National Labor Relations Board, Petitioner, v. Gibson Products Company of Washington Parish, La., Inc., Respondent, 494 F.2d 762 (5th Cir. 1974)

This is the second petition for enforcement of a National Labor Relations Board bargaining order entered against Gibson Products Company.¹  On the Board's first petition, this Court upheld findings that various activities of Gibson constituted unfair labor practices in violation of section 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. 158(a) (1), and enforced the Board's cease and desist order. The Court remanded the case to the Board, however, for reconsideration of whether an order requiring the Company to bargain with the Union (Local No. 390 of the Retail Clerks International Association) was an appropriate remedy in light of NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969), and NLRB v. American Cable Systems, Inc., 414 F.2d 661 (5th Cir. 1969) (American Cable I), two cases decided after the issuance of the Board's order. NLRB v. Gibson Products Co., 421 F.2d 156 (5th Cir. 1969).

Although on reconsideration the Board adhered to the prescribed remedy of ordering the Company to bargain with the Union on the finding that the facts merited such an order under Gissel and American Cable, we find an abuse of discretion in ordering such relief in the face of our second holding in American Cable, 427 F.2d 446 (5th Cir.), cert. denied, 400 U.S. 957, 91 S. Ct. 356, 27 L. Ed. 2d 266 (1970) (American Cable II), any deny enforcement.

The Supreme Court in Gissel, decided almost nine months after the Board's initial decision in this case, made clear that elections are to be preferred over bargaining orders as the means to determine employee sentiment. In laying down guidelines for the issuance of bargaining orders, the Court established three categories of unfair labor labor practices. The first category consists of 'exceptional' cases, marked by 'outrageous' and 'pervasive' unfair labor practices of 'such a nature 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.' 395 U.S. at 613-614. In a case of this character, also known as a Sinclair case (after one of Gissel's companion cases), a bargaining order may be appropriate without inquiry into union majority status.

The second category is comprised of less extraordinary cases involving less pervasive practices which nevertheless still tend to undermine majority strength and interfere with the electoral process. In such cases a bargaining order could issue if at one point the union had a majority and '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 . . ..' Id. at 614.

Finally, the Court established 'a third category of minor less extensive unfair labor practices, which, because of their minimal impact on the election machinery will not sustain a bargaining order.' Id. at 615.

In American Cable II, this Court, as in this case, had before it a second petition for enforcement after a previous remand for reconsideration of a bargaining order in the light of Gissel. Treating the unfair labor practices as a second category case, we held that the Board erred in refusing to consider proffered evidence relating to changes in the situation since the original entry of the Board's bargaining order and held its findings were therefore inadequate. The obvious thrust of this holding was that a bargaining order is beyond the Board's discretion if a fair election could be held at the time of reconsideration of the order on remand.

In remanding the bargaining order in this case for reconsideration in light of Gissel and American Cable I, this Court treated the instant case as one within the second Gissel category. It is evident that the Board made the same classification initially and that only late in the day did it view the case as governed by Sinclair, a first category case which it presumed would sustain a bargaining order on remand even though a fair election could then be held. On August 27, 1970, eight months after the remand, the Board issued a Supplemental Decision and Order, 185 N.L.R.B. 362, 75 L.R.R.M. 1055 (1970), reaffirming the determination that a bargaining order should issue. This opinion contained a paraphrase mixing both the first and second category language of Gissel.²  But the ambiguity as to the Board's classification at that point is clarified by its strong reaction against the decision in American Cable, II, a second category case. After an extensive review of Gissel, the Board concluded that American Cable II, in requiring evidence of contemporary conditions to be heard on remand, misconceived Gissel's rationale.

The Board took no steps to enforce its reaffirmed bargaining order at that time. A subsequent order entered on April 7, 1971, revealed that a petition for enforcement had been held in abeyance by the Board pending action in the Supreme Court on the Board's petition for certiorari in American Cable II. This course of action was adopted because of 'the factual similarity' between the two cases. The Supreme Court denied certiorari on December 14, 1970. 400 U.S. 957, 91 S. Ct. 356, 27 L. Ed. 2d 266 (1970). After the Supreme Court permitted American Cable II to stand, this factual similarity prompted the Board to reopen the case and remand it for an American Cable II hearing on the contemporary necessity for a bargaining order.

