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

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gibson Products Company of Washington Parish, La., Inc. and Retail Clerks Union, Local No. 390 of Boga- lusa, Louisiana, affiliated with Retail Clerks Interna- tional Association, AFL-CIO. Case 15-CA-3244 October 17, 1972 SECOND SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On September 24, 1968, the National Labor Re- lations Board issued a Decision and Order in the above-entitled proceeding' in which it found that Re- spondent had violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, and that a bargaining order was necessary to remedy the 8(a)(1) violations found. Accordingly, the Board or- dered Respondent to take specific action to remedy the unfair labor practices, including bargaining with the Union. Subsequently, the Supreme Court of the United States issued its Gissel decision 2 wherein it laid down certain guidelines relating to the finding of violations of Section 8(a)(5) of the Act and to the issuance of bargaining orders based on such violations and on violations of other sections of the Act. Thereafter, pursuant to previously filed petitions for review, the United States Court of Appeals for the Fifth Circuit issued its opinion in the instant proceeding 3 wherein it found, in substance, that the Board had not applied the Gissel guidelines, and remanded the instant pro- ceeding for consideration in the light of that Court's decision in N.L.R.B. v. American Cable Systems, Inc., 414 F.2d 661, decided subsequent to Gissel. Specifical- ly the remand required findings and conclusions as to whether the uncontested unfair labor practices found "so contaminated the electoral atmosphere that `the possibility of erasing' their effects and `ensuring a fair election' was `slight' ... [and whether] `employee sen- timent' could `best be protected' in the case by a bar- gaining order." The Board thereupon notified the parties that it would reconsider its 8(a)(5) finding and bargaining order, invited and received statements of position from the parties, and subsequently issued a Supple- mental Decision and Order 4 wherein the Board ap- plied the Gissel guidelines in accordance with the Fifth Circuit's remand, again found that a bargaining order is an appropriate remedy herein, and affirmed its initial Decision and Order. In again reaching the i 172 NLRB No. 243. 2 N L R B v. Gissel Packing Co., Inc, 395 U S. 575 3421 F.2d 156. 4 185 NLRB No. 74. conclusion that a bargaining order is warranted here- in, the Board carefully considered, and respectfully disagreed with, the position of the Fifth Circuit as set forth in its second American Cable decision,5 decided subsequent to the remand in this proceeding, wherein it 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 pro- duce a fair election ...." The Board stated that, in its view, " ... the situation must be appraised as of the time of the commission of the unfair labor prac- tices, and not currently." However, despite its expressed view, the Board reopened and remanded this proceeding for further hearing before a Trial Examiner in order to obtain a more complete record upon which to base an evalua- tion of all the relevant issues. On November 10, 1971, Administrative Law* Judge Frederick U. Reel issued the attached Supple- mental Decision finding, basically, that while Respondent's 1968 violations do not have any inde- pendent meaningful continued and present existence, and although present conditions are sufficiently anti- septic for an election, a bargaining order nevertheless is an appropriate remedy and necessary to restore the status quo ante because Respondent's 1968 conduct, which tended to destroy the Union's majority status, was of such character as to then preclude a fair elec- tion, and because the effect of that conduct precluded the employees, including those newly hired, from hav- ing the union representation to which they were and are entitled. In support of his ultimate conclusion, the Administrative Law Judge also noted, in substance, that the instant proceeding is more a analogous to Sinclair, one of the four cases involved in Gissel, than to American Cable; that, while the Supreme Court remanded three of the four cases in Gissel for certain findings, it did not remand Sinclair but, instead, en- forced the bargaining order in that case; and that, although Gissel issued prior to the Administrative Law Judge's initial Decision herein, his findings and conclusions in that Decision not only were sufficient to meet the requirements of Gissel, but also were couched in Sinclair-type language and correctly reached a Supreme Court-approved Sinclair result. Subsequently, the General Counsel filed a brief, Respondent filed exceptions and a supporting brief, and Charging Party filed a brief in answer to Respondent's exceptions and brief. Pursuant to the provisions of Section 3(b) of the 'National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon reconsideration of the entire case in light N L R B v. American Cable Systems, Inc, 427 F.2d 446. *The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 199 NLRB No. 115 GIBSON PRODUCTS COMPANY of all of the standards and guidelines set forth in Gissel, we have concluded that we erroneously failed to state in our previous decision in this proceeding that this case is factually and legally governed by Sinclair. We have not reached this conclusion lightly. In our view, any other course of action would constitute an abdication of our judicial responsibilities which command the exercise of conscientious reappraisal and reevaluation, if need be, of the principles involved in our decisions. A failure to recognize and apply these concepts would offend the public interest, and also would result in a failure to allocate to the imme- diate parties herein their legal rights and obligations. Therefore, pursuant to the requirements of integ- rity of our processes and evaluation, and in a spirit of comity with and full deference to the reviewing court, we find that the instant proceeding falls within the purview of Sinclair,6 and that a bargaining order is the only appropriate remedy for the Respondent's unfair labor practices,' regardless of whether lapse of time or other circumstances might now make a fair election possible. An election here would not remedy the long period during which Respondent's intransigent viola- tions of the Act have denied to its employees the right to bargain collectively. The only remedy in the pre- sent circumstances which will effectuate the policy of the Act is a bargaining order. The applicability of this principle here is manifest by the Supreme Court's pro- nouncement in reaching its Sinclair result, that " . . . a bargaining order is designed as much to remedy past election damage as it is to deter future misconduct,"8 and its substantive adoption of the Board's longstand- ing "policy of issuing a bargaining order, in the ab- sence of a § 8(a)(5) violation or even a bargaining demand, where that was the only available, effective remedy for substantial unfair labor practices."9 Second Supplemental Order Based on the foregoing, and the entire record in this proceeding, the National Labor Relations Board hereby reaffirms its Order issued in this proceeding on September 24, 1968, as contained in 172 NLRB No. 243. 