Appendix — J. P. Stevens & Co. v. National Labor Relations Board

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Decision And Order Of: The’ National Labor : <

‘ Relations | Board Pes TS RW e So mags 35a

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» IN THE

“Hnited States Court of Sida

FOR THE FIFT H CIRCUIT

NO. 28,631. oe

= °

J. Pp. STEVENS & C6., INc., Pen esa,

Me: “ Petitionér-Cross-Respondent

* VS.

ives LABOR RELATIONS Boarp,

ae and-——— 4 . Respondent-Cross-Petitioner

. MrpreD G. BAILEY, ET AL, EMPLOYEES,

- and

; TEXTILE Workers UNION OF AMERICA, AFL-CIO,

2s Intervenor

- NO. 20s7

Ne

TEXTILE Wonkens Unton_ OF AMERICA, AFL-CIO,

oa : : . Petitioner

NATIONAL Langa Ret arions Boarb, Sisk

: A.

Petitions 1 Fe or tiple And Cross Application For

Enforcement Of An Order Of The National Labor

on ee ‘Relations Board

(March 22, 1971 )

pais re een

a ntervenors. .

. @

Respondent ee

oa° +

= - Before THORNBERRY, GOLDBERG, and

AINSWORTH, Circuit Judges.

: weer

Jiustena eh Ages mr

- “ € ie XN

eee GOLDBERG, Circuit Judge: J. P. Stevens & Com-

4 -. _* pany; Ine}, unchastened by and impervious to judicial |

| homilies, once again seeks liberation from a National

Labor Relations Board order. Taking the opposite posi- —

! tion, the Textile Workers Union of America; AFL-CIO,

a -entreats us to broaden the Board’s order to combat

Stevens known predisposition to. violate: the law. Re- _

jecting both of these positions, we enforce the Board’s

- order in full.

r _ + The Textile Workers Union (hereinafter referred to

; | as the Union Ybegan its organizing campaign at J. P. -

7 Stevens’ Statesboro, Georgia, plant.in January of 1968.

The Union made intensive efforts to secure authoriza-

‘tion cards from the employees, efforts which met with

. determined resistance on the part of Stevens. On Feb-

-_Yuary-17; the Union wrote Stevens. letter in which it

claimed that it was the representative of the majority

of employees in a production and maintenance unit;

demanded recognition by Stevens-as exclusive repre-

sentative of the employees in that unit; and stressed

that if the Company had any doubts of the majority,

the Union would subrmit the authorization cards in

| its possession to,a disinterested third party. Stevens ~

- "replied to the Union letter by stating that it had in-

hig dications that a majority of ‘its employees did not

want union representation; that it did not wish a

a a it i nk ek a

4 3a Pr

third party to check cards: and that it assumed that

the Union would refer the matter to the Labor Board

‘for disposition. :

_ Thereafter, on February 21, the Union filed an elec-

tion petition with the Board, and: an election was

scheduled for April 22 and 23, 1968. Prior to’ that elec-

gion, on March 18, and again on April 20, the Union

affirmed that its recognitional demand was a continu-

.ing one and invited Stevens to forego the election

proceedings.’ Stevens’ officials declined these. invita-

tions.

On April 22 and 23, 1968, the Board ey t Wee an

election at the Stevens plant. The Union lost by a vote:

of 198 to 110 and filed timely objections. In response

the Board’s Regional Director, noting that “it is un-

Tiecessary to consider thé. [Union’s] remaining ob-

jections,” set the election aside because’ the Company

had failed to submit an employee eligibility list as

mandated by Excelsior.* The Union then filed unfair,

labor cnteies charges before the Board. ' |

1There is some s biatibiidi that the Company disputes the Board’s find-

_ ing that the Union renewed its recognitional demand on these- two.

dates. The Board’s conclusion, sabia is supported by substan- —

tial evidence.

“In Excelsior Underwear, Inc., 156 N. L. R.B. "1236 (1966), the Board

held that an election may be set aside if a company refuses to

provide to a petitioning union an address list of all company em-

ployees. The Supreme Court recently upheld the validity of the

_ Excelsior rule in NLRB v. Wyman-Gordon Co., 1969, 394 U.S.

759, 89 S.Ct. 1426, 22 L.Ed.2d 709.

3It is now clear that even though a union jhas requested a Board elec- :

tion, it is not precluded from obtaining recognition, following its :

election defeat, through: the unfair labor practice procedure.

NLRB v. Gissel Packing Co., 1969, 395, U.S. 575,615 n. 34, 89

S.Ct. 1918, 23 L.Ed.2d 547, citing with — Bernel Foam

Prods. Co., 146 N. i. R.B. 1277 (1964).

@

4a

In its unfair labor practice charges the Union al-:

leged ( 1) that Stevens’ anti-union conduct during

February and March interfered with, restrained, and

coerced company employees in the exercise of their

section 7 rights in violation of section 8(a)(1) of the

National Labor Relations Act; (2) that Stevens’ dis-

charges.of three employees and its refusal to hire an

applicant for employment, were in violation of sec-

tion 8(a)(3) of the Act;* and (3) that Stevens’ re-

fusal to bargain with the Union following the recog-

nitional demands was in bad faith and in violation of

section 8(a)(5) of the Act." These allegations were

<

4Section 8(a) (1), 29 U.S.C.A. § 158 (a) (1), provides:

“Ca) It shall be an unfair labor practice for an employer —

(1) To interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in section 157 of this

title;”

Those section 7 stalin guaranteed by section 8(a) (1) are set

forth in 29 U.S.C:A. § 157:

“Employees shall have the right to self-organization, to form,

join, or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to engage

in other concerted activities for the purpose of collective

bargaining or other mutual aid or protection, and shall also

have the right to refrain from any or all of such activities ex-

cept to the extent that such right may be affected by an agree-

ment requiring membership in a labor organization as a con-

: dition of employment a& authorized in section 8(a) (3).”

5Section 8(a) (3), 29 U.S.C.A. § 158(a) (3), provides in relevant part

as follows:

“(a) Itshall be an unfair labor practice for an employer —

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of employment

to encourage or discourage membership in any labor

organization. .

*Section 8(a). (5), 29 U'S.C.A. § 158 (a) (5), provides:

“(a) Itshall be an unfair labor practice for an employer —

. —€5) to refuse to bargain collectively with the repre-

sentatives of his employees, subject to the provisions of

section 159(a) 6f this title.”

>

5a

denied by Sieve and by 117 sepia of Stevens

who intervened in the proceedings on behalf of the

Company. Following a hearing the Board, largely -

adopting the Trial. Examiner's. conclusions, found

_ that the Company had violated sections 8(a)(1) and

8(a)(3) and ordered the traditional remedies.” More-

over, the. Board found that Stevens’ unfair labor

practices had made a fair rerun election impossible. ;

Relying on. what it found to be a card majority for

‘the Union on March 18, the Board ordered Stevens.

to recognize and bargain with the Union. In No.

28,631 Stevens and. the intervening employees ask

us to set aside this Board order in all respects, while_

in No. 29,037 the Union asks us to compel. the Board

to fashion a more far-reaching remedy. The Board,

‘in both actions, cross petitions for enforcement of its —

_order as entered. |

- TI.

