G. P. D., Inc. v. National Labor Relations Board

McCREE, Circuit Judge

(dissenting).

I respectfully dissent. Although in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 , 89 S.Ct. 1918 , 23 L.Ed.2d 547 (1969), the Supreme Court approved the Board’s use of bargaining orders to remedy an employer’s unfair labor practices, the Court nevertheless made it clear that an election was the preferred method for establishing a union’s representative status. The Court recognized the appropriateness of bargaining orders in those situations where “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.” 395 U.S. at 614 , 89 S.Ct. at 1940 (emphasis added).

Under this standard, I believe it was incumbent upon the Board to determine whether, at the time it reaffirmed the bargaining order, the electoral atmosphere was still so contaminated by the company’s earlier unfair labor practices that a fair election was unlikely. The Board contends that it made this determination. However, it did so on the basis of the pre-remand record containing evidence of conditions only as they existed at the time of the hearing conducted by the Trial Examiner in 1966. No new hearing was conducted, nor was any new evidence adduced, following our remand *966 order. 1 As the Fifth Circuit observed in a similar case, “the Board refused to look at the contemporary necessity for [a bargaining] order, satisfying itself with a jejune regurgitation of the Company’s [earlier] waywardness.” N.L.R. B. v. American Cable Systems, Inc., 427 F.2d 446 (5th Cir.1970).

Yet, in the interim between the Board’s original order in this case and its supplemental decision, a nearly complete turnover in the composition of the company’s workforce had occurred. Seven new employees had been hired, and only one employee who had been part of the bargaining unit at the time the company committed its unfair labor practices remained. Moreover, a period of approximately two and one-half years had elapsed.

I cannot understand how the Board could determine at the time of its supplemental decision that the possibility of “ensuring a fair election * * * by the use of traditional remedies, though present, [was] slight,” when it received no evidence concerning contemporary conditions at G.P.D., Inc. Furthermore, I think that only by considering evidence of existing conditions could the Board properly discharge its obligation to promote the Congressionally stated purpose of guaranteeing the rights of employees “to bargain collectively through representatives of their own choosing.” Section 7 of the National Labor Relations Act, as amended, 29 U. S.C. § 157 (emphasis added).

Of course, I do not suggest that merely because there had been a turnover in employees and a substantial amount of time had elapsed since the Board’s original order that the ill effects of the company’s earlier unfair labor practices necessarily had been dissipated. Cf. N.L.R. B. v. Katz, 369 U.S. 736 , 748 n. 16, 82 S.Ct. 1107 , 8 L.Ed.2d 230 (1962). Indeed, evidence adduced at a hearing might have demonstrated that the employee turnover was the result of a company purge of union adherents, in which case a bargaining order would be justified. I dissent only because the Board received no evidence of the presently existing situation and the present possibilities for a fair election. See N.L.R.B. v. American Cable Systems, Inc., supra.

Board orders are entitled to enforcement only if they are “supported by substantial evidence on the record considered as a whole”, Section 10(e) of the National Labor Relations Act, as amended 29 U.S.C. § 160 (e); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951). In light of the Board’s procedure in the present case, there is not only a lack of substantial evidence, there is, for all practical purposes, no evidence to support the bargaining order. Accordingly, I would deny enforcement and again remand this case to the Board for further proceedings.

. In this regard, I observe that I do not, nor apparently did the Board, consider the parties’ “statements of position” evidence.