6 N LR.B v. Gissel Packing Company, supra. r In reaching our conclusions herein, we find it unnecessary to rely on, and we do not adopt, the Administrative Law Judge's characterizations of Respondent's attorney s N L.R.B. v. Gusel Packing Company, supra, 612.. 9 N.L R.B. v. Gissel Packing Company, supra, 614. TRIAL EXAMINER'S SUPPLEMENTAL DECISION FREDERICK U. REEL, Trial Examiner: This decision is rendered pursuant to an order of the Board, dated April 7, 795 1971, reopening the record herein and remanding the pro- ceeding for further hearing. Previous steps in this litigation are reported at 172 NLRB No. 243, 421 F.2d 156 (C.A. 5, 1969), and 185 NLRB No. 74. The reopened proceeding was heard at Bogalusa, Louisiana, on July 13 and 14, 1971, and at New Orleans, Louisiana, on August 23, 1971. Upon the entire record I and after due consideration of the briefs filed by General Counsel and by Respondent (herein sometimes called the Company), I make the following: SUPPLEMENTAL FINDINGS of FACT A. Background In January 1968 the Union obtained signed authoriza- tion cards from a majority of the Respondent's employees in an appropriate bargaining unit. Respondent thereupon engaged in a series of unfair labor practices and declined to recognize the Union, insisting on an election. The Union declined to go to an election and called a strike, during the course of which Respondent committed a further unfair labor practice. The facts set forth in the foregoing paragraph were adduced at the first hearing of this case before me on April 23 and 24, 1968. On the night of April 23 (i.e., after the first day of the hearing) the Respondent and the Union engaged in settlement discussions. Respondent apparently believed that it had reached an agreement to settle the case (and end the then current strike) by reinstating the strikers and hold- ing an early election in which all employees (returning strik- ers and replacements who had been hired during the strike) would vote. This proposed settlement, however, never reached fruition. There is some question, developed further infra, as to whether a final agreement was reached between the Company and the Union. In any event, General Counsel declined the proposed settlement on the ground that it would not effectuate the policies of the Act. (I note, in passing, that it apparently did not provide for any posting of notices or for any Board order or court decree restraining violations similar to those Respondent had just committed.) Also, the settlement discussions had never produced defi- nitive agreement on certain issues of eligibility to vote and on inclusion in, or exclusion from, the unit of certain em- ployees. The abortive settlement discussions played no role in the original decision in this case. After the hearing and the filing of briefs, the Trial Examiner issued his Decision, finding that the Respondent had violated Section 8(a)(1) and (5) of the Act and recom- mending the customary cease-and-desist order and an order directing bargaining. With respect to the latter, the Trial Examiner's Decision states: Finally, I note that the Company engaged in acts of interference, restraint, and coercion after the Union obtained its majority status. In the ordinary case I might not be inclined to regard Sudduth's statements to Jacob, Bates, and Seals, and Douglas' inquiry of Graham as sufficiently damaging to warrant the impo- sition of a bargaining order as part of the remedy there- for. Compare Hammond & Irving, 154 NLRB 1071, t Respondent's motion to correct certain typographical errors in the tran- script was unopposed and is hereby granted. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Wausau Steel Co. v. N.L.R.B., 377 F.2d 369 (C.A. 7). But in this case the record establishes that the un- lawful acts had a direct impact on the employees. Jacob was temporarily moved to abandon support of the Un- ion, and Seals realized that as a result of the Company's violations "some of them [the employees] were begin- ning to get upset." Also, after the unlawful threat to withhold favors previously granted, the Company on the next day implemented the threat by stopping the privilege of charging at the pharmacy. In the light of this showing, I would issue a bargaining order to reme- dy the violations of Section 8(a)(1) by restoring the status quo ante, quite apart from the fact that, as noted above, I find the refusal unlawful because the Compa- ny had no good-faith doubt of the majority. The Board affirmed the decision, adopting the find- ings, conclusions, and recommendations of the Trial Exam- iner. It expressly noted that it affirmed "the Trial Examiner's findings ... that a bargaining order is also necessary to remedy the independent 8(a)(1) violations," and it relied on "the Respondent's unlawful course of con- duct both before and after the Respondent acquired knowl- edge of the Union's majority status." Board Member Zagoria noted that he did not "adopt the Trial Examiner's statement that the various 8(a)(1) incidents justify a bar- gaining order because of their demonstrated impact on cer- tain employees,"2 but his separate notation on this issue suggests that the majority adopted the view of the Trial Examiner. Respondent declined to comply with the Board's Order, and the Board instituted enforcement proceedings in the Fifth Circuit .3 Before the instant case was argued orally before the Fifth Circuit, however, the Supreme Court decided N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. Accordingly, the Fifth Circuit decided this case with "the luminous hind- sight" furnished by the Gissel decision. The Fifth Circuit stated (421 F.2d at 157): In the instant case the validity of the union cards and their majority status is unquestioned. Also clear is the existence of certain employer unfair practices. However, the Board made no finding as to whether these violations so contaminated the electoral atmo- sphere that "the possibility of erasing" their effects and "ensuring a fair election" was "slight." Nor did the Board determine whether "employee sentiment" could "best be protected" in this case by a bargaining order. We therefore remand to the Board for more specificity in such findings and conclusions. Enforced except as to the order to bargain collec- tively and remanded as directed herein with regard to that issue. With the utmost humility and deference, I respectfully venture to suggest that the court misread the record when it referred to the absence of findings and determination in 2 Presumably Member Zagora felt that proof of "impact" was immaterial. Cf. the later statement to similar import in a related context in N.L.R B v. Gissel Packing Co., 395 U.S. 575, 608. 