Stevens first claims that ihe record is devoid of sub-

stantial evidence in support of the Board’s finding of

section 8(a)(1) and section 8(a)(3) violations. We

‘The Board ordered Stevens (1) to cease and desist Seeiai: the sca

labor practices found; (2) to make each employee or employee

applicant whole for any loss of earnings resulting from discrimi- . |

natory actions; (3) to offer full and immediate reinstatement to

° the three employees discriminatorily discharged’; (4) to offer em-

ployment to the employee applicant whom Stevens discrimina-

torily refused to hire; (5) to grant the Union access to bulletin

boards for a one-year period; (6) to post appropriate notices, mail

a copy to each employee, and have a company official read’ thé

notice to the employees. These remedies are quite simiJar to those

ordered in an earlier Stevens case, J. P. hsicsbha & Co. v. — 5

: Cir. 1969, 417 F.2d 533.

6a

' . disagree. The record reveals, and the Board found,

that Stevens engaged in an extensive campaign of ©

“classic, albeit crude, unlawful labor practices” to de-

feat the-Union.* During the organizational campaign

waged ‘by the Union in February and. March there

were numerous instances of Company misconduct.

violative of section 8(a)(1). Supervisory personnel

threatened that a Union victory would result in a re-

duction of work, extensive discharges, and even. the

closing:of the plant. See NLRB v. Gissel Packing Co.,

supra, 395 U.S. at 617; Textile Workers Union v. Dar-

lington Mfg.-Co., 1965, 380 U.S. 263, 274 n,20, 85.

— §. Ct. 994, 13.L.Ed.2d 827; NLRB v. Varo, Inc., 5 Cir.

. 1970, 425 F.2d 293; NLRB v. Dowell Div. of Dow

_Chemical Co., 5 Cir. 1969, 420 F.2d 480; NLRB v.

’ Neuhoff Bros. Packers, Inc., 5.Cir: 1967, 375 F.2d Sia

- Company officials engaged in blatant surveillance of .

_ Union activities. See NLRB v. Southland-Paint Co., 5

Cir. 1968, 394 F.2d 717, 719-20: Hendrix Mfg. Co. v:

NLRB, 5 Cir. 1963, 321 F.2d 100.‘Stevens’ supervisors

interrogated employees with regard to Union activi-

- ties under circumstances that tended to be coercive

and intimidating, see NLRB v. Varo, Inc., supra, 425

F.2d at 297-98; Ridgewood Management Co. v. NLRB,

5 Cir. 1969, 410 F.2d 738, cert. denied, 396 U.S. 833,

and made promises of benefits calculated to under-

mine Uniqn strength, see NLRB v, Varo, Inc., supra,

425 F.2d at 388-00 During a critical juncture in the

8This language is borrowed from Chief Judge Brown’s characterization

of Stevens’ conduct in an earlier case, J. P. Stevens & Co. v. NLRB,

supra, 417 F.2d at 536..

7a ¢

- Union campaign the Company granted certain bene-: °

fits which the Board found were designed to destroy

’ Union support. See NLRB v. Exchange Parts Co.,.

1964, 375 U.S. 405, 84 S.Ct. 457,11 L.Ed.2d 435;

Russell-Newman Mfg. Co. v. NLRB, '5 Gir. 1969, 406 —

F.2d 1280, 1283. Finally, when the Union organiz-

ing effort began, the Company breathed new life

into a long dormarit rule prohibiting all solicita-_

-tion at the plarit, even on nonworking time. See

Republic’Aviation Corp. v. NLRB, 1945, 324 U.S. 793, _

.65 S.Ct. 982, 89 L.Ed. 1372; NLRB-v. Varo, Inc, supra,

425 F.2d at 297; NLRB v. K-D Mfg. Co., 5 Cir. 1969,

419 F.2d 467; Ridgewood. Management Co. v. NLRB, |

supra, 410 F.2d at 740. Equally supported by substan-

tial evidence are findings of the Board that Stevens

violated section 8(a)(3) both before and after the

representation election by discriminatorily discharg-

ing employees Connor, Akins, and Cribbs, all active

Union supporters, and by discriminatorily refusing to

hire applicant Bradley; a relative of an active Union

_ - adherent. See Phelps Dodge Corp. v. NLRB, 1941, 313.

- U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271; Reading &

- Bates, Inc. v. NLRB, 5 Cir. 1968, 403 F.2d 9; NLRB v.

Neuhoff Bros. Packers, Inc.,.supra; Sarkes Tarzian,

-Inc. v. NLRB, 7 Cir. 1967, 374 F.2d 734, 738, cert.-de-

nied, 389 U.S. 849; NLRB v. Albritton Eng’r. Corp., 5

Cir. 1965, 340 F.2d 281, cert. denied, 382 US. —

We therefore hold that there is substantial welts

in the record as a whole.to support the Board’s finding

of section 8(a ( 1) and section 8(a)(3°) violations, see

8a

thatversal Camera Corp. v. NLRB, 1951, 340 U.S. 474,

71'S.Ct. 456, 95 L.Ed. 456, and we enforce those por-

tions of its order designed to eradicate the violations

’ through what: have been termed “traditional reme-

dies. in

> oe

~The Board, however, went beyond its traditional

remedies and: ordered Stevens to bargain with the

Union. Recognizing that a rerun election is “the pre-

ferred method for the determination of whether em-

ployees shall be organized collectively,” NLRB v.°

-Gissel Packing Co., supra, 395 U.S. at 603, the Board

here concluded that a bargaining order. was necessary -

to effeciuate the purposes of the Act. |

In determining whether to enforee the Board’s bar-

' gaining order we. must. be guided by the. Supreme

Court’s decision in Gissel. That decision instructs us -

that where an employer has committed unfair labor

practices a bargaining: order, rather than a Board-con-

ducted election, may issue under certain special cir-

cumstances. Balancing the sdmétimes conflicting

goals of deterring employer misbehavior and effectu-

ating employee free choice, the Court found two cir-

cumstances which would justify the bargaining order

_ remedy. First, even where a union has never demon-

strated majority. support in an appropriate unit, the

Board may issue a bargaining order where the em-

ployer unfair labor practices are so “outrageous” and

‘ 9NLRB v. Gissel Packing Co., supra, 395 U.S. at 614; see note 4 supra.

9a : .

‘“pervasive” that their “ ‘coercive. effects cannot. be

eliminated by the application of traditional remedies,

with the result that a fair and reliable election can-

not be had.’” NLRB v. Gissel Packing Co., supra, 395

U.S. at 613-14, quoting NLRB v. S.S. Logan Packing

Co., 4 Cir. 1967, 386 F.2d 562, 570. Second, where

the employer unfair labor practices are less pervasive,

- the Board, to protect employee free choice, must de-:

termine not only that a fair election is improbable but

also “that at one point the union. had a majority.”

_ NLRB v. Gissel Packing Co., supra, 395,U.S..at 614.

Where the unfair labor practices have only a “mini-

mal impact on the election machinery,” a bargaining

order is inappropriate: ‘NLRB v. Gissel ae Co.,

supra, 395 U. S. 615.

10In what has been termed its g#amous footnote eighteen”, Christensen

& Christensen, Gissel Packing and “Good Faith Doubt”: The Ges-

talt of Required Recognition of Unions Under the NLRA, 37 U.

_Chi. L. Rev. 411, 423 (1970), the Supreme Court in Gissel was .

careful to emphasize that it was not deciding * ‘whether a bargain-

ing order is éver appropriate in cases where there is no interfer-

ence with the election process” by independent unfair labor prac-

tices. 395 U.S. at 595, 601 n.18. In short, Gissel simply constituted

an approval of Board-compelled bargaining in instances where

recourse to a ballot is made impossible by employer misconduct.

