross-application for enforcement both against the employers and against Local 80, Food and Allied Service Workers, chartered by United Food and Commercial Workers, AFL-CIO (Local 80). Local 80 has intervened, as has the charging party before the Board, Local Union No. 115, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 115). We enforce the Board's order.
The employers are engaged in the manufacture, sale and distribution of food products at premises in Medford, New Jersey. They have common management and unified labor relations policies, and comprise a single employer for purposes of the National Labor Relations Act. In November of 1975, Local 115 obtained a substantial number, although not a majority, of union authorization cards from employees in the Medford bargaining unit. On November 19, 1975, Local 115 filed a petition for a representation election. On November 21, 1975, Local 115 filed unfair labor practice charges against the employers. The election petition was held in abeyance by the Board pending resolution of the unfair labor practice charges.
On June 12, 1979, the Board resolved the unfair labor practice charges against the employers. The Board found that the employers had responded to Local 115's organizational campaign by engaging in numerous violations of section 8(a)(1) and (3) of the Act, 29 U.S.C. § 158(a)(1) and (3) (1982). These violations included discharging eight employees for engaging in union activities, the refusal to reinstate fourteen unfair labor practice strikers, and widespread threats of discharge for engaging in protected activities. The Board ordered the employers to cease and desist from engaging in the unfair labor practices it found, and from in any other manner interfering with, restraining, or coercing their employees in the exercise of their statutory rights. It ordered the employer to offer reinstatement with back pay to the eight discharged employees and the fourteen unreinstated strikers.
The Board also ordered to usual notice posting, and directed the employers to grant Local 115 and its representatives access to employer bulletin boards, and to nonwork areas in the plant during employees' nonwork time. It ordered the employers to permit Local 115's representatives the opportunity to deliver a thirty minute speech to employees during working hours at least forty-eight hours but not less than ten working days before any Board representation election in which Local 115 participated. These access remedies were ordered to dissipate the atmosphere of fear created by the employers' unlawful conduct, and in lieu of a bargaining order. A bargaining order was not ordered because Local 115, while obtaining a sufficient number of authorization card signatures for a representation election, had not obtained a card majority. The Board's order, reported at 242 N.L.R.B. 1057 (1979), was substantially enforced by the Court of Appeals for the District of Columbia Circuit. Teamsters Local 115 v. NLRB, 205 U.S. App. D.C. 306, 640 F.2d 392 (D.C. Cir.), cert. denied, 454 U.S. 827, 102 S. Ct. 119, 70 L. Ed. 2d 102 (1981). That court rejected both Local 115's contention that a bargaining order should have been entered, and the employers' contention that access remedies were inappropriate. The judgment enforcing the Board's order was issued on November 4, 1981. The order had not, in the meantime, been fully complied with.
Following the decision of the Court of Appeals enforcing the Board's order, but while a petition for certiorari seeking Supreme Court review of that decision was pending, Local 80, about June 15, 1981, commenced an organizing campaign by leafletting employees at the Medford plant. On June 29, Local 80 demanded recognition. The American Arbitration Association conducted a union authorization card check and certified to the employers that a majority of employees in the bargaining unit had signed Local 80 cards. Local 115 was not notified of the card check, and the American Arbitration Association was not notified of Local 115's pending representation election petition, or of the prior unfair labor practices. On July 8, the employers recognized Local 80, and on July 24, entered into separate collective bargaining agreements, one covering production employees, and one covering warehouse employees. Both Local 80 contracts contain union-security clauses requiring all covered employees to become members of that local.
By the time the employers recognized Local 80 and entered into collective bargaining agreements with it, they had offered reinstatement to all of the eight dischargees, and to eleven of the fourteen unfair labor practice strikers. They had not complied, however, with any of the Board's remedial notice and access requirements. ...