3 Up to this point the litigation had progressed at an unusually rapid pace Exactly 8 months elapsed between the signing of the cards and the issuance of the Board's Order, less than 5 months between the commission of the unfair labor practice and the Trial Examiner's Decision . The hearing took place less than 3 months after the first unfair labor practice the above respects. To be sure, lacking the luminous hind- sight of Gissel, the findings were not phrased in the terms the court used. But the findings quoted above expressly state that the 8(a)(1) violations were "sufficiently damaging to warrant the imposition of a bargaining order as part of the remedy therefor," expressly note the direct impact of those violations on the employees, and expressly apply the Wausau Steel doctrine rather than that of Hammond & Irving, Reference to those cases shows that in Hammond the Board declined to find that certain 8(a)(1) violations "must necessarily have had the object of destroying the Union's majority status" and declined to order bargaining based on a card majority, whereas in Wausau the court in enforcing a bargaining order sustained the Board's finding that the 8(a)(1) violations warranted a finding that they had cost the Union its majority. (A dissenting judge would have ordered a new election because he thought the violations at worst "minimal.") The findings in the instant case and the refer- ences to the then existing case law would seem to satisfy the Gissel requirement of findings that the violations so contam- inated the electoral atmosphere that "the possibility of eras- mg" their effects and "ensuring a fair election " was "slight" and that "employee sentiment" could "best be protected" by a bargaining order. Indeed, short of clairvoyance, it would seem difficult to get closer to the Gissel language, which was not uttered until 14 months after these findings were made. Moreover, in Gissel itself, the Supreme Court, while remanding three cases for findings, enforced a fourth (Sinclair), noting (395 U.S. at 615) that in Sinclair- the Board made a finding, left undisturbed by the First Circuit, that the employer's threats of reprisal were so coercive that, even in the absence of a § 8(a)(5) viola- tion, a bargaining order would have been necessary to repair the unlawful effect of those threats. The Board therefore did not have to make the determination called for in the intermediate situation above that 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. [Footnote omitted.] But in the instant case a finding, precisely like that in Sin- clair, was expressly made: "issue a bargaining order to rem- edy the violations of Section 8(a)(1) by restoring the status quo ante"-i.e., "to repair the unlawful effect." In short, the original findings in this case were (1) sufficient to meet the Gissel test and (2) couched in Sinclair-type language which should have made remand unnecessary.4 The Fifth Circuit decision, remanding part of the case, issued December 16, 1969. The Board issued its Supplemen- tal Decision and Order on August 27, 1970 (185 NLRB No. 74). In this decision, the Board reaffirmed its bargaining order stating: In view of the Supreme Court's opinion in Gissel, we do not rely upon our earlier finding that the Respondent violated Section 8(a)(5) by refusing to bargain with the 4 Of course, the Fifth Circuit having spoken, this may now be the "law of the case " But that doctrine does not prevent the Fifth Circuit itself from reexamining its decision to avoid "an obvious injustice" and to correct mani- fest error. See the full scale treatment of this subject at Annot ., 87 ALR 2d 271, 299-317, 326-341. See also IB Moore, Federal Practice 0 404 For Fifth Circuit decisions to this effect see Wm G Roe & Co v Armour & Co, 414 F.2d 862, 867-868 (C.A. 5, 1969), and cases there cited. GIBSON PRODUCTS COMPANY 797 Union in the absence of a good-faith doubt of the Union's majority status. We find, rather, that by refus- ing 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 Sec- tion 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 rem- edies, 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 representa- tion 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. By the time this decision issued, the Fifth Circuit had issued its second decision in N.L.R.B. v. American Cable Systems, Inc., 427 F.2d 446 (C.A. 5). In that decision the court took the Board to task for what the court regarded as a failure to respond properly to its initial remand of that case. The court noted that the Board after the remand "spe- cifically refused to consider evidence offered by the Compa- ny that a complete turnover in employees and the departure of the only management official involved in the unfair labor practices made a free election possible at that time." The court stated that the Board "should have taken the opportu- nity to consider the then existing situation at American Cable to determine whether the electoral atmosphere was still so contaminated that a bargaining order was then jus- tified." The court read Gissel as showing that the Supreme Court "clearly contemplated that no bargaining order should be issued unless at the time the Board issues such an order it finds the electoral atmosphere unlikely to produce a fair election." Noting that the Board on remand "refused to look at the contemporary necessity for such an order, satisfying itself with a jejune regurgitation of the Company's 1965 waywardness," the court held that Gissel did not war- rant "a nunc pro tunc principle, giving the then sins of the Company a now application. It requires contemporanei- ty-a present view, albeit with an historical perspective." The court expressly ruled that an election should be held "if the present conditions are sufficiently antiseptic for an elec- tion," but that a bargaining order should issue "if the employer's 1965 violations ... have a 1970 existence." The Board in its Supplemental Decision in the instant case took note of the Fifth Circuit's views in American Cable and expressly disagreed with that court's interpretation of Gissel. However, apparently because the Board was seeking Supreme Court review of American Cable, it took no steps at that time to return the instant case to the Fifth Circuit. In December 1970 the Supreme Court denied centior- ari in American Cable. The Board thereupon reconsidered its Supplemental Decision in the instant case and in an order issued April 7, 1971, noted that, in view of "the factual similarity" between this case and American Cable, it would reopen the record in this case in conformity with the court's views.5 The Board directed that testimony be taken as to "whether present conditions are sufficiently antiseptic for an election, whether the Employer's 1968 violations of the Act have a continued and present existence, and whether a bargaining order is now appropriate." B. Events Subsequent to the First Hearing 1. Matters urged by General Counsel At the time of the first hearing in this matter the em- ployees were on strike. The strike ended on May 29, 1968, about 1 month after the first hearing in this case and about 2 weeks before the issuance of the Trial Examiner's Deci- sion. At the end of the strike, all the strikers returned to work. At this time Billy West, the Company' s general man- ager, told the returning employees that each would receive a 10-cent-per-hour wage increase, thereby equalizing their wages with those of the nonstrikers and replacements who had worked during the strike. He also told the employees that the Company would abide by the ultimate decision in the then-pending unfair labor practice case and that meanwhile there would be no union talk or activity in the store. Some time thereafter the Company granted addition- al benefits to the employees; namely, additional maternity benefits late in 1968 and (beginning in 1968 or 1969) a paid holiday on their birthday. Dunng the 2 weeks immediately following the end of the strike, Union Organizer Donaldson made several visits to the store during working hours. During these visits Don- aldson spoke to individual employees, and management representatives