It did not delineate the precise scope of the duty to. bargain im-

posed by section 8(a) €5), or the limits of the Board’s power to

enforce that duty, through bargaining orders, when an employer

is confronted by an authorization card majority and does not com-

mit independent unfair labor: practices. Christensen & Christen-

. Sen, Supra, at 424; see NLRB v. American Cable Systems, Inc., 5

Cir. 1969, 414 F.2d 661, 668 n.5. The’ logic of the opinion, there. ee

fore, Views the bargaining order in situations such as the instant :

case not as an enforcement of a duty to bargain, but as a winedy

‘for employer coercive practices.

Nevertheless, the Board here has ordered Stevens to bargain not.

only as a remedy for violations of Section 8(a) (1) and section:

8(a) (3) but also as a remedy for a violation of section 8(a) (5)..

' The Board’s aw weer is sanctioned vad Gissel, for the Court there

’

i 3 .

y bs : -. 4 &

é - ; y ”

10a _ |

The Board fourid.in the instant case not only that a

bargaining ‘order was required to combat Stevens’

“extensive and egregious unfair labor practices”, but -

also that reliance on the authorization cards would

better effectuate employee free choice than a rerun

election" in the coercive atmosphere which obtained

at the Stevens plant: i \ :

“The record. reveals that upon learning of the

presence of the Union, Respondent resorted to a

campaign of extensive and egregious unfair labor

‘practices in it®efforts to thwart the Union’s organi-

2 Sie f

approved current Board practice which holds that when an em-

ployer’s unfair labor practices have destroyed the accuracy of the

. election process as a barometer of employee opinion, the employ-

_ er’s subsequent refusal to negotiate becomes a section 8(a) (5) 7

violation, 395 U.S. at 594.

Since we find that the bargaining order here was justified under

both special circumstances outlined in Gissel,-we must also ap-

- prove the Board’s conclusion that Stevens violated section 8(a)

(5). But such post-décision labeling adds little to what we deem

the proper analysis of this case: whether, as a remedy for Stevens’.

violations of section 8(a) (1) and section 8(a) (3), a bargaining

_order is preferable to a Board-conducted election. See Note, The -

Supreme Court, 1968 Term, 83 Harv. L. Rev. ‘7, 247-52 (1969); cf.

NLRB v. Wylie Mfg. Co., ‘10 Cir. 1969, 417 F.2d 192, 196, cert.

denied, 397.U.S. 913.

Stevens and the intervening employees argue that a, bargaining order

is inappropriate since the election which the Union lost was never

set aside because ‘of any unfair labor -practices. The Board’s

Regional Director set aside the election because of Stevens’ refusal

to supply an Excelsior list and thus found it “unnecessary to con-

sider” the Union’s other objections, including the allegation that

unfair labor practices made the election invalid. This disposition

had a practical basis, for it vitiated the necessity for a long evi-

dentiary hearing. It did not preclude ms Board from subsequently

finding, as it did, that ‘

“[t]he timing of Respondent’s tials un¥air labor prac-

_ tices, commencing almost: imnfediately after the organiza-

* . tional drive began ahd persisting until after the time éf the

election, persuades us that the unfair labor practices were

« .

lla

zational drive. The timing of Respondent’s unfair

labor practices, commencing almost immediately -

after the organizational drive began and persisting -

until after the time of the election, persuades us

that the unfair labor practices were calculated to,

and in fact did dissipate the majority which the

Union acquired between February 18 and March

18, 1968. In these circumstances .we believe that a

bargaining order is required to repair the. effects of

such unfair labor practices: For this reason, and

‘also because Respondent’s unfair labor practices

-.were of such a nature as to make the erasure of.

their effects by traditional remedies and holding of

a fair and coercion free rerun election improbable

if not impossible, we are of the opinion and find

‘that, on | balance the rights of the employees. and

calculated to, and in fact did dissipate the. majority which

the Union acquired between February 18 and March 18,

1968.”

Stevens’ and the intervening employees’ contentions are, there-

fore, without merit. :

' Moreover, a finding that an election has — set aside be-

cause of. employer unfair labor practices may not always be

- a prerequisite to the issuance of a bargaining order. While

Gissel requires that the Board determine that employer unfair

labor practices have made a fair election improbable; that

requisite finding looks predominantly to the future. The fact

that.an election has been set aside for reasons other than

pre-election unfair labor practices — for example, for failure.

to supply the Excelsior list — does not necessarily mean that

a fair rerun election may. be held. Post-election unfair labor

practices may also destroy laboratory conditions. If so, the.

Board must then determine ‘whether a bargaining order, de-

spite an absence of majority support, is more appropriate

than a rerun election under prevailing coercive. conditions.

‘See NLRB v. Drives, Inc., 7 Cir. 1971, —— F.2d —~—-; cf.

Independent, Inc. v. NLRB, 5 Cir. 1969, 406 F.2d 203, 207-08.

; ) 12a

the policies of the act would better be effectuated ©

by reliance on the employee sentiment as expressed

in the authorization cards. Accordingly, as there is

no question that the Union had been validly des-

ignated by. a majority of the employees as their

represent: e when the Union. renewed its bar-

baining d&fand, we find that by refusing to honor

the Union’s bargaining demand arid: ‘by engaging

¥ the numerous unfair labor practices found by

e Trial Examiner, Respondent violated Section

8(a)(5) and (1) of the Act, and that the poticies

of the“Act will be effectuated by the irhposition of

a bargaining order to remedy the Respondent’s re-

fusal to bargain, as well as its other unfair labor

practices herein found. N.L.R.B. v. Gissel Packing

} Compan y, 395 U.S. 575, Sinclair Company y v.

* NLRB. 395 U.S, 575.”

| e *

In agreement with the Board we think that’ the

- present proceedings constitute one of those “excep-

tional” cases marked by “outrageous” and “pervasive”

unfair labor practices which, under Gissel, justify the

issuance of a bargaining order despite the absence at

one point of a Union-demonstrated majority. Stevens’

intransigent recidivism is patent and overt. Denomi-

- nating our case as Stevens VI in deference to histori- -

cal accuracy, we note that neither the passage of time —

_ nor the admonishments®of judicial tribunals have

caused the Company to alter its now all too familiar

13a.

pursuance of full-scale war against unionization.

Judge Brown's characterization in Stevens V is equal-

sf - here:

“Stevens has been engaged in a massive mul-

tistate ——— to prevent unionization of its

_-Southern plants. °This campaign has involved nu-

merous flagrant unfair labor practices including

coercive interrogat ition, surveillance; threat of plant

_ closings, and economic reprisals for Union activity. ;

Moreover, the threats have been made good by. ex- -

tensive discriminatory discharges. As a result of

these practices, several unfair charges have been .

brought before the Labor Board (see note 7 supra)

and, except for slight variations, the orders of the

Board have been enforced by two other Circuit

Courts of Appeal in Stevens I, II and‘IIL.and IV

(see note 1 supra). As the Fourth Circuit said in

panes the Company's conduct in Stevens Ill -

— and IV, “the Board property took into considera- ;

tion the unfair labor practices that Stevens I and —

II, disclosed; and we, in turn, cannot ignore this

evidence. Maphis Chapman Corp. v..NLRB, 368 F.

2d .298, 303 (4th Cir; 1966)”. Stevens III and iV

at 1019 of 406 F. 2d. Nor can we, in our. subsequent |

tum ignore the unfair labor practices disclosed in |

Stevens III and IV. To Pr gs we add the incidents;

and violations found by the Board to have océurred

in the Georgia plants. Thus we assay the order in.

