JP Stevens & Co., Inc., Gulistan Division v. NLRB

• Decision Date: 22 March 1971
• Docket Number: No. 28631,29037.,28631
• Parties: J. P. STEVENS & CO., INC., GULISTAN DIVISION, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 514 (1971)

J. P. STEVENS & CO., INC., GULISTAN DIVISION, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 28631, 29037.

United States Court of Appeals, Fifth Circuit.

March 22, 1971.

COPYRIGHT MATERIAL OMITTED

W. S. Blakeney, Charlotte, N. C., for J. P. Stevens & Co., Inc., Blakeney, Alexander & Machen, Charlotte, N. C., of counsel.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Walter C. Phillips, Director, N.L.R.B., Region 10, Atlanta, Ga., Allen H. Feldman, Atty., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Nancy M. Sherman, Atty., N.L.R.B., for appellee.

Cornelius J. Collins, Jr., Patricia E. Eames, Gen. Counsel, New York City (Textile Workers Union of America, AFL-CIO), B. Avant Edenfield, Statesboro, Ga. (Don Hughes and others), Charles H. Brown, Statesboro, Ga., Allen, Edenfield, Brown & Franklin, Statesboro, Ga., of counsel (Mildred G. Bailey and others, Employees), for intervenors.

Before THORNBERRY, GOLDBERG, and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

J. P. Stevens & Company, Inc., unchastened by and impervious to judicial homilies, once again seeks liberation from a National Labor Relations Board order. Taking the opposite position, the Textile Workers Union of America, AFL-CIO, entreats us to broaden the Board's order to combat Stevens' known predisposition to violate the law. Rejecting both of these positions, we enforce the Board's order in full.

I.

The Textile Workers Union (hereinafter referred to as the Union) began its organizing campaign at J. P. Stevens' Statesboro, Georgia, plant in January of 1968. The Union made intensive efforts to secure authorization cards from the employees, efforts which met with determined resistance on the part of Stevens. On February 17, the Union wrote Stevens a 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 representative of the employees in that unit; and stressed that if the Company had any doubts of the majority, the Union would submit the authorization cards in its possession to a disinterested third party. Stevens replied to the Union letter by stating that it had indications that a majority of its employees did not want union representation; that it did not wish a 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 election petition with the Board, and an election was scheduled for April 22 and 23, 1968. Prior to that election, on March 18, and again on April 20, the Union affirmed that its recognitional demand was a continuing one and invited Stevens to forego the election proceedings.¹ Stevens' officials declined these invitations.

On April 22 and 23, 1968, the Board conducted 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 unnecessary to consider the Union's remaining objections," set the election aside because the Company had failed to submit an employee eligibility list as mandated by Excelsior.² The Union then filed unfair labor practice charges before the Board.³

In its unfair labor practice charges the Union alleged (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;⁴ (2) that Stevens' discharges of three employees and its refusal to hire an applicant for employment were in violation of section 8(a) (3) of the Act;⁵ and (3) that Stevens' refusal to bargain with the Union following the recognitional demands was in bad faith and in violation of section 8(a) (5) of the Act.⁶ These allegations were denied by Stevens and by 117 employees 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.⁷ Moreover, 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.

II.

Stevens first claims that the record is devoid of substantial evidence in support of the Board's finding of section 8(a) (1) and section 8(a) (3) violations. We disagree. The record reveals, and the Board found, that Stevens engaged in an extensive campaign of "classic, albeit crude, unlawful labor practices" to defeat the Union.⁸ 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 reduction of work, extensive discharges, and even the closing of the plant. See NLRB v. Gissel Packing Co., supra, 395 U.S. at 617, 89 S.Ct. 1918; Textile Workers Union v. Darlington Mfg. Co., 1965, 380 U.S. 263, 274 n. 20, 85 S.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 372. Company officials engaged in blatant surveillance of Union activities. See NLRB v. Southland Paint Co., 5 Cir. 1968, 394 F.2d 717, 719-720; Hendrix Mfg. Co. v. NLRB, 5 Cir. 1963, 321 F.2d 100. Stevens' supervisors interrogated employees with regard to Union activities under circumstances that tended to be coercive and intimidating, see NLRB v. Varo, Inc., supra, 425 F.2d at 297-298; Ridgewood Management Co. v. NLRB, 5 Cir. 1969, 410 F.2d 738, cert. denied, 396 U.S. 832, 90 S.Ct. 87, 24 L.Ed.2d 83 and made promises of benefits calculated to undermine Union strength, see NLRB v. Varo, Inc., supra, 425 F.2d at 298-299. During a critical juncture in the Union campaign the Company granted certain benefits 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 Cir. 1969, 406 F.2d 1280, 1283. Finally, when the Union organizing effort began, the Company breathed new life into a long dormant rule prohibiting all solicitation at the plant, 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 substantial evidence are findings of the Board that Stevens violated section 8(a) (3) both before and after the representation election by discriminatorily discharging 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. denied, 389 U.S. 839, 88 S.Ct. 64, 19 L.Ed.2d 102; NLRB v. Albritton Eng'r. Corp., 5 Cir. 1965, 340 F.2d 281, cert. denied, 382 U.S. 815, 86 S.Ct. 31, 15 L.Ed.2d 62.

We therefore hold that there is substantial evidence in the record as a whole to support the Board's finding of section 8(a) (1) and section 8(a) (3) violations, see Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, and we enforce those portions of its order designed to eradicate the violations through what have been termed "traditional remedies."⁹

III.

The Board, however, went beyond its traditional remedies and ordered Stevens to bargain with the Union. Recognizing that a rerun election is "the preferred method for the determination of whether employees shall be organized collectively," NLRB v. Gissel Packing Co., supra, 395 U.S. at 603, 89 S.Ct. at 1934, the Board here concluded that a bargaining order was necessary to effectuate the purposes of the Act.

In determining whether to enforce the Board's bargaining 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-conducted election, may issue under certain special circumstances. Balancing the sometimes conflicting goals of deterring employer misbehavior and effectuating employee free choice, the Court found two circumstances which would justify the bargaining order remedy. First, even where a union has never demonstrated majority support in an appropriate unit, the Board may issue a bargaining order where the employer unfair labor practices are so "outrageous" and "pervasive" that their "`coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.'" NLRB v. Gissel Packing Co., supra, 395 U.S. at 613-614, 89 S.Ct. at 1940, 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...