made notes as to the times and dates of these conversations. The last such visit occurred on June 16, 1968. On this occasion one Billy Wright, a department head, sent a message to Donaldson to come to the back of the store. When Donaldson declined, stating that he had no business in the back of the store, Wright came to him, asked if he had had a whipping lately, and proceeded to walk down the aisle with Donaldson for the purpose (according to Wright's own testimony) of taking Donaldson to the parking lot where Wright intended to fight him. The two men engaged in some shoving in the aisle, and Wright pushed Donaldson into a glass display case which broke. Donaldson then went to the front of the store. At this point Assistant Store Manager Jones appeared on the scene. To quote his testimony: I went on up there and was standing by the Num- ber 2 check out and he stepped over and asked me what Mr. Wright had against him or what Mr. Wright, you know, why did he want to beat him up or want to get him out back. I told him that if he didn't know I was not going to tell him. He ought to have figured it out himself. We said a few more words of which I don't recall. 3 Whatever the "factual similarity" there are substantial legal differences between this case and American Cable To name one of considerable impor- tance, there was no finding in that case that a bargaining order was necessary to remedy the 8(a)(l) violations. "Factually" all these cases are "similar" in that they rest on cards-this was true of the four cases decided in Gissel, as well as of American Cable and this case. "Legally" the Supreme Court en- forced Sinclair while remanding the other three cases before it, and the identical distinction which led the Supreme Court so to differentiate exists between this case and American Cable. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But during the -course of the conversation I told him that I felt like it would be better for the employees and better for everyone concerned if he didn't come back in the store because every time he came in that we had chaos and havoc and there was ill feelings and mixed emotions and all and we just could not carry on normal business with him in there. I asked him if he would not come back and, at that time, he left. Later when the episode was reported to General Manager West, he told Wright that the Company did not want that kind of conduct and that Wright would be in "real trouble" if it was repeated. Some weeks later Wright was promoted to assistant manager at another store. Donaldson never reentered the Bogalusa store. In his brief, General Counsel relies on the grant of benefits, on the prohibition of union talk, on the Don- aldson-Wright episode, and on three additional items in- volving individual employees, to which we now turn. Former employee Mamie Drummond testified that when she applied for a job in the fall of 1968 Jones, in the course of interviewing her, asked her how she felt about the Union. She replied that she was in favor of it. Jones then told her there were no openings and that he would call her. Drummond's sister was hired shortly thereafter, but Drum- mond was not hired until the fall of 1969, and she was laid off shortly thereafter. Similarly, employee Jean Boyte testi- fied that, when she was being interviewed for employment late in 1970, the new assistant manager, Don Holt, said to her: "You know we're not union. How do you feel about the union?" Boyte said she was not concerned and was thereaft- er hired. Finally, employee Marguerite Scott testified that about 6 months after the strike ended (i.e., late in 1968) Assistant Manager Jones, in the course of discussing some matter with her over which she became upset, told her "there was no need for [her] to go call the home office and talk to [union organizer] Bob Donaldson because ... Mr. Don- aldson would not be back in the store." 2. Matters urged by Respondent Respondent addressed itself to the several matters urged by General Counsel and also adduced evidence for the purpose of establishing that a fair election could be held at this time. Turning first to the matter of West's poststrike speech and the benefits then and subsequently granted, Respon- dent urged that West was merely assuring the returning strikers of equal treatment with the other employees, that the raise at that time reflected a raise given nonstrikers during the strike, that the insurance benefits grew out of negotiations between Respondent and its insurance carriers which resulted in a more favorable policy with no increased cost to Respondent, and that the birthday holiday was dic- tated by the nationwide policy of the Gibson organization. Although not directly meeting the contention that West promulgated an unlawful no-solicitation rule, Respondent argued that the prounion employees continued to be active in its support and also emphasized that organized labor is well entrenched in the entire community. With respect to the altercation between Donaldson and Wright, Respondent argued that Wright was not a supervi- sor, that Donaldson's presence in the store was disruptive, and he was there to visit with employees rather than as a customer, and that Billy West later reprimanded Wright, apologized to Donaldson, and told Donaldson he was free to enter the store. The record as to West's statements to Donaldson falls somewhat short of the claims Respondent makes for it. Neither West nor Donaldson was able to testi- fy positively that they had or had not discussed the episode with each other. As to the alleged interrogation of Drummond and Boyte, Respondent introduced the testimony of Jones and Holt which in effect denied that the interrogations occurred. Similarly, Jones denied making the remark attributed to him by Scott. Affirmatively, Respondent emphasized that in Feb- ruary 1970 it posted the notice required by the Board and the court, assuring the employees of their rights under the Act, and kept this notice posted for over a year. Respondent also showed a turnover among the employees; of the 34 employees in the bargaining unit at the time of the original proceeding, only 9 or TO remained at the time of the second hearing. Further, insofar as General Counsel's evidence concerned actions or alleged actions of Jones and Wright, they are no longer employed at the store in question.6 3. Concluding findings with respect to events subsequent to first hearing General Counsel did not allege that the posthearing conduct violated Section 8(a)(1) of the Act, but he intro- duced evidence tending to prove such violations. Of course, as the Trial Examiner stated early in the reopened hearing, while the terms of the remand do not require that General Counsel establish new violations, he is within the frame- work of the remand in attempting to do so. The record is clear, however, that General Counsel seeks no relief for any new violations of Section 8(a)(1) except insofar as the con- duct bears on whether a bargaining order should be entered. Turning first to the Donaldson-Wright episode, I find that Wright was the aggressor in the matter. There is no doubt that he wanted to engage in a fist fight with Don- aldson, whom Wright outweighed by a considerable margin, and that Wright came into the store area for that purpose. Wright was at the time a "department head" but not a supervisor. He had been a management trainee at another