"this atmosphere of persistent, long continued, flag-

rant violations occurring after and in spite of re-

— ls. e

peated decieentole of legality ss Board and re- |

viewing Courts.”

_ §. P. Stevens & Co. v. NLRB, supra, 417 F. Qd at

537. oe |

In such an atmosphere the: Board was warranted

- in finding that even if the Union never Possessed a

valid card majority, a bargaining order was appropri-

. ate to combat Stevers’ anti-union conduct. The.ex- .

tensiveness of ‘the. unfair labor practices here would

clearly support a finding that “their coercive effects

cannot be eliminated by the application of traditional

remedies, with the result that a fair and reliable elec- .

‘tion cannot be had.” NLRB v. S.S. Logan ‘Packing Co..

supra, 686 F.2d at 570, quoted with approval ‘in

NLRB v. Gissel Packing Co., supra, -395 U.S. at 614.

Such practices, particularly the circumstances of the

- dismissals of three leading Union adherents and the ’

campaign of blatant surveillance, interrogation, and ©

threats are sufficient to bring this case within the

pattern of other cases which have been deemed * ‘ex-

ceptional.” E.g., NLRB v. Gissel Packing Co., supra,

395 U.S. at 579, aff'g NLRB v. Sinclair Co., 1 Cir.

_ 1968, 397 F.2d 157; G.P.D., Inc. v. NLRB, 6 Cir.

--1970,.430 F.2d 963; NLRB v. Wylie Mfg. Co., supra;

see NLRB v~Lou De Young’s Market Basket, Inc., 6

Cir. 1970, 430 F.2d 4? ;

B.

Moreover, we hold that in any event the bargaining

order here: was 3 justified because the Union did at

15a

-

one point demonstrate a card majority. We discussed

this second classification of cases in NLRB v. Ameri-

can Cable Systems, Inc., supra, 414 F.2d at 668-69:

_ “Under the Gissel holding a bargaining. order

may issue where: ( ay the union had valid authori-

zation cards from a majority of the employees i in an

appropriate bargaining unit; (b) the employer's ..

unfair labor practices, although not: ‘outrageous’

and ‘pervasive’ enough to justify a bargaining order

in the absence of.a card majority, were still serious

and extensive; (c) ‘the possibility of erasing the

effects of past practices and of ensuring a fair elec-

tion (or a fair rerun) by the use of traditional rem-

edies, though present, is slight’; and (d) employee

sentiment can best. be protected in the particular

case by a bargaining order.”

Stevens and the intervening employees argue, how-

ever, that the Union never had a valid authorization

card majority. While admitting that as of March 18

the Union did possess enough employee signatures to

constitute a numerical majority.'* Stevens and the

_intervenors claim that sufficient numbers of these

signatures were obtained by coercion or misrepresen-

tation to vitiate the ostensible majority. In support of

12The Board adopted the Trial Examiner’s finding that while in Feb-

ruary, at the time of the first recognitional demand, the Union

did not possess a card majority, it had established majority sup- .

port by. March. Thus, on March 18, 1968, the Examiner found -

that the Union had secured 224 valid authorization cards from

a unit consisting of 343 employees. On April 20, 1968, when an.

additional recognitional demand was made, the Examiner found

that the Union had secured 222 valid authorization cards from

a unit consisting of 326 employees. ;

162

‘their contentions the Company ‘a the individual in-

_tervenors append excerpts from the testimony of 92

Stevens’ employees which, they claim, demonstrate

conclusively the presence of —e and

coercion. :

The conflicting testimony in this case demonstrates.

that authorization cards are often a hazardous basis -

upon which to ground a union majority. Nevertheless,

where emacs unfair labor practices | have under-

termining acute sentiment, ‘a Board-conducted

election, reliance upon authorization cards may be

necessary. In Gissel the Court recognized this fact:

“The acknowledged superiority of the election proc-

ess, however, does not mean, that cards are thereby

rendered totally invalid, for where an employer.

engages in conduct disruptive of the election proc- ;

ess, cards may be the most effective — perhaps the.

only — way of assuring employee choice.” NLRB

v. Gissel Packing Co., supra, 395 U.S. at 601.

Where courts are forced to rely on authorization

_ cards, of course, they must not be oblivious to the cir-

cumstances under which the cards were solicited. But .

where the cards are, as here, unambiguous on their

face,"* the circumstances must show clearly and con-

13Each card read as follows:

“Textile Workers Union 8 America

Affiliate of the AFL-CIO and CLC ~

I hereby join with my fellow workers at the ........ Arey?

saeendeckaigenen mill in organizing a union to better our condi

tions of life and secure economic justice, as is my right under |

Fy the laws of the United States. To this end I declare that the

fia

vincingly that they were secured sheesh coercion 4

misrepresentation before they may be disregarded.

See Retail Store Employees. Union Local 880 v. NLRB,

D.C. Cir. 1969; 419 F.2d 329, 334. The Court in Gissel

phrased the test as follows:

“+ &

“In. resolving the conflict among the circuits in

Bide of approving the Board’s Cumberland rule, we .

think it sufficient to point out that employees —_____—-

- should be bound by the cle he clear language of what they

sign unless that language is deliberately and clearly

canceled by a union adherent with words calculated

to direct the signer to disregard and forget the lan-

guage above his signature. There is nothing incon-

sistent in handing an employee a card that says the

signer authorizes the union to represent him then —

telling him that the card will probably be used first

Textile.Workers Union of America, AFL-CIO and CLC, shall “ -

be any representative in collective bargaining over wages, “~

hours and all other conditions of employment: I make this nce

pledge of my own free will in the conviction that'the united. ~

action of all workegs through union of their own choosing

is the’ way to achieVe the liberty of the individual for the

benefit of all. -

In addition, these cards had a place for the employee’ s signature,

the date, job description information, and the employee’s address.

As second type of authorization card distributed by the Union

read as follows:

Textile Workers Union of America

Affiliate of the AFL-CIO andCLC - Cy: ‘

I hereby accept membership in the Textile Workers

Union of America of my own free will and do hereby desig-

nate, said Textile Workers Union of America as my repre-

sentative for the purposes of collective bargaining in respect

to rates of pay, wages, hours of employment or other con-

ditions of employment.” .

In addition these cards had spaces for the employee’ s signature,

.job description, date, and employee’s address.

’

TPAC TEPER Te

aaah i

~_ ai i ih ls es

18a

to get an’ election. Elections have been, after

all, and will continue te be, held in the vast majority

__ of cases; the union will still have to have the sign’-.

fures of 30% of the employees when an employer

rejects a bargaining demand and insists that the

‘union seek an elections We. cannot agree with the

employers here that employees as a rule are too

unsophisticated to be bound by what they sign un-

less expressly told that their act of signing repre-

sents something else. In addition to approving the

use of cards, of course, Congress has expressly au-

thorized reliance on employee signatures alone in

other areds of labor relations even where criminal,

sanctions hang in the balance, and we should not

act hastily in disregarding congressional judgments

that employeees can be counted on to take responsi-

_ bility for their acts.

“We agree, however, with the Board’ S own warn-

“ings in Levi Strauss, 172 N.L.R.B. No. 57, 68

L.R.R.M. 1338, 1341, and n. 7 (1968), that in hear-

ing testimony concerning a card challenge, trial

examiners should not neglect their obligation -to

ensure employee free choice by a too easy mechani-

cal application of the Cumberland-rule. We also ac-

cept the observation that employees are more likely

than not, many months after a card drive and in

response to questions by company counsel, to give

testimony damaging to the union, particularly

where company officials have previously threaten-

ed reprisals for union activity in violation of § 8(a).

