Petition by the National Labor Relations Board for enforcement of an order directing respondent, which had violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and 158(a)(5), to cease and desist from engaging in such unfair labor practices and to bargain directly with Local 917 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Enforcement granted in part, denied in part .
Before Lumbard and Mansfield, Circuit Judges.*fn*
For a second time the National Labor Relations Board (the Board) seeks enforcement of an order entered by it on July 18, 1978, after it found that respondent, Jamaica Towing, Inc. (Jamaica), violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act (the Act), 29 U.S.C. §§ 158(a)(1) and (a)(5), immediately prior to a union representation election held on February 24, 1976, in which Local 917 of the International Brotherhood of Teamsters (the Union) was defeated. Jamaica was ordered to cease and desist from engaging in such unfair labor practices and to bargain with the Union. Upon the prior application we affirmed the Board's findings of unfair labor practices but remanded for further consideration of the order to bargain. 602 F.2d 1100. We directed the Board to consider whether, in view of a substantial change in Jamaica's work force, the bargaining order had become obsolete and unnecessary, and to outline the standards applied by it in its decision to issue a bargaining order rather than to limit itself to a cease-and-desist order followed by a Board-supervised rerun election. Upon remand the Board refused to consider employee-turnover as a relevant factor and did not explain the standards governing its decision to issue a bargaining order in this case as distinguished from its orders in other cases where that remedy had not been imposed. Accordingly, we deny enforcement of the bargaining order.
The facts are fully set out in our prior opinion, 602 F.2d at 1101-03, and need not be repeated in detail here. For present purposes it suffices to point out that at the time of the offenses Jamaica, a small company engaged in automobile towing and body repair, employed 8 tow-truck operators. On January 17, 1976, the Union obtained signed cards from 7 of the 8 authorizing it to act as their collective bargaining representative. A consent election held on February 24, 1976 was lost by the Union by a 6 to 2 vote. Between January 17 and February 24 Jamaica's President, Anthony Giorgianni, engaged in several unfair labor practices in late January, at a meeting of the drivers, he asked them who had signed with the Union and upon receiving no answer walked away. On different occasions he told each of three employees separately that he opposed the Union and could "use muscle" to take care of it. At a meeting with two drivers, after assuring them that no one would be fired because of joining the Union, he pointed out the disadvantages to them of unionization and, upon learning of the benefits which the employees sought to gain through the Union, stated that he could not make any promises because of the pending election but that he would consider the employees' demands. In mid-February, when four drivers, after obtaining a meeting with him, stated they had erred in seeking union representation and would reject the Union if he met certain demands, he repeated that he could not make any promises and outlined his attitude with respect to sick leave, hospitalization, uniforms and wage increases. Shortly thereafter the employees voted 6 to 2 against the Union.
The Union thereupon filed with the Board timely objections to Jamaica's conduct affecting the election, which were upheld by the Regional Director on May 11, 1976. The Board's General Counsel then filed the unfair labor practice charges against Jamaica which resulted in the order presented to us for review. In September, 1976, while the charges were pending but before the Administrative Law Judge (ALJ) had rendered his decision, 3 of the 8 employees were lawfully discharged for reasons later found to be whollyunconnected with their union activities.*fn1 As a result only 5 employees remained of the original 8.
On December 8, 1977, the ALJ found that Giorgianni had violated § 8(a)(1) of the Act by attempting to find out which employees had signed for the Union and by his individual meetings with each of three employees in which he expressed opposition to the Union and stated he would "use muscle" against it. The balance of Giorgianni's conduct was not found sufficiently egregious to constitute threats or promises of discharge, leading the ALJ to conclude that "the unlawful interrogations and threats ... neither require nor justify the imposition of a bargaining order under the standards set forth by the Supreme Court in NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969). Two instances of interrogation, and three non-specific threats to resort to "muscle,' do not, in any judgment, eliminate the possibility of a fair rerun election...." Accordingly he recommended that Jamaica be ordered (1) to cease and desist from engaging in the activities found to be unfair labor practices, or from interfering with the employees' exercise of their rights under § 7 of the Act, and (2) to post a notice in conspicuous places to the effect that it would not engage in such activities and that employees were free to become and remain members of the Union.
Upon exceptions filed by the General Counsel the Board, on July 19, 1978 (more than 2 years and 5 months after the conduct complained of), agreed with the ALJ's findings of unfair practices but rejected his inference as to the relative insignificance of Giorgianni's meeting with employees at which he pointed out the disadvantages of unionization and stated that, although he could make no promises, he would consider the demands and benefits voiced by them. The Board held that this conduct amounted to direct dealing with the employees and repudiation of Jamaica's bargaining obligation, in violation of §§ 8(a)(1) and 8(a)(5) of the Act. It also concluded that Jamaica had "engaged in pernicious conduct which, by its nature, has long-lasting if not permanent effects on the employees' freedom of choice in selecting or rejecting a bargaining representative" and that a bargaining order was required and justified.
On July 29, 1979, following the Board's initial petition for enforcement, we remanded with directions to consider the effect of the turnover of Jamaica's work force and to explain, in terms of standards or guidelines of general application consistent with its denial of bargaining orders in other similar cases, why such an order was required in this case rather than the preferred remedy of a Board-supervised second election held after entry of a cease-and-desist order of the type recommended by the ALJ. That order would require Jamaica to post notices that employees were free to remain or become members of Local 917. See, 602 F.2d 1100. Upon remand the Board, in a short "Supplemental Decision and Order," filed on January 17, 1980, for the most part regurgitated its prior decision, adding only that the impact of the employer's misconduct was pronounced and long-lasting because of the nature of the misconduct and the small size of the work force. No effort was made to ascertain the nature and extent of employee-turnover during the period prior to or after its original decision. The Board simply concluded, without any evidentiary basis, that the prejudicial impact of the misconduct had not been dissipated, and that to hold otherwise would reward the employer, putting a premium on its continued litigation. It reaffirmed its July 18, 1978, order, enforcement of which is sought in this petition.