store and came to Bogalusa as a "replacement" during the strike. Shortly after the encounter, Wright was promoted to a supervisory position at another store. Under all the cir- cumstances, the employees could fairly regard Wright's conduct as a reflection of management,s attitude. Cf. M. N. Landau Stores, Inc., 168 NLRB 273, 285 (Thomas-Gou- 6 Respondent also introduced into evidence an antiumon petition, dated May 6, 1971, apparently signed by a majority of the employees . General Counsel introduced evidence that the supporters of the petition resorted to threats or predictions of discharge or shutdowns in the course of obtaining signatures and that management gave antiumon employees privileges not ordinarily available. In their respective briefs neither party attached great weight to these matters, Respondent's sole reference to the petition is in a footnote to the "Conclusions " Manifestly, if a bargaining order is appropn- ate here, it is not because of the existing sentiment of the employees GIBSON PRODUCTS COMPANY 799 nara), enfd. in this respect 407 F.2d 199 (C.A. 6, 1969). Assistant Manager Jones closed the episode by telling Don- aldson to keep out of the store in the future . This episode, witnessed by a number of employees, militated against the holding of a fair election at that time. Likewise militating against a fair election at that time was West's action in giving all employees (first the nonstrik- ers and then the returning strikers) a 10-cent-per-hour wage increase. Such action in the course of a representation cam- paign interferes with employee freedom of choice. Cf. N.L.R B. v. Exchange Parts Co., 375 U.S. 405. I do not find, however, that West in his speech to the returning strikers imposed any illegal prohibition on future union activity. His comments were intended to restore harmony in the store while the litigation was pending, and the union supporters have not been interfered with in their continued efforts in the Union's behalf. Although the matters are necessarily not free of doubt, I am inclined to credit Respondent 's denials of the alleged interrogations of Drummond and Boyte and as to Jones' alleged comment to Scott. I should also note that both the Drummond and Scott episodes allegedly occurred in 1968 and involved Assistant Manager Jones , who is no longer at the store. As to Holt's alleged "interrogation" of Boyte, it shold also be noted that, after Boyte was hired another employee threatened her with loss of her job if she did not sign the antiunion petition, and (according to both Boyte and Holt) Holt then came to Boyte to reassure her that her job did not in any way depend on whether or not she signed the petition. Finally, I accept Respondent's representations that the insurance and holiday benefits which become effective after the first hearing are unrelated in cause and in time to the organizing activity. Cf. T. L. Lay Packing Co, 152 NLRB 342. In summary of the events occurring since the first hear- ing, we can therefore fairly note the following events: 1. Respondent granted a wage increase during the strike and gave the same increase to the returning strikers. 2. Respondent shortly after the strike directed the un- ion organizer to stay out of the store. There is, at the most, equivocal testimony that it later rescinded this order. 3. Some of the employees supporting the Union never- theless continued to urge other employees to support it. 4. The Company in February 1970 posted a notice assuring employees of their rights. 5. Of the employees and supervisory personnel in- volved in the 1968 violations, only 9 or 10 of the original 34 employees, plus the store manager (Sudduth), are still work- ing at the store. C. The Questions Specifically Remanded 1. Whether the 1968 violations have a continued and present existence In 1968, as shown by the findings , approved by the Board and the court, Respondent violated the Act in the following respects: a. Douglas' inquiry of Graham as to whether she had attended a union meeting (to which she falsely replied that she, had not), and his further inquiry of her as to what the employees hoped to gain by organizing. b. Sudduth's inquiry of Jacob as to whether she had attended any meetings, and his adding that he knew two had been held, which under the circum- stances conveyed the impression of surveillance. c. Sudduth's further inquiry of Jacob as to whether she could tell him who had been at the meetings. d. Sudduth's statement to Jacob that he intended to "get to the bottom of this" if he had to "question every employee in this store." e. Sudduth's statement to Bates and Seals that he would grant no more special favors, which under the circumstances implied the withdrawal of existing bene- fits and a change of policy in reprisal for the union activity. f. The announcement that employees would no longer be permitted to charge purchases at the pharma- cy. The timing of this announcement (1 day afterSud- duth announced an end of special favors, and 3 days after the union drive began), warrants the inference that it was in response to the union movement. The Company brought forward no testimony to show that such a change in policy had been considered before the Union appeared on the scene. g. West's statement to Seals that he would sign a contract with them if they would give up the Union. This constituted ... a promise of benefit for the pur- pose of inducing them to abandon the Union. At the time these violations were committed they had a serious impact on the employees. There was direct cred- ited testimony in the first hearing that as a result of these actions "some of [the employees] were beginning to get upset," and Jacob considered getting her card back and feared she might lose her job. The question now posed, however, is whether those 1968 violations "have a continued and present existence." There is no direct evidence that they do, and none that they do not. Also, we have been admon- ished that we are dealing with "a subtle thing" which "may call for a high degree of introspective perception." N.L.R.B. v. Donnelly Garment Co., 330 U.S. 219, 231. Although neces- sarily assailed with doubt in an area this nebulous, I reach the conclusion that the 1968 violations do not have any meaningful "continued and present existence" in the sense that they independently survive as critical factors "upset- ting" the employees. I do find, as indicated below, that their "effect" continues to survive. General Counsel in his brief referred to only two of the 1968 violations as having continued vitality. One of these, the right to charge items at the pharmacy, is the subject of conflicting testimony. Oddly enough, it was Renea Voth, General Counsel's own witness, a prounion employee, who testified that the employees again have the right to charge at the pharmacy, whereas it was Jerry West, a company officer, whose somewhat oblique testimony suggests that the privilege was not restored. Under all the circumstances, including the fact that only 9 or 10 of the present employees ever lost the privilege (whether temporarily or perma- nently), I find that, while the matter was important in 1968 as demonstrating the Company's determination to with- draw benefits and change policies in reprisal for union ac- tivity, it was not an important matter in 1971. