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

National Labor Relations Board - Board Decisions

Oct 17, 1972

199 N.L.R.B. 794 (N.L.R.B. 1972)

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.