Garland Knitting Mills of Beaufort, South Carolina, Inc.

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Garland Knitting Mills of Beaufort , South Carolina, Inc. and International Ladies' Garment Workers' Union, AFL-CIO. Cases 1l-CA-3067, I1-CA-3148. and 1 1-CA-3188 September 11, 1969 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On March 28, 1968, the National Labor Relations Board issued its Decision in the above-entitled proceeding,' finding that Respondent had engaged in certain conduct in violation of Section 8(a)(1), (3). and (5) of the National Labor Relations Act, as amended, and ordering Respondent to cease and desist therefrom. and to take certain affirmative action, set forth therein. Thereafter, on July 18, 1969, the United States Court of Appeals for the District of Columbia Circuit entered its order in these cases,' enforcing the Board's 8(a)(1) and (3) findings and affirming the Board's factual finding that the Union, on March 7, 1966, possessed valid designation cards from a majority of the employees in the unit. However, the Court remanded the remaining portion of the decision for reexamination of the Board's 8(a)(5) finding and its order to bargain in the light of the guidelines laid down by the Supreme Court's intervening decision in N.L.R.B. v. Gissel Packing Company,' stating: . . . we remand this case to the Board to determine whether, 'even in the absence of a Sec. 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of the [company's unfair labor practices].' In making that determination the Board should consider whether, in view of the company's unfair labor practices, `the risks that a fair rerun election might not be possible were too great to disregard the desires of the employees already expressed through the cards ....' 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 these cases to a three-member panel. Having accepted the remand, the Board, on July 31, 1969, issued a Notice granting permission to the parties to submit statements of position with respect to the issue remanded by the court of appeals. Such statements were duly filed by the Respondent and the General Counsel. The Board has considered the statements of position and the entire record in this proceeding and, for the reasons set forth below, shall reaffirm its original finding that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize the Union as majority representative of the employees, and further finds that a bargaining order is necessary to effectuate the purposes and policies of the Act in these cases. The record shows that in the period immediately preceding the election. Respondent, through its president. Bernat, violated Section 8(a)(1) and interfered with employee freedom of choice in the impending election by (1) promising increases in piece rates and wages; (2) by stating, "if the Union did not win the election the employees would never want a union again because they would be treated so good they would not want one"; (3) by statements that employees would be taken care of and improvements would be made; and (4) by distributing antiunion tags, through supervisors, under conditions which coerced employees to openly declare themselves for or against the Union. The Union. though possessing valid authorization cards from a majority of the employees, failed to receive a majority in the election, which was subsequently set aside on the basis of Respondent's unlawful conduct. On the day of the election, but after the ballots were tallied, Bernat addressed the employees, and while hailing the vote as a great victory, stated "All of the time rates will be increased within the next three weeks and the piece rate structure will be reviewed and changed within the next six weeks." During the ensuing weeks, Respondent, in the face of the Board's investigation of the Union's objections to the election, granted these and other benefits despite the unresolved status of the question concerning representation. Thereafter, and while the charges filed in Case lI-CA-3067 were pending, Respondent violated Section 8(a)(3) by discharging or laying off six employees because of their union activities. Insofar as relevant here, the Supreme Court in Gissel, supra, approved the Board's authority to issue a bargaining order to redress unfair labor practices "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 [unfair labor practices]."' Additionally, in circumstances where the unlawful conduct is less flagrant in nature, the court held that the Board may find an 8(a)(5) violation and issue a bargaining order where "the possibility of erasing the effects of [the] past practices and ensuring a fair election (or a fair rerun) by the use of traditional remedies . . . is slight and . . . [therefore] employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order .... '170 NLRB No 39. 'International Ladies' Garment Workers' Union . AFL-CIO ( Garland ) v N L.R B , 414 F 2d Inc South Carolina Knittin Mills of Beaufort . . . g 1214 (CADC) 'Id. p 614 '395 U S. 575 'Id p 614 178 NLRB No. 62 GARLAND KNITTING MILLS OF BEAUFORT, S.C., INC In our opinion, a bargaining order is warranted on the facts of this case under either of the above standards. The unfair labor practices committed by Respondent included a half-dozen discriminatory discharges or layoffs of employees, in addition to serious 8(a)(1) violations. These unfair labor practices tended to destroy the Union's majority and in the aggregate were so flagrant and coercive in character as to require, even in the absence of an 8(a)(5) violation. a bargaining order to repair their effect. Moreover, it is unlikely that the lingering coercive effect of these unfair labor practices could be neutralized by conventional remedies so as to ensure a fair rerun election. We therefore find that 397 the employee sentiment expressed through the cards is a more reliable measure of employee desires and that statutory policies are better effectuated by issuing a bargaining order than directing a rerun election. Accordingly, we shall reaffirm the unfair labor practice findings and the remedy provided therefor in the original Decision and Order herein. SUPPLEMENTAL ORDER In view of the foregoing, and on the basis of the record as a whole, the National Labor Relations Board reaffirms its Order of March 28, 1968. in this proceeding.