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel also points to the testimony of Mil- dred Jacob as showing the continuing impact of the 1968 violations. Jacob testified in the second hearing as a witness for the Company and expressed strong antiunion senti- ments. She also helped circulate an antiunion petition, in the course of which she asked one employee who had declined to sign the petition , "Didn't [she] care if the store closed?" I find that Jacob's antipathy to the Union did not arise out of Sudduth's unlawful statements to her in 1968. Jacob's testimony shows that she resented the Union because, to quote her testimony: I got no advantages. I don't think it helped me. It didn't help my children, and it didn't help my husband, and it didn't help my store, and it didn't help my town. It certainly hasn't helped me. Of course, at least one reason why the Union was no "help" to Jacob was that, even though it obtained a majority in authorization cards, Respondent refused to recognize it and engaged in unfair labor practices which were intended to destroy its majority and which at the time made a fair election impossible. No one can say what the attitude of Jacob or the other employees who signed the antiunion petition would have been in 1971 had the Union been recog- nized as bargaining agent in 1968 or had a fair election been possible at the time . Cf. N.L.RB. v. Franks Bros. Co., 137 F.2d 989, 994-995 (C.A. 1, 1943), affd. 321 U.S. 702. In that sense, and in that sense only, I find that the 1968 violations have a continuing "effect" but not a continuing "existence." 2. Whether present conditions are sufficiently antiseptic for an election of all parties. But I have no interest in having any terms or conditions of settlement, or any settlement efforts reflected on the record, because if the record is subse- quently reviewed at all, it will be because there was no settlement. There is no point in having the record re- flect any settlement discussions. Now if you have something else you want to put on the record, Mr. Lang? MR LANG- I would like to ask for a moment of recess, while I prepare something. s s s s 11 MR LANG: I would like to offer in evidence at this time Respondent's Exhibit 7, which is a statement which I have prepared of settlement efforts on the part of Respondent, in association with the Charging Party. (The document above referred to was marked Respondent's Exhibit No. 7 for identification.) TRIAL EXAMINER The proffered exhibit may go in the rejected exhibit file. (The document previously marked Respondent's Exhibit No. 7 for identification, was rejected.) TRIAL EXAMINER According to the statement I made just before the recess, I would consider settlement ef- forts praiseworthy, and not to be abandoned, but not any part of the record in this case, as far as the decision in this case to be reached. As the above colloquy shows, I did not reject the exhib- it because I had any doubts at the time as to the veracity or candor of Respondent's counsel.? The testimony at the In contending that an election should now be ordered, Respondent argues that an agreement to hold an election was reached in 1968 and that the passage of time and the therapeutic effect of the notice posted by Respondent in 1970 are sufficient to cure any taint which might have in- hered in an earlier election. a. The alleged agreement As described earlier in this Decision, some settlement discussions took place during the first hearing. On the sec- ond day of that hearing counsel for Respondent attempted to introduce evidence of the settlement discussions. At that time the following colloquy occurred: MR. LANG I would like to have the record reflect, Your Honor, that in discussions off the record at times in between the recess of yesterday and the opening of the record today, that there were efforts made- MR JOHNSTON I am going to object to any statement being put on the record concerning- TRIAL EXAMINER- I'm not interested in having the record reflect anything about any settlement discus- sions. If you gentlemen are able to settle the case, this I think would be a great boon to all concerned. If you are not able to settle the case, we will continue it. I presume that all parties before the case started, during the case, anti after the hearing is concluded, for that matter, will make bona fide efforts to settle the case, because I think a settlement is in the best interest 7 I regret to say that this condition no longer prevails, and I now have misgivings as to counsel's representations both to me and to the Court of Appeals. At the opening of the second hearing General Counsel examined Donaldson solely with respect to his altercation with Wright. When asked to proceed with cross-examination, Respondent's counsel stated in part: What I have heard here is completely new to me. I have never heard anything like it before regarding these proceedings, I don't have any account of any events such as this. I want the record to clearly show that as I mentioned before there was no knowledge of this line of testimony or any of the incidents that were recited by this witness. This is the first time the Respondent has learned of this matter. The next day counsel for Respondent presented two affidavits concern- mg the matter which had been in Respondent's possession since the day of the incident in question. At that time, Respondent's counsel confessed: "We were aware of some of these incidents." Shortly thereafter, in successfully pressing for a continuance, Respondent's counsel stated: AA LANG That's at least one individual I want to talk to we don't know where he is No one knows where he is, and we've got to try to find him. We know what state he's in, and that's as far as my knowledge goes at this time. raw. ncasm+ea Which one is that? sm. i. o Mr. Jones TRIM, area He's not working for Gibson's? su. LANG No. When the hearing reopened, counsel for Respondent called Jones as a wit- ness Asked where he was currently employed, Jones replied: "Gibson Dis- count Center in Middleton, Tennessee " In light of this record I have no confidence in counsel's statements to me. I also now view with skepticism the accuracy of his statements in Exh. 7 and of his testimony in the second hearing. The question whether he also GIBSON PRODUCTS COMPANY 801 second hearing suggests that at the very least, counsel's hastily prepared memorandum was an oversimplification of what had occurred. I credit the testimony of Donaldson as to the abortive negotiations. It appears that there was no agreement reached on several critical matters, including the question of who would vote in the proposed election. More- over, as the business had suffered during the strike, there would not be economic justification for reemploying all strikers and also retaining all the replacements. Finally, no provision was made for expunging the effects of the recently committed unfair labor practices, a matter of concern not only to the private parties but to the Board acting in the public interest. Respondent's counsel filed no exception to the ruling rejecting Exhibit 7 and did not in any way call the Board's attention to that matter. Under settled law, the question of the settlement was thus not before the Board and therefore could not properly be raised before the Fifth Circuit. Sec- tion 10(e) of the Act; N.L.R.B. v. Cheney California Lumber Co., 327 U.S. 385, 387-389, and cases there cited. Moreover, Respondent's counsel in the briefs filed with the