#}

19a

(1). We therefore reject any rule that. saeimea a

. probe of an employee's subjective motivations as

involving an endless and unreliable inquiry.”

395 U.S. at 606-08.

The litany of testimony adduced -by the Company,

the individual intervenors, andthe Board convinces *

us of the merit of refusing to rely on. “subjective mo

- tivations” and of viewing with a critical eye post-solici-

tation statements contrary to the language of the \ ;

_cards. See also NLRB v. American Art Indus.,-Inc., . ~

5 Cir. 1969, 415 F.2d 1223, cert.-denied, 397 U: S. 990;

NLRB v. American Cable Systems, Inc., supra, 414 —

.F.2d at 665-6%. Most of the testimony of the 92em-

ployees proferred by the Company and the intervenors f

is hazy, imprecise, and contradicted by the testimony of

not only of Union solicitors but also of fellow employ

s.'* See Amalgamated Clothing Workers of Ameri¢a

v. >. NLRB, D.C. Cir. 1969, 420 F.2d. 1296, 1301-02; Re-

tail Store Employees Union Local 880 v. NLRB, su-

pra,419 F 2d at 335. Other testimony, while perhaps

ge

4For example, many of these cards were solicited at t Union meetings.

held on February 12 and February 15, 1968. The Trial Examiner, °

relying on the testimony of Union Representative McIver and

-numerous employees, foufhd that at those meetings McIver told

_the employees that the Union would first ask for recognition and

that, only afterwards, if the Company refused to grant recogni-

tion, would the cards be used for an election: Much of the oppo-

sition testimony proves no more than that an election was men-

tioned at the meetings. But as the Supreme Court clearly held

in Gissel, mere mention that the cards may be used to secure an _

election is not sufficient to vitiate their efficacy. Such- cards can |

be disregarded only where Union organizers solicit them on the

explicit or indirectly expressed representation that they will use

such cards only for an election. NLRB v. Gissel Packing Co.,

supra, 395 U.S. at 607-08 & n. 27.

20a

producing a sharper conflict,’* simply raises credibility

choices which are within the province of the Trial

Examiner and the Board to resolve. NLRB v. Ameri-

_can Art Indus., Inc., supra, 415 F.2d at 1227. We there-

fore hold that the findings of the Board are supported

by substantial evidence and conclude that as-of March

18 the Union possessed a — authorization card

majority.

2

The fact that the Union held a valid authorization

card majority on March 18, however, is fot sufficient

in itself to warrant the issuance of a bargaining order.

In Gissel the Supreme Court noted that even if'an em-

_ ployer committed serious-unfair tabor practices which

might have dissipated a Union majority; the Board, in

determining the propriety of a bargaining order, must

make a contemporaneous judgement.

_ “If 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 em:

ployee sentiment once expressed through cards,

would, on balance, be better protected by a bar-

gaining order,#hen such an order shall issue.’ * 395

U.S. at 614-15. See also.NLRB v..American Cable

Systems, Inc., 5 Cir. 1970, 427 F.2d 446. .

‘In short, since a Board-conducted election is the pre-

ferred mode of determining employee sentiment, the

oY

15Most of this enthnany concerns those cards solicited by Union or-

ganizers on the access road outside the plant and those cards

solicited by employee adherents of the ‘Union.

%,

Zia

_Board should approach the bargaining order remedy _ .

with some caution. The touchstone is the protection

of employee free choice. If, at the time of the Board

proceedings, the conditions at the plant are such that

a fair election is probable;-the Board should not issue

a bargaining order. But if the Board determines that.

the effects of the employer unfair labor pratices make

_a fair election improbable, it should order the em-

ployer to: bargain on the basis of employee ‘sentiment

. expressed in the authorization cards. As we stated the

matter in American Gable:

_ “Gissel does not apply a nunc pro tunc principle, 7

giving the then sins of the Company a now appli- 7

cation. It requires contemporaneity — a present

view, albeit with an historical. prospective. Indus-

~ trial democracy should be allowed. to work its will -

if the present conditions are sufficiently antiseptic

for an election. On the other hand, if the employer's

1965 violations of § 8(a) (1).and (3) have a 1970

existence, Gissel commands the issuance. of a bar-

gaining order... . .” NLRB v. American Cable Sys-

tems, Inc., supra, 427 F.2d at 449.

The Company and the individual intervenors here

argue that since 117 Stevens’ employees now inter-

vene and urge an election, employee free choice would .

be thwarted by orderiag Stevens to-bargain with a

now rejected Union. The Board, on the other hand,

-contends that this employee recantation is simply evi-

dence of the continuing presence of the polluting

22a

effects of Stevens’ unfair. labor practices We agree

with the Board.

Many of those employees who now intervene on be-

~ half of the Company were active-union adherents dur-

’ ing the organizational drive. We think that the Board

could find in its expert judgment that their subsequent

recantation was simply a product of Stevens’ unlawful

conduct. The anti-union history of Stevens and the ex-

tensive unfair labor practices chronicled in this case -

‘provide substantial evidence for such a conclusion. It

would be a hardy employee indeed. who would risk dis-

charge or a plant shutdown by- actively and overtly

supporting the Union. Since the 1968 unfair labor

practices continued to have a 1969 vitality, the time

-the Board entered its order, the Board was justified in -

determining that a fair election was improbable and

that a bargaining order was required."* See Ace-Alkire

16The revelant time-period for making: such a determination is when

the matter is before the Board for remedial action — October,

1969, in the instant case. If a bargaining order is deemed ap-

‘propriate at that time, the court should not reconsider the matter

as of the date it is before it for enforcement. Thus, in NLRB v.

L. B. Foster Co., 9 Cir. 1969, 418 aaa 1, 4, cert. denied, 397

U.S. 990, the court stated:

“We do not think that these facts permit us to refuse to’ _

enforce the Board’s-order. The delay is not the fault of the

union; if it is-anyone’s fault, it is that of the employer. But

regardless of fault, it is an unfortunate but inevitable result

of the process of hearing, decision and review prescribed

in the Act. And to deny enforcement, with or without re-

mand for reconSideration on the basis of facts occurring .

after the Board’s decision, is to put a premium upon con-

tinued litigation by the employer; it can hope that the result-

ing delay will produce a new set of facts, as to which the

- Board must then readjudicate. Suppose that the Board does

so, and again finds against the employer. There can then -.

be a petition to this court, a decision by it, and a petition

>

23a°

Freight Lines, Inc. v. NLRB, 8 Cir. 1970, 431 F2d 280,

284; G.P.D.,-Inc..v. NLRB, supra; NLRB v. Lou’ De

Young’ s Market Basket, Inc., supra, 430 F.2d at 915;

‘NLRB v. Wylie Mfg. Co.; , supra, 417 F.2d at 195-96. °

We realize that as a result of the employer unfair

labor -practices the Union has not been able'to;retain

_ its majority status. The Board,. therefore, is in one

sense imposing a minority Union on the majority of —

Stevens’ employees. The Supreme Court in Gissel,

_ however, clearly addressed this issue and resolved it

in favor of the Board:

“Remaining befor’ 1 us is ‘the propriety of a | bar:

gaining order as a remedy for a § 8 (a) (5) refusal —

to bargain where an employer has committed ind

pendent unfair labor practices which have made

the holding of a fair election unlikely or which have

in faet undermined a union’s majority and. caused

an election to be set aside. We have long held that

the Board is not limited to a cease-and-desist order’

in such cases, but has the authority to issue a bar-

for certiorari to the Supreme Court. By that time ‘there will

almost surely be another new set of net. When is the

process to stop?”