After the hearing and post-hearing proceedings, the Trial Examiner (now Administrative Law Judge), who had also presided over the original hearing, issued a Supplemental Decision. He found first, that the Company's unfair labor practices did not have any meaningful contemporary existence, and second, that conditions were sufficiently antiseptic for an election. Before discussing the third aspect of the Board's remand-- the appropriateness of a bargaining order-- he launched into an extensive criticism of American Cable II. The Trial Examiner than advanced for the first time in these proceedings the contention that this is a first rather than a second category case, and has been ab initio. He grounded this argument on a sentence in the Board's original decision similar to the finding the Supreme Court deemed sufficient to justify enforcement without remand of the first category bargaining order in Sinclair.³ 

Almost a year later the Board agreed with the new classification, stating in its Second Supplemental Decision and Order

we find that the instant proceeding falls within the purview of Sinclair, and that a bargaining order is the only appropriate remedy for the Respondent's unfair labor practices, regardless of whether lapse of time or other circumstances might now make a fair election possible.

199 N.L.R.B. No. 115, at 5, 81 L.R.R.M. 1499, 1500 (1972). The Board left undisturbed the Trial Examiner's findings that the Company's 1968 violations had no contemporary existence and that the present conditions were sufficiently antiseptic for a free and fair election.

These findings would preclude a bargaining order if the case were still seen as one within the second category. American Cable II bars the issuance in a second category case remanded to the Board of an order to bargain, if it appears on remand that contemporary conditions are such that a fair election could be held.

It is apparent from the foregoing chronology of this case that the Board, disagreeing with American Cable II's requirement of contemporary necessity for a bargaining order in second category cases, has simply sought to avoid it by reclassifying the case from the second to the first category.⁴  But American Cable II is the law of this Circuit and is as binding on the Trial Examiner and the Board, however great their displeasure with it, as it is on us. It is the law which all must follow until such time as the Court en banc overrules the principle⁵  or the United States Supreme Court reaches a contrary decision.

Conceding that the bargaining order should not be enforced unless the instant case falls within the first category, the Board now contends that this has been such a case ab initio. The difficulty with this characterization is that the Board has never given any findings or reasons as to why traditional remedies could not have cured the coercive effects of the unfair labor practices so that a fair and reliable election could not have been held, the sine qua non of a bargaining order in a first category case.⁶  The Board is under an obligation to articulate its reasoning and to distinguish factually similar cases with contrary results. NLRB v. Metropolitan Life Insurance Co.,380 U.S. 438, 85 S. Ct. 1061, 13 L. Ed. 2d 951 (1965). Yet the Board has merely stated that a bargaining order was the 'only available, effective remedy for substantial unfair labor practices' without any indication why less drastic remedies would not serve to achieve a fair election now or why they were inadequate for this purpose when the matter was first before the Board.⁷  For judicial review to be meaningful more is required of the Board than, in the words of American Cable II,

a litany, reciting conclusions by rote without factual explication. We believe that the questions involved in this area of labor law are far too important for such formalistic and perfunctory treatment . . .. Gissel teaches us that . . . all concerned must be particularly careful lest the principles of majoritarianism in union representation be unnecessarily frustrated by the cavalier use of bargaining orders.

427 F.2d at 449. See Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1119 (7th Cir. 1973); General Steel Products, Inc. v. NLRB, 445 F.2d 1350, 1355 (4th Cir. 1971); NLRB v. General Stencils, Inc., 438 F.2d 894, 901 (2d Cir. 1971).⁸ 

Proper findings and conclusions would have explicitly considered traditional remedies such as a cease and desist order, posting or mailing of a remedial Notice to Employees, or other remedies known to the Board, and would have articulated the Board's reasons supporting its conclusion that only a bargaining order would suffice to remedy the unfair labor practices. Perl, The New Era Begin with Gissel?, 15 Vill.L.Rev. New Era Begin with Gissel?, 15 Rill.L.Rev. 106, 111-112 (1969). The Board could have given some indication as to the difference between the case at bar and those cases where it found a bargaining order inappropriate even though seemingly similar or perhaps more serious unfair labor practices were involved.⁹  See Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1119 (7th Cir. 1973); NLRB v. General Stencils, Inc., 438 F.2d 894, 905 (2d Cir. 1971), after remand, 472 F.2d 170, 172 (1972).

