Recent Decisions of the NLRB-The Reagan Influence

ly on the principle of majority rule," a concededly important principle but one which "has never been interpreted as standing in supreme isolation from Board's other statutory policies and purposes."' 30 The majority argued that the employer's outragous unfair labor practices had precluded a free and fair election and concluded that the risk of imposing a union against the wishes of the majority "is greatly outweighed by the risk that, without a bargaining order, all employees would be indefinitely denied their statutory right to make a fair determination whether they desire union representation.''3 Conair was denied enforcement by a divided D.C. Circuit which, like the Board, split over the tension generated between majority rule and remedial efficacy. 32 In Gourmet Foods, the Board overruled Conair 127. Id. at 614. 128. In 1981, the Board issued a Gissel-I order in United Dairy Farmers Coop. Ass'n (II), 257 N.L.R.B. 772 (1981). Its order, however, was in response to an order of the Third Circuit denying effect to the Board's earlier decision that it had no such power. United Dairy Farmers Coop. Ass'n (I), 242 N.L.R.B. 1026, enforced as modified, 633 F.2d 1054 (3d Cir. 1979). In its 1979 decision, the Board split three ways. Two members thought the Board "may" have Gissel-I authority, but should not exercise it because of the risk to majoritarian principles. 242 N.L.R.B. at 1028. One member thought there was no such authority. Id. at 1038-45. The other two members thought that the Board had Gissel-I authority, and would have imposed such an order. Id. at 1031-38. On review, the Third Circuit decided that the Board had Gissel-I authority and remanded the case, observing that the "mere absence of such indicia of majority support does not in itself preclude the issuance of a bargaining order." 633 F.2d at 1068. On remand, the Board had only three members. Two of them, Fanning and Jenkins, had defended the Board's authority in the original decision, and embraced the Third Circuit opinion. Member Zimmerman, who did not participate in the original decision, joined in the Board's order only because of the Third Circuit's opinion. He, therefore, found it "unnecessary to determine whether the Board has such authority." 257 N.L.R.B. at 772 n.8. 129. 261 N.L.R.B. 1189 (1982), enforcement denied, 721 F.2d 1355 (D.C. Cir. 1983). 130. Id. at 1193. 131. Id. at 1194. 132. The majority found that the Board had no authority to issue non-majority bargaining orders. Conair, 721 F.2d at 1383-84. The dissenting judge found that such authority existed at least where it was reasonable to believe that the union would have gained majority support. Id. at 1390-91. This factor was part of the United Dairy Farmers test, but was not among the criteria approved for a Gissel-I order by the Board in Conair. The D.C. Circuit had previously commented on the same issue in Teamsters Local 115 (Haddon House Food Prods.) v. NLRB, 640 F.2d 392 (D.C. Cir. 1981), cert. denied, 454 U.S. 837 (1982), indicating potential disagreement with the Third Circuit's opinion in United Dairy Farmers, 633 F.2d 1054, discussed supra note 128. [Vol. 60:227 RECENT NLRB DECISIONS and produced yet another divided opinion on the scope of its remedial