Gibson Products Co. of Washington Parish, Lal, Inc.

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gibson Products Company of Washington Parish, La., Inc. and Retail Clerks Union, Local \o. 390 of Bogalusa , Louisiana , affiliated with Retail Clerks International Association, AFL-CIO. Case I5-CA-3244 August 27, 1970 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN, AND JENKINS On September 24, 1968, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding,' finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, and ordering the Respondent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, including bargaining with the Union. On June 16, 1969, the Supreme Court of the United States issued its opinion in N.L R B v. Gissel Packing Company,' in which it laid down certain guidelines relating to the finding of violations of Section 8(a)(5) and to the issuance of bargaining orders based upon such violations and upon violations of other sections of the Act. Thereafter the United States Court of Appeals for the Fifth Circuit remanded the instant proceeding to the Board for reconsideration in the light of that Court's decision in N.L.R.B. v. American Cable Systems, Inc., 414 F.2d 66, which followed Gissel On August 19, 1969, the Board informed the parties that the Board would reconsider its 8(a)(5) finding and the bargaining order in this case and invited the parties to file statements of position. Such statements have been filed by the General Counsel and Respondent Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. In its initial decision the Board found that the Respondent violated Section 8(a)(1) by: (1) interrogating employees regarding their union meetings, who attended, and what they hoped to gain from the Union; (2) creating the impression of surveillance by telling the employees their meetings and who attended were known to Respondent's officials; (3) threatening to eliminate "special favors" and by eliminating special favors such as the right to charge drugs ; and (4) attempting to induce the employees to abandon the strike and negotiate ' 172NLRBN 233 j395 U S 575-1969) directly with and receive the benefits sought from the Respondent without the intervention of the Union. The Board also found that at the time of its original bargaining request the Union represented a majority of the Employer's employees in an appropriate unit and was entitled to recognition as their exclusive collective-bargaining representative, and further that the Employer, by insisting upon an election in the absence of a good-faith doubt and employing the time thus gained to dissipate the Union's majority, violated Section 8(a)(5), and issued a bargaining order. In view of the Supreme Court's opinion in Gnsel, we do not rely upon our earlier finding that the Respondent violated Section 8(a)(5) b} refusing to bargain with the Union in the absence of a good-faith doubt of the Union's majority status We find, rather, that by refusing to bargain with the Union and by engaging in a series of unfair labor practices to undermine the Union's majority status the Respondent violated Section 8(a)(5) These violations were not in any sense minimal but are such as strike at the very heart of a union's representative capacity with widespread and persistent effects. The coercive effects of Respondent's unlawful acts cannot be eliminated by traditional remedies, and were of a nature as to make a fair election doubtful, if not impossible. Under these circumstances, the purposes of the Act can best be effectuated by reliance on the employees' desires for union representation as expressed by their signed authorization cards rather than on the results of an election conducted in an employer-contaminated atmosphere. Accordingly, we find that the order previously issued to remedy the Respondent's unfair labor practices is appropriate to remedy the violations found, and we shall affirm it In reaching the conclusion that a bargaining order is warranted, we have considered the position of the Court of Appeals for the Fifth Circuit as set forth in N L R.B. v. American Cable Systems, Inc., 427 F.2d 446, decided subsequent to the remand in the instant case. In that decision the court stated that under Gissel no bargaining order should issue unless at the time such an order is directed the Board "finds the electoral atmosphere unlikely to produce a fair election . .." We respectfully disagree. In our view, the holding of the court misconceives the rationale of the Gissel decision and would render a bargaining order inappropriate in a large majority of the cases where the Supreme Court sanctioned its use. In Gissel, the Supreme Court affirmed, without qualification, the settled principle that a bargaining order is not rendered inappropriate by the circumstances that a union has, or may have, lost its majority status between the time of the commission of the employer's unfair labor practices and the Board's decision. The Court stated (395 U.S. at 610): We have long held that the Board is not limited to a cease-and-desist order in such cases, but has authority to issue a bargaining order without first 185 NLRB NO. 74 GIBSON PRODUCTS COMPANY 363 requiring the union to show that it has been able to maintain its majority status See N L R B. v. Katz, 369 U.S. 736, 748, n. 16 (1962), N L.R.B. v. P Lorillard Co., 314 U S. 512 (1942). And we have held that the Board has the same authority even where it is clear that the union, which once had possession of cards from a majority of the employees, represents only a minority when the bargaining order is entered . Franks Brothers Co v. N.L R B, 321 U S 702 (1944). We see no reason now to withdraw this authority from the Board. . For, the Court added (id. at 610-611): If the Board could enter only a cease-and-desist order and direct an election or a rerun, it would in effect be rewarding the employer and