The Trial Examiner, however, suggests the Board's first decision satisfied the findings requirement with the statement that a bargaining order should issue 'to remedy the violations of Section 8(a) (1) by restoring the status quo ante.' This wording, he submits, was sufficiently equivalent to the finding on which the Gissel Court relied in enforcing Sinclair that a bargaining order was necessary to repair the unlawful effect of unfair labor practices. See 395 U.S. at 615. This suggestion confuses form with substance. The question is not how close the Board came to invoking proper talismanic words or ritual phrases. The purpose of Gissel is that the Board, before taking the serious step of issuing a bargaining order, carefully examine the effect of unfair labor practices upon electoral conditions, not merely that it substitute one set of magic words for another. Carson, The Gissel Doctrine: When a Bargaining Order Will Issue, 41 Fordham L. Rev. 85, 113 (1972). Further, since the ultimate inquiry is whether a fair election can be held, the Board must also determine what effect the various traditional remedies at its disposal would have on the disturbed conditions.¹⁰ 

When the Board's reasoning is inadequate, meaningful judicial review is difficult and the normal procedure is to remand. NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 85 S. Ct. 1061, 13 L. Ed. 2d 951 (1965); see Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S. Ct. 845, 85 L. Ed. 1271 (1941). In this case, however, the Board has already had an opportunity to consider Gissel on remand. We will assume that it has said all that it has to say concerning this case. In view of the extended time span of this dispute, already in its seventh year, and the simplicity of the factual circumstances involved, we will supply the essential analysis and proceed to a final disposition, thereby avoiding needless further delay. Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1120 (7th Cir. 1973); NLRB v. Ship Shape Maintenance Co., 154 U.S.App.D.C. 186, 194 n. 23, 474 F.2d 434, 442 n. 23 (1972); see Harper & Row Publishers, Inc. v. NLRB, 476 F.2d 430, 435-437 (8th Cir. 1973).

We turn therefore to the propriety of the bargaining order. As previously noted, Sinclair bargaining orders are justified in exceptional cases marked by unfair labor practices so outrageous and pervasive that traditional remedies cannot eliminate their coercive effects with the result that a free election cannot be held. In his Supplemental Decision, the Trial Examiner found in essence that the cease and desist order removed the electoral taint occasioned by the Company's 8(a) (1) violations. After the Company had been forced by this Court to comply with the order and had posted the required Notice to Employees, a fair election became possible. If traditional remedies such as a cease and desist order and a posted notice can overcome the effect of a pattern of unfair labor practices, that pattern does not meet the definition of a first category case.

There is no explanation in the record as to why the taint of the Company's practices would not have been eliminated if the cease and desist order had been promptly complied with when first entered. If prompt compliance would have purged the taint sufficiently to permit a fair election to take place, this has not been a Sinclair case ab initio. The Trial Examiner found in his second opinion that a fair election was not possible at the time of the hearing. But this is true in any case in which the need for a traditional remedy is proved at a hearing. A fair election cannot be held until after the traditional remedies have been enforced. The Company had a right to litigate the propriety of the Board's order. It does not appear that mere delay through maintenance of the litigation, rather than compliance with the cease and desist order, was the operative factor in creating the proper atmosphere. On the record, the Board has not demonstrated that its determination to issue a bargaining order is supported by substantial evidence.

In addition, it seems doubtful that the course of conduct in this case falls within the Sinclair category as envisioned by the Supreme Court. Compare J. P. Stevens & Co. v. NLRB, 441 F.2d 514, 518-522 (5th Cir.), cert. denied, 404 U.S. 830, 92 S. Ct. 69, 30 L. Ed. 2d 59 (1971) with NLRB v. Kaiser Agricultural Chemicals, 473 F.2d 374, 380-383 (5th Cir. 1973). The Gissel Court did not inadvertently describe first category cases as 'exceptional' and the conduct they involve as 'outrageous' and 'pervasive.' The 8(a) (1) violations in this case seem to be common unfair labor practices directed at individuals without evidence of their pervasive effect.¹¹ 

This case is a difficult one. The Board's findings and conclusions leave something to be desired. The law to be applied is somewhat confused. Lurking in the background of the case is the unfair benefit the employer may have obtained through delay, and that one purpose of a bargaining order is to deter future misconduct. See Gissel, supra, 395 U.S. at 612. But when the Board issues an order to bargain at a time when employee free choice can be determined by a fair election, the remedy becomes punitive, rather than remedial. Perl, The NLRB and Bargaining Orders: Does a New Era Begin with Gissel?, 15 Vill.L.Rev. 106, 118 (1969). Inasmuch as a free election can now be held and the desires of the employees can be fairly determined, we will follow the thrust of Gissel: a fair election is the best and preferred method of determining a bargaining representative.

Enforcement denied.