See also NLRB v. South Bay Daily Breeze, 9 Cir. 1969, 415 F.2d

360, 367, cert. denied, 397 U.S. 915.

Nothing we said in NLRB v. ‘American C&Able Systems, ee

‘supra, 427 F.2d 446, is inconsistent with this a In =.

case there was. a ‘remand to. te Board in light of Gissel. We

simply held that, at the time the Board reconsidered the propriety

| _* of a bargaining order on remand under Gissel standatds, it was

required to consider the then existing situation at the company

to determine whether a fair election was still improbable. The

Foster case was en distingiushed on’ this ground. 427

F.2d at 448.

Oo |

4

‘94a

gaining order without first requiring the union to

show that it has been able to maintain its majority

*. status. See NLRB v. Katz, 369 U.S. 736, 748 n. 16.,.

8 L Ed 2d 230, 239, 82 S Ct 1107 (1962); NLRB v.

- Lorillard Co. 314 US 512, 86 L Ed 380, 62 S Ct 397

. (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 Bros. Co. v.

NLRB, 321°US 702, 88 L Ed 1020, 64S Ct 817°

(1944). We see no reason now to. withde@® this

authority from the Board. 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 em-

-_ ployer and allowing him “to profit from [his] own

“wrongful refusal to bargain,” Frank Bros., supra, at

704, 88 L Ed at 1023, while at the same time se-

verely curtailing the employees’ right freely todeter-

- mine whether they Jesire a representative. The em-

ployer could continue to delay or disrupt the ‘elec-

- tion processes and put off indefinitely his obligation

‘to bargain; and any election held under these cir-

cumstances would not be likely to demonstrate

_ the employees’ true, undistorted desires.

_ “The employers argue that the Board‘has ample

remedies; over and above the cease-and-desist order,

to control employer misconduct. The Board can,

they assert, direct the companies to mail notices to

employees during plant time and to’ give the union

tnt access to employees during working time at .

®

20a

plant, or it can.seek a court injunctive. order under

§ 10(j) (29 USC’§ 160(j) ).as a last resort..In view

_ of the Board’s power, they conclude, the bargaining

~ order is an unnecessarily harsh remedy that need-

. lessly prejudices employees’ § 7 rights solely for the

purpose of punishing or restraining an employer.

Such an argument ignores that a bargaining order

is designed as much ‘to remedy past election dam-

age™ as it is to deter future misconduct. If an em-

ployer has succeeded in undermining a union’s

strength and destroying the laboratory conditions

“necessary for a fair election, he may see no need. to

violafé a cease-and-desist order by further unlawful

-activity. The damage: ‘will have been done, and per-

haps the only fair way to effectuate employee rights

is to re-establish the conditions as they existed be-

fore the employer's unlawful campaign.

) “There is, after all, nothing permanent in a bar-

gaining order, and if, after the effects of the employ-

er’s acts have worn off, the employees clearly desire’

to disavow the union, they'can do so by filing a rep-

resentation petition. For, as we pointed out ‘long

ago, in finding that a bargaining order involved no

“injustice to employees who may wish to substitute

for the particular union some other . . . arrange-

ment,” a bargaining relationship “once rightfully

-established must be permitted to exist and function

for a reasonable period in which it can be given a

fair chance to succeed,” after which the “Board

may, ... upon a proper showing, take,steps in rec-

ognition of changed situations which might make -

SS ea

°6a

appropriate changed bargaining relationships.”

Frank Bros., supra, at 705-706, 88 L Ed at 1023.”

395'U.S. at 610-13 (footnotes omitted ).

Still it might be argued that many of the recanta-

tions were not the product of Stevens’ unlawful con-

duct. There may be employees who, uncoerced by the

Company's unfair labor practices, now reject the —

Union. Employee free choice for them would best be

_ served by an election. But the Board’s evaluation of .

the propriety of a bargaining order cannot be based on

: employee motivations, determined individual by indi-

. Vidual. We cannot require the Board to engage in the

hopeless and impossible task of evaluating the sub-—

jective reasons for each employee recantation. The

Board must, ‘on the objective facts, determine the seri-

ousness of the employer unfair labor practices and

consider the possibility of a fair rerun election. Note,

NLRB v. Gissel Packing Co.: Bargaining Orders and -

_- Employee Free Choice, 45 N.Y.U. L. Rev. 318 (1970).

Once the Board has done so, if supported. by substan-

tial evidence, its bargaining order must be enforced.

Since we have found that the Board’s conclusions are

indeed amply supported by the record, we also enforce

that portion of its order requiring Stevens to bargain

with the Union. }

IV. -

In No. 29,037 the Union asks us to remand the case

to the Board for the imposition of more meaningful

and far-reaching remedies than those ordered. As we

noted earlier the Board’s order, which we have en-

27a-

~ forced in full, requires the Company to cease and.de-

sist from its‘unfair labor practices, to employ the dis-. ~

criminatees and make themAvhole, to bargain with .

the Union, and to post appropriate notices. Such an

order is clearly traditional for the unfair labor prac-

tices. found here. In addition the Board ordered, and

we enforce, certain supplemental remedies which

have become traditional for Stevens’ plants. See NLRB

v. J. P. Stevens & Co., supra, 417 F.2d at 534-35. The

_ Company is ordered to convene its Statesboro em- ,

ployees and read them the Board’s notice during work-

ing time, to mail a copy of that notice to each States-

_ boro employee,.and to grant the Union reasonable

access to its bulletin boards for a period of one year.

The Union complains of the Board’s failure to —

the following additional remedies:

“(1) furnish the Union with the names and ad-

dresses of all employees in the Company’s plants in

North Carolina, South Carolina and Georgia; (2)

post notices in all of the aforementioned plants;

(3) permit a Union representative to enter these —

plants for the purpose\ of delivering a one hour

speech to employees on the advantages of union

membership; (4) furnish the Union with the job .

classifications, wage rates and seniority lists for all

employees in the Company’s Statesboro, Georgia

plant; and (5) make whole all employees in the

appropriate unit at the Statesboro plant for those

‘contractual benefits which would have-accrued to

them had the Company not unlawfully refused to-

cht BH TLRS ET Bed aia BVA cae NTS nb ed And BORNE

- 980 e

bargain, and had a collective bargaining agreement

been consummated.”

- The Union acknowledges. that there is a presump-

tion that favors the Board, with its expertise, in its

selection of remedies. As we noted in Stevens V:

“In determining whether a particular. affirmative

action ordered by the Board pursuant to its powers

under § 10 (c), 28.U.S.C:A. 160(c), is appropriate,

the reviewing Court: must pay an unusually high

degree of respect-to the Board’s conclusion — these _

remedies are “peculiarly a matter of administrative

| competence.” Fibreboard.Paper Products Corp. v.

NLRB, 1964, 379 U.S. 203, 216, 85 S.Ct. 398, 406,

13 L.Ed. 2d 233, 241. In Virginia Electric & Power

Co. v. NLRB, 1943, 319 U.S. 533,.63 S.Ct. 1214, 87

L.Ed. 1568, the Supreme Court stated it in stringent

“terms: “[The order] should stand unless it can be ~

‘shown that the order is a patent attempt to achieve

ends other than those which can fairly be said to

effectuate.the policies of the Act.” at 319 U.S. 540,

63 S.Ct. 1218, 87 L.Ed. 1574. Fresh emphasis on

the peculiar respect due Board determination. of

- remedies has been given by the Supreme Court in |

NLRB v. Gissel Packing Co., Inc., 395 U.S. aul 89 .