allowing him "to profit from [his] own wrongful refusal to bargain," Franks Brothers, supra, at 704, while at the same time severely curtailing the employees' right freely to determine whether they desire a representative The employer could continue to delay or disrupt the election processes and put off indefinitely his obligation to bargain; and any election held under these circumstances would be unlikely to demonstrate the employees' true undistorted desires. The Court, in Gissel, also rejected the consideration, which appears to underlie the decision of the court of appeals, that, to impose a bargaining order on employees who may not now desire the union , "is an unnecessarily harsh remedy that needlessly prejudices employees' Section 7 rights" (395 U.S at 612). The Court stated (ibid ): Such an argument ignores that a bargaining order is designed as much to remedy past election damage as it is to deter future misconduct. If an employer has succeeded in undermining a union's strength and destroying the laboratory conditions necessary for a fair election, he may see no need to violate a cease-and-desist order by further unlawful activity. The damage will have been done, and perhaps the only fair way to effectuate employee rights is to reestablish the conditions as they existed before the employer's unlawful campaign... The Court added (id. at 613): There is, after all, nothing permanent in a bargaining order, and if, after the effects of the employer's acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a representation petition . These excerpts from Gissel, in our view, make it plain that the Supreme Court fashioned no different rule for authorization card cases from that which it applies in other cases where the union has lost its majority status as a result of the employer's unfair labor practices and the time required for the Board to "catch-up" with that unlawful action. In the former, no less than the latter, the Court held that the Board could properly impose a bargaining order even though the union may not in fact represent a majority of the current employee complement. It follows, therefore, that in determining whether the employer's unfair labor practices are of such a nature as to preclude a fair election and thus necessitate a bargaining order based on a past card showing of majority status, the situation must be appraised as of the time of the commission of the unfair labor practices, and not currently. For, in virtually every case, by the time a Board decision is reached, there is likely to be sufficient employee turnover and other changes to make it arguable, where the employer has meanwhile refrained from committing new unfair labor practices, that an election held now would be free of the taint of the old unfair labor practices. But, the union and the employees then supporting it were entitled to an election at an earlier time, and, if the employer's original unfair labor practices were of such a nature as to deprive them of an election at that time, to permit one now, when the union's support has been unlawfully dissipated, "would in effect be rewarding the employer and allowing him `to profit from [his] own wrongful refusal to bargain."' Gissel, supra, 395 U.S. at 610.3 The propriety of our interpretation of Gissel is confirmed by a consideration of the Supreme Court's ultimate disposition of the four cases involved therein. Thus, the Court held that a bargaining order would be appropriate in either of two situations (1) where the employer's unfair labor practices are so "pervasive" and "coercive" that it is the only effective means of remedying those unfair labor practices; or (2) where the unfair labor practices, though less substantial, are nevertheless such that "the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through [authorization] cards would, on balance, be better protected by _a bargaining order. . ." 395 U.S. at 614-615. In Sinclair, one of the four cases involved in Gissel, the Court concluded that the Board's finding "that the employer' s threats of reprisal were so coercive that, even in the absence of a Section 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of those threats" was sufficient to satisfy the first standard , and enforced the Board's bargaining order without more (id. at 615, 620). In the remaining three cases, the Court concluded that the Board had made no similar finding, nor had it made a finding which would satisfy the second standard , since its "current practice at the time required it to phrase its findings in terms of an employer's good- or bad-faith doubts" (id. at 616). Accordingly, it remanded those cases to the Board for further findings, adding, "[w]e The Court spc iii ,tlh noted that an empio%er s nil PaMul umduU ohfLh cause, an eleLuon to he ,et ,tsidk does more than sun ph deli% his bargaining obligation The Lmplo\er' i,tn a. elIeLt the outcome of a ruun elei.uon h. dela,inn tdLttc, for lieu re, short I It th1. Ionae.r the time bettteen t tainted elewon and a rerun the lesser ar. thL union , thanLe, of retching the outcome of the Imt elci.ton 19^ LI S at 611 In 30 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD think it possible that the requisite findings were implicit in the Board's decisions below to issue bargaining orders" (ibid ). The forthwith enforcement of the bargaining order in Sinclair and the suggestion that all the ingredients for s bargaining order were already present in the other three cases serves in our opinion, to confirm that the Supreme Court contemplated that the propriety of a bargaining order would be judged as of the time of the commission of the unfair labor practices and not in the light of subsequent events. SUPPLEMENTAL ORDER Based on the foregoing, and the entire record in this case, the National Labor Relations Board hereby affirms its Order issued in this proceeding on September 24, 1968.