Louisburg Sportswear Co.

National Labor Relations Board - Board Decisions

Jan 15, 1970

180 N.L.R.B. 739 (N.L.R.B. 1970)

LOUISBURG SPORTSWEAR CO. 739
Louisburg Sportswear Co. and Amalgamated
Clothing Workers of America , AFL-CIO. Cases
11-CA-3423, 11-CA-3463, and l1-RC-2596
January 15, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 8, 1968, the National Labor
Relations Board issued its Decision in the
above-entitled proceeding,' finding that Respondent
had engaged in certain conduct in violation of
Section 8(a)(l), (3), and (5) of the National Labor
Relations Act, as amended, and ordering
Respondent to cease and desist therefrom, and to
take certain affirmative action designed to effectuate
the policies of the Act, including an order directing
Respondent to bargain 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 Fourth Circuit remanded the instant proceeding
to the Board for reconsideration in the light of the
Supreme Court's opinion in Gissel. On August 19,
1969, the Board informed the parties that the Board
would reconsider its Section 8(a)(5) finding and the
bargaining order in this case in the light of the
guidelines laid down by the Supreme Court in
Gissel. 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.
The Board has considered the statements of
position and the entire record in this proceeding
and, for the reasons set forth below, has decided to
reaffirm its original finding that Respondent
violated Section 8(a)(5) and (1) of the Act by
refusing to recognize and bargain with the Union as
the majority representative of the employees, and
that a bargaining order is an appropriate remedy to
effectuate the purposes and policies of the Act in
this case.
The Supreme Court, in setting forth in Gissel the
general principles applicable to the issuance of
bargaining orders agreed that the Board has
' 173 NLRB No. 101.
'395 U.S. 575.
authority to issue a bargaining order, to redress
unfair labor practices "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 [unfair labor practices]."3 In
addition, the Court approved the Board's authority
to issue a bargaining order ". . . in less
extraordinary cases marked by less pervasive
practices, which nontheless still have the tendency to
undermine majority strength and impede the election
processes."' In the latter situation, the Board must
examine the nature and extent of the employer's
unlawful conduct and ascertain the likelihood that
the use of traditional remedies would ensure a fair
election. The Court instructed the Board to
determine whether . . even though traditional
remedies might be able to ensure a fair election,
there was insufficient indication that an election (or
a rerun . . .) would definitely be a more reliable test
of the employees' desires than the card count taken
before the unfair labor practices occurred."
In our opinion, a bargaining order is warranted
on the facts of this case under either of the above
standards. Thus, Respondent's numerous violations
of the Act prior to the election included
interrogation of employees regarding their union
activities; giving the employees the impression that
their union activities were under surveillance and
actually surveilling such activities; promising and
granting economic benefits to induce employees to
refrain from supporting the Union; and holding
meetings of employees and distributing letters and
notices to them to impress on the employees its
assertion of the inevitability of strikes and violence
together with the probability of the employees' loss
of jobs. Respondent also violated the Act by
discharging two employees and refusing to rehire
another because of their union activities.' The
Union, though possessing valid authorization cards
from a majority of the employees, failed to receive a
majority in the election, which has been
subsequently set aside on the basis of Respondent's
unlawful conduct.
'Id at 615
'Id. at 614.
'Respondent asserts in its statement of position that the Board, in
making its determination herein, should not give consideration to the two
discharges and the refusal to rehire found to have been violative of Section
8(aX3). As to the two discharges it contends that they could not have had
any effect on the election which the Union lost, because the Union activity
involved was on behalf of another labor organization and the discharges
occurred before the Union began the organizational campaign in which it
obtained the showing of cards used here to substantiate its claim of
majority representation As to the refusal to rehire, Respondent asserts
that such refusal had not been made evident, and hence could have had no
effect , at the time of the election We find no merit in Respondent's
position Even were we to give consideration only to Respondent's unlawful
conduct during the preelection campaign we would find it sufficient to
justify our present determination and order But we nevertheless believe
that we should , and we do here, give consideration to Respondent's entire
course of conduct, since the extensive character of Respondeht' s unfair
labor practices bears relevantly , not only upon the coercive impact of
Respondent 's past conduct upon its employees, but also upon the
180 NLRB No. 114
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's course of unlawful conduct has
demonstrated, we believe, a propensity to engage in
violations of the Act by their nature designed to
undermine the Union's support among the
employees. Its unfair labor practices set forth above
were so flagrant and coercive in nature as to
require, even in the absence of an 8(a)(5) violation, a
bargaining order to repair their effect. But we find,
in any event, that Respondent's unfair labor
practices were of such a pervasive character as to
make it unlikely that their lingering effects could be
neutralized by conventional remedies so as to ensure
a fair rerun election under conditions which would
restore the status quo ante and prevent Respondent
from reaping the benefits of its unfair labor
practices.6 In these circumstances, we are persuaded
that the unambiguous cards validly executed by a
likelihood of recurrence of such conduct and upon the possibility of
holding a fair rerun election
majority of employees in the unit represent a more
reliable measure of employee desire on the issue of
representation than an election would be. We
therefore find that by refusing to bargain with the
Union and engaging in the unfair labor practices
described above, Respondent violated Section
8(a)(5), and that to effectuate the policies of the Act
a bargaining order is required to remedy its refusal
to bargain as well as its other unfair labor practices.'
SUPPLEMENTAL ORDER
In view of the foregoing, and on the basis of the
record as a whole, the National Labor Relations
Board reaffirms its findings and the Order of
November 8, 1968, in this proceeding.
'See, NLRB v LB ForterCo,4i8F2d I (CA 9)
'General Stencils, Inc , 178 NLRB No 18, World Carpets, Inc , 176
NLRB No 138