Operations In Fiscal Year 1988 - National Labor Relations Board

118 Fifty-Third Annual Report of the National Labor Relations BoardIn White Plains Lincoln Mercury, 152 the Board, reversing theadministrative law judge, set aside an election and issued a Gisselbargaining order based on unfair labor practices during the preelectioncritical period that were not specifically alleged as objectionsby the union.Following an election, the union filed two specific objectionsand a third "catch-all" objection to its conduct. The RegionalDirector overruled the two specific objections, but . ordered ahearing on the third "to the extent that [it paralleled the substanceof] allegations in paragraph 11 of the Complaint." Paragraph11 alleged a coercive interrogation; which was the onlyunfair labor practice alleged in the complaint as having occurredduring the postpetition critical period.In the consolidated proceeding, the judge determined that therespondent committed certain unfair labor practices and he dismissedothers. Among those dismissed was the interrogation allegedin paragraph 11. However, the judge also determined thatthe respondent had committed other unfair labor practices duringthe critical period. Although these were not alleged in the complaint,they were fully and fairly litigated at the hearing. Thejudge found that these unfair labor practices would justify settingaside the election, but he reasoned that he was constrained bythe narrow wording of the Regional Director's order consolidatingthe proceeding and could consider only the nonmeritoriousallegations of paragraph 11 as potentially objectionable preelectionconduct. Citing Irving Air Chute Co. 153 and Bandag, Inc.,'"the judge concluded that in the absence of meritorious objections,he 'could not set aside the election and impose a remedialbargaining order.The Board disagreed both with the judge's overly restrictiveinterpretation of his authority to consider objectionable conductand with his interpretation of Irving Air Chute and Bandag.The principle enunciated in Irving Air Chute is that in a consolidatedunfair labor practice/representation proceeding theBoard will not direct a bargaining order to remedy a respondent'sunfair labor practices even if they occurred during the criticalpreelection period, unless the election is itself first set asideon the basis of a union's objections. In Bandag I, following theIrving Air Chute principle, the Board determined that, becausethe union had withdrawn its objections to the election, it wouldnot order the employer to bargain despite the fact that unfairlabor practices were committed during the critical period. Thiswas because the election was no longer under dispute by the partiesand its results should be considered fmal.152 288 NLRB No. 122 (Chamman Stephens and Members Johansen, Babson, and Cracraft).153 149 NLRB 627 (1964), enfd. 350 F.2d 176 (2d Cir. 1965).154 225 NLRB 72 (1976) (I3andag I) and 228 NLRB 1045 (1977) (Banda II), remanded on othergrounds 583 F.2d 765 (5th Cir. 1978).