S.Ct: 1918, 23 L.Ed.2d 547: . )

“It is for the Board and not the Courts * * * - to

make [the] determination [of remedies], based on

its estimates as to the effects on the election process _

of unfair labor practices of varying intensity. In

fashioning its remedies under the broad provisions

29a

_ of § 10(c) of the Act * * * the Board draws ona

fund of knowledge and expertise all its own, and -.

its choice of remedy must therefore be given special

respect by reviewing-€ourts.” at 395 U.S. 612, 89

SCE. 1939, 23. L. Ed. 2d 577, n. 32 ae

added).

And, in upholding a Beard’s order compelling

the payment of fringe benefits as a part of the rem-

edy for a § 8(a) (5) violation, the Court said of

§ 10 (c) this “grant of remedial power is’a broad

one.” NLRB v. ae 1969, 393 U. S. 357, So S.Ct.

541, 21 L.Ed. 546.”

417 F.2d at 537-38.

The Board’s discretion, of course, is not unlimited.

_ Thus, under section 10(c)’s “affirmative action” man-

- date there may be cases where the Board has gone too °

far. See e.g., H. K. Porter Co. v. NERB, 1970, 397 U.S.

99, 90 S.Ct. 821, 25 L.Ed.2d 146. Conversely, there

may also be-cases where the Board has not gone far

enough. See, e.g., Food Stores Employees Union Local

347 v.. NLRB, D.C. Cir. 1970, 433 F.2d 541; Inter-

national Union of Electrical-Radio & Machine Work-

ers v. NLRB, D.C. Cir. 1970, 426 F.2d 1243. Consider-

ing the plethora. of Stevens’ cases before the Board

and the courts, we are convinced that, to the Com- :

‘pany, the words of judicial and administrative ad-

_monition are as but “sounding brass or a tinkling cym-

bal.” The Board is therefore under an obligation to

devise some meaningful affirmative action to-counter ~

the Company’s known predisposition to violate the

an SP eee " d

.

- — 7 ‘ " “

gaat ee tebe dics na tlie il eat tea

~

30a

Act. P ae in. this case, ci: sabia just

such an effort by the Board. There has been over. the

years a careful tailoring of remedies to meet the pe-

’ cultar problems ‘posed at the Stevens’ plants. .The

Union in effect. argues that the Board could have

done better. That judgment, however, unless there

has been an abuse of discretion, is left for the Board.

Finding no such abuse, we reject the Union’s plea and

enforce the order as it stands, praying that there will

be no Stevens VII.

The Board’ s order is ENFORCED.

. AINSWORTH, Circuit Judge, specially concurring: : |

’ I concur in the enforcement of the Board’s order in

this case, though not without some misgivings as to

the propriety here of the Board’s issuance of a bargain-

ing order without a-rerun election.

When the Union was unsuccessful in the original

__. election by a vote of. 198 to110 against representation,

the Regional Director set the election aside and order-

.ed a second election, for failure of the Company to

supply a list‘of names and addresses as required by

N.L.R.B. -in the “Excelsior” case (156 N.L.R.B. 1236

(1966) )..The second election, however, was not held

because the Union in the meanwhile-had filed an un-

fair labor charge under Section 8(a) (5) of the Act

that the Company had unlawfully refused to bargain.

After a hearing the Examiner, and later the Board, »

- agreed that the charge against the Company should

_be sustained. A bargaining. order was issued, without

the holding of the second election, on the basis of an

3la

o %

authorization card majority because of the Company’ S

refusal to’ bargain and other unfair labor practices.

The Board cited N.L.R.B. v. Gissel Packing Co., 395 —-

U. S. 575, 89 S. Ct, 1918 (1969) as authority ton its _

order. . . a

In the ere before the Board, 117 employees *

of the Company intervened in the representation part

of the hearing, contending that they signed the au-

thorization cards on Union representations that they

were signing to get an election, and that. the cards

could not properly be considered as authorizing col-

lective bargaining. Ninety-two employee witnesses

then testified substantially to this effect, putting at

issue the question of whether the Union ever had a

_ card majority. The 3 Union organizers also testified ©

and denied any misrepresentations in obtaining the

cards. The Examiner credited the Union witnesses but

declined to believe the employee witnesses.

The evidence was, therefore, in sharp conflict, but

in the absence of some unusual circumstance, we are

obliged to accept the Board’s findings (sustaining the

- Examiner) even if another choice might have been @

made had the matter beer before us de novo. See

- N.L.R.B. v. Monroe Auto Equipment Company, 5 Cir.,

1968, 392 F. 2d 559, 960-61, cert. denied, 393 U. S. 934.

Board policy in representation, cases favors the hold-

ing of elections — in secret — as the most satisfactory

and preferred method of ascertaining whether a

Union has majority support. See Gissel, supra;395__

U.S. at 605, 89S. Ct. at 1934 ( — It is obvious that

nat nats Det

4

‘ane aS Ie seca taki t AE ib.

.

ii iat Ne a wlan sat

th

32a

such an election is hiettes than the dite and

less reliable card authorization method.

It is arguable, however, whether ‘tienda condi- -

tions, insuring fairness and impartiality, could be had

at a rerun election. But under all the facts and circum-

stances here, including the sharp conflict in the evi-

dence and the recantation of a large number of em- __

ployees of the cards they signed, such an election

‘ could be the best solution here. Then: the troublesome

question of whether thé Board is imposing: a’ minority

Union on the majority of the Comparty’s employees

could be settled. Nevertheless, using the procedure ap-

proved by the Supreme Court in Gissel, the Board has

‘issued a bargaining order without an election “and its

choice of remedy must therefore be given special re-

spect by reviewing courts.” See Gissel, — 395 U.S.

at 612, 89 S.Ct. at 1939 n- 32.

Since the Board’s order is supported by substantial -

evidence, though conflicting, and our review is limited

to a determination as to whether there is substantial

evidence to support the Board’s findings, I. have re-

solved the matter in favor of the Board’s decision and

concur in enforcement of its order.

, | 33a

UNITED STATES COURT OF APPEALS

ee FOR THE FIFTH CIRCUIT |

5

_ J.P. STEVENS & CO., INC.,

GULISTAN DIVISION,

Petitioner-Cross-Responde nt,

Loa | > No. 28631

| NATIONAL LABOR REE ATIONS

BOARD,

-+Respondent-Ci sas Dalit: |

J

_ TEXTILE WORKERS UNION

OF AMERICA, AFL-CIO,

- Petitioner,

‘ te ~ No. 29037

NATIONAL LABOR RELATION S

| BOARD,

Res pondent. :

JUDGMENT

‘ Before: Thornberry, Goldberg, and Ainsworth,

Circuit Judges. masa’ a a, s¢

THIS CAUSE came on to be ened ¢ upon the peti-

tions of J. P. Stevens & Co., Inc., Gulistan’ Division,

and Textile Workers Union of America, AFL-CIO, to

review an order of the National Labor Relations Board ~

issued against petitioner in No. 28631 on October 22,

1969, and upon cross- application of the National |

eel

bie Relations Board to enforce. said order. The .

