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National Labor Relations Board v. Colonial Knitting Corp.

decided: July 14, 1972.


Van Dusen, Gibbons and Rosen, Circuit Judges.

Author: Van Dusen


The National Labor Relations Board (NLRB) has applied for enforcement*fn1 of its Decision and Order of January 20, 1971,*fn2 finding respondent, Colonial Knitting Corp. (Colonial), responsible for certain unfair labor practices prior to a Board-supervised consent election. The Board ordered Colonial to cease and desist from such unfair labor practices and directed the issuance of a bargaining order in light of the probable adverse effect of such practices on the election process.

During the period of time relevant to this decision, Colonial operated a plant for the knitting of yarn in Linden, New Jersey.*fn3 The plant operated on a two-shift basis and employed five men who constituted the work unit at all relevant times. In November of 1969, the International Ladies' Garment Workers' Union, AFL-CIO (Union) began an organizing campaign and by November 25 had received authorization cards from three employees. On December 3, 1969, the Union demanded recognition as the collective bargaining representative of the employees and this demand was refused by Colonial. A consent election was held on January 6, 1970, and the result was four votes against the Union and one in favor. The Union filed objections to conduct affecting the results of the election and these objections were considered in a proceeding consolidated with the unfair labor practice case.

The Board affirmed the findings of the trial examiner that Colonial had violated Section 8(a)(1) of the Act by threatening its employees that wage increases would be withheld and overtime cut back, interrogating employees as to Union sentiment, and granting wage increases before a Board held representation election. We find that there was substantial evidence on the record as a whole to support these findings.

The record clearly establishes that employees Santiago, Froilan Berrios and Luis Berrios received pay raises the day before the election was held. The finding that the grant of these wage increases on the eve of the election was intended to sway employee sentiment from the Union and thus violated Section 8(a)(1) of the Act was supported by substantial evidence.*fn4

There is also ample support in the record for the Board's finding that employee Santiago was interrogated in violation of Section 8(a)(1). Immediately following the initial demand for recognition by the Union, employee Santiago was asked by the company's vice-president whether he or any other employee had signed Union cards. Santiago was not provided with any assurances against reprisals. In the absence of such assurances, a poll by a high company official is sufficient to support the Board's finding that the polling was coercive in violation of Section 8(a)(1) of the Act.*fn5

The Board also found that employees Diaz and Froilan Berrios were threatened with the loss of promised wage increases and cuts in overtime, and that these threats violated Section 8(a)(1) of the Act. The record supports the Board's finding that Diaz was threatened by his employer with the loss of these benefits if the Union prevailed; however, our examination of the record indicates that there was not substantial evidence to support the finding that Froilan Berrios was threatened.*fn6 However, we reject respondent's contention at page 35 of its brief that the case for the Board is not supported by substantial evidence without the affidavits of Froilan Berrios (see, also, p. 952 below at n. 9).

The Board also found that Colonial had violated Section 8(a)(5) by refusing to bargain with the Union after three of the five employees in the bargaining unit had designated the Union as their collective bargaining agent. Colonial challenges this finding on the grounds that employee Santiago had revoked his authorization prior to the making of a demand to bargain upon it. We agree with the Board's finding that Santiago did not evidence his revocation with the clear and unambiguous conduct which is necessary to effect such revocations*fn7 and affirm the Board's finding of an 8(a)(5) violation.

Having found that Colonial committed the above-mentioned unfair labor practices, the Board ordered it to cease and desist from such practices. The Board also set aside the election of January 6, 1970, and issued a bargaining order rather than directing a new election. Colonial, on this appeal, challenges the Board's issuance of the bargaining order.

In NLRB v. Gissel Packing Co., 395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969), the Court authorized the issuance of bargaining orders in those situations where an employer rejects a card majority and commits unfair labor practices that tend to undermine the Union's majority and to make a fair election an unlikely possibility. Where a showing is made that the union at one point had a majority, a lesser showing of employer misconduct is required. 395 U.S. at 614.

We find that there is ample support in the record for the Board's finding "that the Respondent's unfair labor practices are so pervasive that they have the tendency to undermine majority strength and impede the election process."*fn8 In reaching this conclusion, the Board did not consider the threats allegedly made to Froilan Berrios.*fn9 However, the grant of the wage increase and the interrogation of Santiago were sufficiently coercive to meet the standard set out in Gissel.

We have considered and reject the other contentions made by respondent*fn10 and, consistent with the foregoing opinion, will grant the National Labor Relations Board's request for ...

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