Fifth Cir- cuit gave no indication that the settlement issue was in any way involved. Yet, according to his representations to me, Respondent's counsel did press the matter orally before the Court. Counsel, in arguing that "an agreement was reached to have an election," stated in part: I think it would not be unfair to say that the Cir- cuit was rather deplored at the very least at the action of the Board in their failure to explain this matter, in failing to do anything with it other than give it a sleight of hand, which is exactly what was done. One of the Judges, if I can refer to what he said, he said if this is what is expertise, then the Labor Board better go back to studying all over again. Counsel for Respondent, well aware that the settlement matter had never been before the Board at all, appears to have misled the court into thinking that it was and indeed may have succeeded in getting the case remanded (rather than enforced as required by the Supreme Court's ruling in the Sinclair portion of the Gissel decision) because of what I now find, after seeing the witnesses and reviewing the record, were inaccurate or incomplete statements in a reject- ed exhibit not properly before the court in the first place.8 The term "sleight of hand" may be appropriate in this case, even if not applicable to the Board. In any event, so far as the present posture of the case is concerned, the holding of abortive settlement discussions in 1968 in which the possibility of an election was discussed sheds little light on whether conditions are now "sufficiently antiseptic for an election." misled the court of appeals is discussed infra. 8 The basic wisdom of the Section 10(e)-Cheney California rile is exemph- fied here. Had I not excluded Exh. 7 (a manifestly proper ruling to which no exception was taken), General Counsel and Charging Party could at that time have introduced evidence correcting the misimpression created by Exh 7. 9It is, of course, possible that counsel for Respondent has some justifica- tion for having pressed the settlement matter in court wihout having pre- served it before the Board. All I can say at this time is that neither the exceptions nor the briefs before the court refer to it, and counsel, notwith- standing my pointed reference to those facts at the remand hearing and my suggestion at that time that he look into those questions further, failed to advert to the matter in his brief. b. The effect of the notice As previously indicated, I find that a fair election could not have been held at the time of the first hearing . For that matter, a fair election was impossible for months thereafter. Early in 1970, however (acting under the compulsion of the Fifth Circuit's decree), Respondent posted a notice stating that it would stop its violations of the Act and would respect its employees' rights under the Act. No further violations of the Act occurred after this notice was posted. If we assume for the moment that the only issue in the case has been whether Respondent committed those viola- tions, I think it reasonably clear that the Board would view the air as sufficiently cleared by the notice -posting to permit a representation case to proceed . Under these circum- stances, noting the employee turnover, and aware that time heals all wounds, I can perceive no basis for finding that conditions are not now sufficiently antiseptic for an elec- tion-except, of course, for the lingering "effect," but not "existence," of the 1968 conduct ; that is, that the employees (including those newly hired) were entitled to union repre- sentation at that time and have never had it. Franks Bros., supra, 137 F.2d at 994-995. 3. Whether a bargaining order is now appropriate Respondent emphasizes the rights of the present em- ployees. This contention derives some lack of persuasive- ness when one considers the background of the case. It was not concern over employee rights that led Respondent to inquire whether its employees had been attending union meetings and to seek to ascertain which of them had done so. It was not concern over employee rights that led Respon- dent to threaten to "get to the bottom of this" if it had to "question every employee in the store." It was not concern over employee rights that led Respondent to threaten to withdraw, and later actually to withdraw, privileges because the employees were turning toward a union. Finally, and perhaps most important, it was not concern over employee rights that led Respondent to offer a contract to its employ- ees, conditioned on their renouncing the Union. If this "re- gurgitation" of Respondent's 1968 acts be called "jejune," what word appropriately characterizes Respondent's sud- den present professed concern for its employees' rights? The present complement of employees includes only 6 who had signed union cards and only 9 or 10 who were employed at the time of the unfair labor practices. This is a consideration militating against issuance of a bargaining order, but it is not controlling. In numerous situations the Board and the courts have ordered an employer to bargain with a union which, at the time the order issued, no longer represented a majority of the employees. One need go no further back than the Sinclair aspect of Gissel to find a Supreme Court directive to that effect, for in Sinclair the union had lost the election. 395 U.S. at 589. Respondent further contends that under the Fifth Circuit's decision in American Cable a bargaining order is inappropriate because a fair election could now be held. It is true that in that case the Fifth Circuit directed that con- trolling weight be given the "then existing situation." With all respect I suggest that the record and briefs in the case 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at bar demonstrate the unworkability of the American Cable rule-quite apart from the fact, already pointed out, that this case is more analogous to Sinclair than to Cable. There is, of course, an immediate appeal to the idea that the Board should take a new look at later developments and not decide present rights on stale records. In actual practice, however, the process is not so simple as this ap- proach suggests. In the instant case, for example, the record now shows facts gleaned from a hearing in July and August 1971. By the time this decision issues, it will be late October or November. Perhaps the Board may issue its decision in the first half of 1972. Perhaps the matter could-be heard by the court late in 1973, more likely 1974. When is the evi- dence to be considered sufficiently close in point of time to the order. As to this knotty problem, I find considerable assistance in Respondent's brief to me. Respondent first poses the question (br., p. 8): A question exists of what point in time should be considered critical, or determinative, of the issue of whether a fair election can be held. At the time of the close of this record? Upon the issuance of the Trial Examiner's Decision? At the time a Board Decision issues? Or, should the matter be presented to a Circuit Court, at the time such Court renders its Decision? The question may appear preplexing, but the answer seems already to have been provided. In the second American Cable decision the Fifth Circuit was very explicit: We think that on remand the Board should have taken the opportunity to consider the then existing situation at American Cable to determine whether the electoral atmosphere was still so contaminated that a bargaining order was justified. 