Based on the conduct described above, there is reasonable cause to believe that respondent has violated sections 8(a)(1), 8(a)(3), and 8(a)(5) of the NLRA. There is also reasonable cause to believe that respondent's illegal behavior destroyed the status quo that existed just prior to its illegal behavior and undermined the strong pro-Union momentum that had developed among unit workers at KNZ. There is reasonable cause to believe respondent's response to the attempts to unionize was effective in discouraging unionization, consisting as it did of loss of work for two key Union supporters in a unit of seven and effective intimidation of other workers by this example and by threats and other intimidating conduct.
III. WHAT IS JUST AND PROPER
Although the court has reasonable cause to believe that serious violations of the NLRA have occurred, it will not grant the requested relief unless it is "just and proper" to do so. As stated above, the only remaining contested relief is the interim bargaining order. The Board requests that the court order KNZ, on an interim basis, to recognize and, upon the Union's request, to meet and bargain in good faith with the Union as the exclusive collective bargaining representative of the employees in the unit.
Respondent argues, first, that the Board has contributed to unreasonable delays so that there is no longer any urgency and the Board is not deserving of the requested injunctive relief. Respondent notes that the initial unfair labor charge was filed by the Union on March 9, 1994, and the Board did not file the petition for the injunction until September 7, some six months later. It further argues that, while the time span between commission of unfair labor practices and filing for interim injunctive relief is not, by itself, determinative of whether the court should grant relief, a period of six months suggests that whatever detrimental effects may have resulted from the unfair practices have already taken their toll on the organizational drive, so that an injunction would not be more effective than a final order from the Board following administrative review.
At oral argument, counsel for petitioner explained that some of the delay was due to the fact that the Board is neutral when charges are first filed. It is not until after it has investigated the charges that the Board decides whether to proceed in the case, and nearly two-thirds of charges filed before the Board are dismissed. In this case, while the Union's first charge of unfair labor practices was filed on March 9, its second charge was not filed until May 20, 1994, following respondent's lay-off of Schlemback. The Board issued a complaint and notice of hearing on June 30, 1994, about six weeks after the second unfair labor practices charge, and filed the petition for injunctive relief on September 7, a little over two months later. The petition by the Board for interim injunctive relief was thus filed less than four months after the last unfair labor charge.
In Pascarell, the court of appeals reasoned that a delay of six months between the last unfair labor charge and the petition for interim injunctive relief was not too long. Pascarell, 904 F.2d at 881. The court of appeals said, with respect to a district court's evaluation of the amount of time the Board is allowed to take before filing a petition, that "there is a certain leniency that the Board must be afforded, stemming from the deference to the Board that is built into the statutory scheme." Id. It went on to quote from an opinion of the United States Court of Appeals for the First Circuit, which noted, "The very fact that [the Board] must exercise discretion, and that its decision is entitled to presumptive weight . . . indicate that it should have time to investigate and deliberate." Id., quoting Maram v. Universidad Interamericana, 722 F.2d 953, 960 (1st Cir. 1983) (alterations in Pascarell). While undue delay reduces the Board's credibility in arguing that the injunctive relief is necessary, given the ongoing and cumulative nature of the unfair labor practices in this case, as in Pascarell, and the necessity for careful deliberation, the court concludes the delay was not too long.
The Supreme Court set out the law with respect to bargaining orders in NLRB v. Gissel Packing Co., 395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969). There, the Court discussed the circumstances under which the Board can order an employer to bargain with a union that lost a representative election. If the union cannot demonstrate that it once had a majority, the Board may issue a bargaining order only in "exceptional" cases of "outrageous" and "pervasive" unfair labor practices. Id. at 613. However, where the union can demonstrate that it once had a majority, the Board may issue the order "in less extraordinary cases marked by less pervasive practices which nonetheless still have a tendency to undermine majority strength and impede the election process." Id. Orders granted under these two circumstances are called Gissel I and Gissel II bargaining orders, respectively. NLRB v. Atlas Microfilming, 753 F.2d 313, 316 (3d Cir. 1985).
A Gissel II bargaining order is appropriate where (1) the illegal practices have the tendency to undermine majority strength and impede the election process; (2) the union had a majority at one point; and (3) 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 sentiment once expressed through authorization cards would, on balance, be better protected by a bargaining order. Gissel, 395 U.S. at 614-15.
In this case, it is appropriate to consider a Gissel II bargaining order, and the court concludes the petitioner has met the requirements under Gissel for such an order. First, there is reasonable cause to believe that respondent's illegal practices had the tendency to undermine majority strength and impede the election process. After respondent laid off two key Union supporters, Fowler and Schlemback, repeatedly threatened a third, Dallegro, and interrogated others, momentum toward unionization came to a halt. There is reasonable cause to believe it did so because the remaining unit employees were intimidated by respondent's illegal conduct and feared they might suffer the same fate as Fowler and Schlemback if they pursued unionization.
Second, there is reasonable cause to believe the Union had a majority at one point. A majority of unit workers supported the Union when they signed the Union authorization card on February 9, 1994. In Gissel, in determining whether a majority of unit employees once supported the Union, the Supreme Court held that it would examine the language of the authorization cards the employees signed, stating that "employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language on the card." Gissel, 395 U.S. at 606. Here, six of the seven unit employees signed cards stating, in part:
I understand and agree that my execution of this authorization card will enable the Union to secure recognition from my Employer as my sole and exclusive collective bargaining representative, without the need for any election conducted by the National Labor Relations Board, or any other agency.