Where an employer's misconduct taints a prior union election by adversely affecting the employees' freedom of choice, the traditional remedy, frequently characterized as the "preferred" or "superior" remedy, see NLRB v. Jamaica Towing, Inc., 602 F.2d 1100, 1104 (2d Cir. 1979); Donn Products, Inc. v. NLRB, 613 F.2d 162, 165 (6th Cir. 1980); Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1122 (7th Cir. 1973), has been to (1) vacate the election, (2) enjoin the employer from engaging in such misbehavior, (3) require him to post "contrition" notices to his employees, disavowing any future interference, and (4) direct him to give union representatives reasonable access to the employees. This is then followed by a new Board-supervised election. The issuance by the Board of a bargaining order in lieu of a cease-and-desist order is only proper if, after an objective review of all of the relevant surrounding circumstances, including the nature of the employer's misbehavior and any later events bearing on its impact on the employees, it may reasonably be concluded that the employees will be unable to exercise a free choice in a Board-supervised rerun election.
In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969), the Court held that under some circumstances the Board might find it necessary, because of the lasting adverse impact of the employer's misconduct upon the employees' freedom of choice, to require the employer to bargain directly with the union which had lost the election rather than simply to order a new election. The Court stated that in "exceptional" cases where the employer's unfair labor practices have been "outrageous" or "pervasive" a bargaining order would be justified because the coercive effects of the misbehavior would not be eliminated by the traditional remedy, 395 U.S. at 613-14, 89 S. Ct. at 1939-1940. At the opposite end of the spectrum, "minor or less extensive unfair practices ... will not sustain a bargaining order," 395 U.S. at 617, 89 S. Ct. at 1940. The Court noted that in between these two extremes there would be a group of "less extraordinary cases marked by less pervasive practices" where the Board would be called upon to "take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future." If the Board (found) "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 cards would, on balance, be better protected by a bargaining order, then such an order should issue (see n. 32, supra )," 395 U.S. at 614-15, 89 S. Ct. at 1940. The Court left to the Board the task of fashioning a set of guidelines, 395 U.S. at 612 n. 32, 89 S. Ct. at 1939, by which the impact of the unfair practices upon employee free choice might objectively be ascertained.
Certain violations have been regularly regarded by the Board and the courts as highly coercive. These are the so-called "hallmark" violations and their presence will support the issuance of a bargaining order unless some significant mitigating circumstance exists. They include such employer misbehavior as the closing of a plant or threats of plant closure or loss of employment,*fn2 the grant of benefits to employees,*fn3 or the reassignment, demotion or discharge of union adherents in violation of § 8(a)(3) of the Act.*fn4 In such cases the seriousness of the conduct, coupled with the fact that often it represents complete action as distinguished from mere statements, interrogations or promises, justifies a finding without extensive explication that it is likely to have a lasting inhibitive effect on a substantial percentage of the work force. The actual use of a "stick" in the form of a plant closure, or the resort to physical force or discharge, pose no problem of assessing credibility or unlikelihood of implementation. They are complete acts which may reasonably be calculated to have a coercive effect on employees and to remain in their memories for a long period. The prospect of unionization is not a sure safeguard against such tactics.
"... the reassignment, demotion, or discharge of union adherents will carry a message which cannot be lost on employees in the voting group. While there is some slight chance that a single 8(a)(3) violation will not be perceived as employer retribution, repeated violation will rarely if ever be misinterpreted. The impact on employees might be erased if our standard make-whole remedy could be swiftly obtained. But unfortunately, in the usual litigated case, restoration to employment comes months or years later, if at all, and thus the coercive effect of the discrimination is unlikely ever to be undone. The Board, therefore, since Gissel, has regularly issued a bargaining order where a union majority was dissipated by such tactics. See, e. g., Drives, Incorporated, 172 NLRB No. 101 and 179 NLRB 526, enfd. 440 F.2d 354 (C.A.7). J. H. Rutter-Rex Manufacturing Co., Inc., 164 NLRB 5, enfd. in part and remanded in part 415 F.2d 1133 (C.A.6), 180 NLRB 878, enfd. 434 F.2d 1318 (C.A.6)." General Stencils, Inc., 195 NLRB 1109, 1112 (1972, upon remand) (Chairman Miller, dissenting).
Similarly, the employer, by "remedying the very grievances which gave rise to the union interest, ... destroy(s) for the moment at least the employees' need for greater strength ... (so that) the employees can not be said to have been free to fairly appraise the value of unionization." Texaco, Inc. v. NLRB, supra, 436 F.2d at 525. See, in accord, NLRB v. Eagle Material Handling, Inc., 558 F.2d 160, 167 (3d Cir. 1977). As for a threat of plant closure, it may not be completed action but it "is the one serious threat of economic disadvantage which is wholly beyond the influence of the union or the control of the employees." General Stencils, supra, 195 N.L.R.B. at 1113 (Chairman Miller dissenting). However, even with respect to these "hallmark" violations, a bargaining order may be denied for lack of proof of pervasiveness, such as where the discharge of an employee was unknown to ...