427 F.2d at 448 (emphasis added). Respondent's brief then refers to the "true purposes" of the Act which Respondent has now realized is protection of employee rights and then concludes (br., p.10): At this juncture of the case, we submit that the Trial Examiner should consider the critical time to be the date his Decision issues. We are cognizant of the fact that the Fifth Circuit has directed that the critical time be "at the time the Board issues such an order" (427 F.2d at 448), but such an act by the Trial Examin- er, at this stage of the proceeding, would require the use of a crystal ball which does not have the ring of precise- ness we would hope for. However, should either party take exceptions to the Trial Examiner's Decision, at that point the clear mandate of the Fifth Circuit should be implemented, and any order of the Board must take account of whatever factors are present at the, time such order issues . The question of what time factor should be applied if this case is again presented to the Fifth Circuit is not presently before us. Thus Respondent even now envisages still a further inquiry into the facts at the time the Board issues its next order in this case, but that inquiry in turn would lead to further findings by a trial examiner, further review by the Board, and so on, ad infinitum, To the Respondent this may be protection of employee rights, to some it may be "con- temporaneity ... albeit with a historical perspective," but to me it makes a "merry-go-round" of the Act. Respondent states in its brief that the American Cable case "does not stand alone ... in holding that contempo- raneity of view is necessary . . . " But the two cases cited by Respondent do not support American Cable, or at any rate would not apply it here. In N.L.R.B. v. Miller Trucking Services, Inc., 445 F.2d 927 (C.A. 10, 1971), the court de- clined to enforce a bargaining order because "the ownership and management of the Company has changed." In General Steel Products, Inc., v. N.L.RB., 77 LRRM 2801 (C.A. 4, 1971), Judge Winter expressly rejected American Cable, and Judge Haynsworth, in a concurring opinion, rested his deci- sion to remand rather than enforce the bargaining order on the following facts: The employer offered to prove a change of ownership of the plant and the resultant departure from the scene of the former president and all other officials and su- pervisors who had been involved in the unfair labor practices. The employer also offered to prove that the new management had a history of peaceful and amica- ble relations with unions. In the instant case, of course, the principal perpetrators of the 1968 unfair labor practices (Sudduth and West) are still.in their original managerial positions. Hence the cases cited by Respondent as supporting American Cable reveal that those courts would not apply American Cable here. For decisions expressly rejecting American Cable, see New Alas- ka Development Corp. v. N.L.R.B., 441 F.2d 491, 493 (C.A. 7, 1971); N.L.R.B. v. Kostel Corp., 440 F.2d 347, 353 (C.A. 7, 1971); N.L.R.B. v. Henry Colder Co., 77 LRRM 3153 (C.A. 7, 1971). For decisions impliedly rejecting American Cable, see G.P.D. Inc. v. N.L.R.B., 430 F.2d 963 (C.A. 6, 1970), with the dissent relying on American Cable; N.L.R.B. v. Lou De Young's Market Basket, Inc., 430 F.2d 912 (C.A. 6, 1970). In any event it bears repeating here that it was the Board, not the Fifth Circuit, which compared this case to American Cable, overlooking that this case is more analo- gous to Sinclair. It was, to be sure, the Fifth Circuit which originally remanded the case, as to which see the discussion of the "law of the case" in footnote 4, supra. If the bargaining order in this case had been observed in 1968 or enforced in 1969 or 1970 (and a fair election was not possible until months after the notice-posting of Feb- ruary 1970), the parties could long since have enjoyed both bargaining and a fair election. Assuming that a bargaining order now issues, it is probable, as Respondent's counsel indicated on the record, that the case will be carried back to the Fifth Circuit. At best, it will be 1973, probably 1974, before that court decides the case. If it enforces the order, the company presumably will then start bargaining, but it will be 6 years after the original directive to do so. No doubt Respondent will feel the 6 years were well and profitably spent 10 in its effort to vindicate employee rights, but will the public interest have been served? Moreover, it must be re- membered that this delay would have occurred even if the findings for which the court and the Board remanded the case were more unfavorable to Respondent than those I have made here." That is to say, when the Fifth Circuit in 10 In this connection, it may be noted that Respondent itself adduced testimony, and states in its brief (br, p 29), that Respondent's competitors in the same town were operating under contracts with the Union 11 To some extent the delay is attributable to the Board which waited from GIBSON PRODUCTS COMPANY 803 December 1969 remanded the case (at which time a fair election could not have been held), it was at the very least conceivable that a prompt hearing early in 1970 would have resulted in findings adverse to the Company on all points. But it would have been 1972, at the earliest, before the case would have been again decided by the Fifth Circuit. Thus, Respondent (under this hypothesis a repeated malefactor) would have enjoyed a 4 year respite from fulfillment of its bargaining obligation, all in the name of "contemporanei- ty." The possibility of such a result demonstrates that the procedure is abhorrent to the policies of the Act. In my judgment, the determination whether a bargain- ing order should issue based on cards because the employer destroyed the chance of a fair election must be made on the original record.12 Any other result necessarily defeats the December 16, 1969 (the time of the court's decision ), to April 7, 1971, to issue the remand The interim penod saw an abortive decision in this case , and the wait for the certiorari ruling in Cable. But to reduce the time lag from 6 years to 4 would not materially change the considerations operative here. 12 In this case, this original record was highly "contemporaneous" with existing conditions. The hearing was held, Trial Examiner's Decision issued, and the Board Decision issued all within a few months of the unfair labor practices onths of the unfair labor practices purposes of the Act, encourages experimentation with diso- bedience, and rewards wrongdoing. I therefore conclude that a bargaining order should issue in this case for the reasons stated in the original decision: namely, that the Union had a majority, that the Employer engaged in unfair labor practices tending to destroy that majority, and that restoration of the status quo ante required a bargaining order because a fair election was not then possible. CONCLUSIONS OF LAW Effectuation of statutory policy requires the issuance of a bargaining order in this case to restore the status existing prior to the 1968 unfair labor practices which prevented a fair election at that time. RECOMMENDATIONS I recommend that the Board reissue its original bar- gaining order and accompanying notice-posting provisions.