-Court heard argunient. of respective counsél on No-

vember 17, 1970, and has considered the briefs and .

transcript of record filed in this cause. On March 22,

_ 1971, the Court being fully advised in the premises,

handed down its decision granting enforcement, of

_ the Board’s order. ,

ON CONSIDERATION WHEREOF. it is ordered

and adjudged by the United States Court of Appeals

for the Fifth Circuit that the said order of the National .

« Labor Relations Board in said proceeding be enforced, —

and that J: P. Stevens & Co., Inc., Gulistan Division, its

- . . Officers, agents, successors, and assigns abide by and —

| perform the directions of the Board in said order con-’

~ tained.: |

ENTERED: Ape. 13, 1971

.

ef

“~«. - Sd

UNITED STATES OF AMERICA)

BEFORE THE NATIONAL LABOR RELATIONS *

BOARD

L-P.STEVENS&Co,INC. .) >.

GULISTAN DIVISION .— | Cases 10-CA-7261 ~

— |. 100-7323 +»:

cerns —.-10-CA-7364

TEXTILE WORKERS UNION-| - © 9.47450.

OF AMERICA, AFL-CIO ar

Me e . J

DECISION .AND‘ORDER

On June 6, 1969, Trial Examiner Robert E. Mullin’

issued his Decision in the above-entitled proceeding,

finding that Respondent had engaged in-and was en-

gaging in certain unfair labor practices, ‘and recom-

mending that it cease and desist therefrom and take

certain affirmative action, as set:forth in the attached ,

Trial Examiner's: Decision. He also found that Re-

spondent had not engaged in other unfair labor prac-

tices alleged iri the complaint, and recommended that

such allegations be dismissed. Thereafter, Respond-

-ent, the Charging Party, and the Intervenors' filed

' exceptions to the Trial Examiner’s Decision ‘and sup-

<P SS

Pursuant to the provisions of Section -3(b). of the

National Labor Relations Act, .as amended, the Na-

1At the hearing in Case 10-CA-¥450, Don F. Hughes and approximately

113 other employees of Respondent appeared through counsel -

“and were permitted to intervene, in order to challenge the validity

of authorization cards obtained from them by the Union.

o— :

36a . ;

tional Laber Relations Board has delegated its powers

in connection with: ‘these: cases to a three-member

panel. i een

The Board has reviewed the rulings of the Trial

Examiner made at the hearing and finds that no prej-

udicial error was committed. The rulings are hereby

affirmed. The Board has considered the Trial Exam-

iner’s Decision, the exceptions and briefs, and the

entire record in these cases, and hereby adopts the *

findings,” conclusions,* and recommendations’ of the

Trial Examiner.

-2We agree with the Trial Examiner that Respondent violated Section

8(a) (3) and (1) by, refusing to employ Mary Frances Bradley .

for discriminatory reasons. The record reveals she applied for a

job with Respondent before organizational activities commenced,

At that timé, she listed two active union supporters as her rela- ~

tives on the application form. Bradley’ was then overweight.

Personnel Manager Harrington told her that “. . . he couldn't’

use me’ on account. 6f my weight for the insurance they were,

carrying,” and that she would have to lose some weight. By

April 30, 1968, after the organizational drive began, Bradley had

* lost approximately 85 pounds. Again she applied, telling Re- -

spondent she desperately needed a job. At this time Harrington

asked her if she were related to Charles Waters (a prounion

employee) and Truman Delano Cribbs (a union leader found to

have been discriminatorily discharged by Respondent on March

q 26). When she acknowledged being closely related to both, Re-.

spondent told her he could not promise her a job. Later, on May

6, when Bradley again asked for a job, Harrington told her no

job was available and she should not bother coming back.,

The record reveals that after Bradley’s April 30 application, Re-

spondent hired nine women. On these facts, against the strong |

background of the antiunion animus, we adopt the Trial Ex- .

aminer’s finding that Respondent refused to employ Bradley -

_ because of her relationship to active union supporters in viola- .

tion of’ Section 8(a) (3) and (1). In doing so, we do not rely

on: Bradley’ s testimony regarding her conversation with the Mayor

of Statesboro. after the April 30 application.

. In adopting the Trial Examiner’s 8(a) (1) and ¢3) finding re-

‘ gantien William Gary Akins, we do not rely on the Trial Ex-.

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aminer’s comments regarding~Respondent’s failure to withhold

salary from Akins during his absence from work. :

Respondent and the Intervenors have excepted to some of the

credibility resolutions made by the Trial Examiner.:It is the

Board’s established policy not: to overrule a Trial Examiner’s

resolutions as to credibility unless the clear preponderance of

all the relevant evidence convinces us that they are incorrect.

Such a conclusion is not warranted here. Standard Dry Wall

Prodycts,-Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3): ‘

*The record reveals that upon learning of the presence of the Union,

‘Respondent resorted to a campaign of extensive: and egregious

unfair labor practices in its efforts to thwart the Union’s organi-

zational drive. The timing of Respondent’s unfair labor practtces,

commencing almost immediately after the organizational drive

‘ began and persisting until after the ‘time of the election, per-

suades us that the unfair labor practices were calculated to, and *

in fact did dissipate the majority which the Union acquired be-

tween February 18 and-March 18, 1968. In these circumstances

we believe that a bargaining order is required to repair the effects

of such unfair labor practices. For this reason, and alsa because.

Respondent’s unfair labor practices were of suth a nature as

to make the erasure of their effects by traditional remedies and

holding of. a fair and coercion free rerun election improbable if.

not impossible, we are of the opinion and find that, on balance

the rights of the employees and the’ policies of the act would

better beveffectuated by reliance on the employee sentiment as

expressed in the authorization cards. Accordingly, as there is no -

question. that the Union had been validly designated by a ma:

jority of the employees as their representative when the Union

renewed its bargaining demand, we find that by refusing to

honor the Uniop’s bargaining demand and by engaging in the

‘ numerous unfair labor Practices found by the Trial Examiner,

Respondent violated Section 8(a) (5) and (1) of the Act, and

. that the policies of the Act will be effectuated by the imposition

‘of a bargaining order to remedy the Respondent's refusal to bar-

* gain, as well as its other unfair labor practices‘herein found.

N.L.R.B. v. Gissel Packing Company, 395 U.S. 575; Sinclair Com-'

pany v. N.L.R.B., 395 U.S. 575. .

‘The Charging Party has filed exceptions to the failure of the Trial

Examiner -to recommend a remedy which would make whole all

of Respondent's employees for contractual benefits which wquld —

have accrued to them had Respondent not refused to bargain and

*had a collective-bargaining agreement been concluded. We deem

it inappropriate in this case to depart from our existing policy

with respect to remedial orders in cases involving 8(a) (5) vio-

lations, and therefore find no merit in the -said exceptions. See

Monroe Auto Equipment Company, 164 NLRB No. 144.

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| / ORDER |

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Re-

- lations-Board adopts as its Order the Recommended

‘Order of the Trial Exammer, and hereby orders that

Respondent, J. P. Stevens & Co., Inc., Gulistan Divi-

_ sion, Statesboro, Georgia, its officers, agents, succes-

sors, and assigns, shall take’the a@tion set forth in the

Trial Examiner’s Recommended Order.

Dated, Washington, D. C., Oct. 22, 1969.

FRANK W. McCu.LtLocu, Chairman

GERALD A. BROWN, . ' Member

SAM ZAGORIA, " ' Member

NATIONAL LABOR RELATIONS

BOARD

(SEAL) .