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

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 362 (N.L.R.B. 1970)

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