UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Rehearing & Rehearing En Banc Denied January 13, 1976.
Petition for Review and Application for Enforcement of an Order of the National Labor Relations Board.
Tamm, Robinson and MacKinnon, Circuit Judges. Opinion for the Court filed by Circuit Judge Tamm. Opinion filed by Circuit Judge MacKinnon, concurring in part and dissenting in part.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM
This case concerns the enforceability of a bargaining order issued by the National Labor Relations Board against an employer for pre-election unfair labor practices following his refusal to bargain with a union claiming majority status by virtue of authorization cards. This challenge to a NLRB bargaining order is a familiar one despite the Supreme Court's enforcement of a similar order in NLRB v. Gissel Packing Co., 395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969). We find the facts of this case squarely within the parameters established in Gissel and affirm both the finding of unfair labor practices and the bargaining order.
Jimmy Richard Co., Inc. is a Georgia manufacturer of men's and boys' clothing. In April of 1973, Amalgamated Clothing Workers of America, AFL-CIO made a written demand for recognition based on authorization cards signed by a majority of the employees. The demand was refused four days later in a letter claiming the company's good faith doubt as to the union's majority status. The union then filed an election petition with the NLRB which was approved on May 9. After the union lost the June 1 election by a vote of 50 to 42, it filed objections alleging that during the two-week period preceding the election the employer had promised a change in vacation scheduling and an additional paid holiday if the union lost the election, had threatened plant closing or moving, and had interrogated employees and solicited withdrawal of the union authorizations. *fn1 After a hearing the Administrative Law Judge concluded that the employer's threat to close the plant if the union made unreasonable demands, his manner of notifying selected employees about proposed vacation changes, and his unilateral adoption of the vacation changes following the election violated section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) (1970); the ALJ found no merit, however, in the claims of solicitation and interrogation. He further held that the pre-election 8(a) (1) violations, combined with the refusal to accept the union's continuing demand for recognition, constituted a violation of the section 8(a) (5) duty to bargain. Noting the highly coercive nature of threats of plant closing and the very slight possibility of a fair rerun election, the ALJ recommended that the NLRB issue both a cease and desist order and a bargaining order. The NLRB affirmed and issued the recommended orders. Pursuant to section 10(f) of the National Labor Relations Act, the union has appealed the ALJ's finding that the employer had not solicited withdrawal of the authorizations; the NLRB has sought enforcement of its order under section 10(e). *fn2 In this consolidated appeal, the employer has challenged both the unfair labor practices findings and the issuance of the bargaining order.
We affirm the NLRB's adoption of the ALJ's findings as to 8(a) (1) and 8(a) (5) violations in all respects. The record clearly provides substantial evidence to support the finding that the employer, acting through the plant supervisor, informed selected employees that the vacation changes were "good news" -- by inference, a benefit to be enjoyed along with an additional holiday if the union lost the election. I J.A. at 12-15. The record also supports the ALJ's factual
Having determined that affirmance of the 8(a) (1) and 8(a) (5) violations is required, we need only resolve whether the Board's bargaining order is consistent with both its policy favoring certification elections and the bargaining order guidelines established in NLRB v. Gissel Packing Co. (supra). We believe that it is.
In Gissel, the Supreme Court upheld a bargaining order issued against General Steel Products, Inc. *fn3 The employer had objected to the validity of the cards, but that issue was resolved against him by the trial examiner. Meanwhile the employer had committed unfair labor practices in the pre-election period. In affirming the bargaining order, the Court noted that even "in less extraordinary cases marked by less pervasive practices," the Board's expertise entrusted it, and not the courts, with the responsibility for selecting the appropriate remedy. Id. at 612 n.32. The Court enunciated three prerequisites for issuance of a bargaining order where the unfair labor practices are not "outrageous" or "pervasive": (1) the union at one point had a majority; (2) the employer has committed unfair labor practices; and (3) the possibility of ensuring a fair election by traditional remedies is slight and thus better protected by a bargaining order. *fn4 The extensiveness of past employer practices, while not necessarily determinative, is a consideration for the Board in balancing the preference for the election procedure with the need to assure a fair election. Id. at 614.
In this case, the ALJ found that prior to employee revocation the union had obtained 59 authorizations out of 94 employees. I J.A. at 16. Although 12 of these authorizations were revoked before the April 16 demand for recognition, leaving 47 out of 94, the findings reveal that before the consent election was approved, the union had again obtained a majority, including one card signed on April 14. *fn5 Id. at 17-18.
The employer's unfair labor practices -- coercive threats, promises of benefits, and unilateral changes in employment conditions -- occurred after the consent election was approved on May 9 and after the union had obtained majority status. These practices reasonably account for the union's losing the election by the narrow vote of 50 to 42. See generally NLRB v. Dixisteel Buildings, Inc., 445 F.2d 1260 (8th Cir. 1971). The company argues that the close vote indicates that its unfair labor practices were minor and not sufficient to entitle the union to a bargaining order. It seems more logical to conclude, however, that the union's slight majority could have been eroded, and was in fact destroyed, by the employer's threats of closing or moving the plant. Similarly, the promise of an additional holiday made to a small number of employees could have affected some of the six critical votes. The effect of such less pervasive violations on bare majority situations has been acknowledged in NLRB v. Okla-Inn, 488 F.2d 498, 508 (10th Cir. 1973), rehearing denied (1974) (enforcing bargaining order).
The ALJ stated that a threat of plant closing is one of the most serious obstacles to fair elections and found that "employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order." I J.A. at 20, quoting Gissel (supra). This finding is sufficient to support a bargaining order, as discussed in the Gissel case. It should be noted again that Gissel does not require a finding that no other remedy could suffice, only that the bargaining order better protects employees' expressed union preference.
In Gissel the Court was so reluctant to ignore the Board's expertise in remedying unfair labor practices that it remanded the case to the Board to make the requisite findings that possibly were "implicit in the Board's decisions below to issue bargaining orders." 395 U.S. at 616. As the Court stated emphatically, "We think it clearly inappropriate for the court below to make any contrary findings on its own." Id. In this case, the ALJ has made the requisite findings and the Board has ...