The National Labor Relations Board petitions for enforcement of its order which, among other things, requires respondent to bargain with Local 280 of the International Ladies' Garment Workers Union, AFL-CIO, retroactive to July 10, 1979. Enforcement granted, except with respect to that portion which orders retroactive bargaining, enforcement of which is denied.
Mansfield, Van Graafeiland and Friedman,*fn* Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
The National Labor Relations Board petitions this Court under section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160 (e) (1976), for enforcement of the Board's order of May 18, 1982. The Board ordered respondent, Marion Rohr Corporation, to cease and desist from certain unlawful practices, to recognize and bargain collectively with Local 280 of the International Ladies' Garment Workers Union, AFL-CIO, retroactive to July 10, 1979, to expunge certain incidents from its records, to post a notice at its plants, and to report to the Regional Director concerning its compliance. Respondent contends that enforcement should not be granted and that the Board's bargaining requirement constitutes too extreme a remedy under the circumstances of this case. For the reasons hereinafter set forth, we grant enforcement of the order except with respect to that portion which orders retroactive bargaining.
Respondent manufactures ladies' undergarments at two plants in Hornell, New York. In March, 1979, the Union began a campaign to organize respondents' production and maintenance employees, and, on July 9, 1979, demanded recognition. Believing that the Union did not have majority support, respondent refused recognition. On July 24, 1979, the Union filed charges, asserting, among other things, that respondent had violated section 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), by refusing to bargain. The Board issued a complaint on August 29, 1979, and an amended complaint on August 14, 1980. A hearing was held on December 2, 3 and 4, 1980, and the Administrative Law Judge issued his decision on April 2, 1981. Respondent filed its exceptions to the ALJ's decision on May 11, 1981, and the Board's decision and order was filed over a year later on May 18, 1982. Briefing on the Board's petition for enforcement was completed on March 18, 1983, and the matter was argued in this Court on April 12, 1983.
The Board now agrees that a majority of employees had not signed union authorization cards on July 9, 1979, and the alleged section 8(a)(5) violation, which was rejected by the ALJ and the review panel, is not pressed in this proceeding. The Board did find, however, that respondent committed several violations of sections 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3). These violations merit only brief discussion.
In several talks to employees by respondent's plant manager, David Schlossberg, between April 27, 1979 and May 8, 1979, he stated that he was aware of the Union's activities and knew of five employees who were involved. He also made a number of comments which could have been construed as threats of lost benefits and less favorable working conditions if the plants were unionized.
On another occasion, Schlossberg called an employee into his office and questioned her about employees' organizational activities. When two other employees told Schlossberg that they had signed union cards, he assured them that they would not be fired but stated that the employees who were distributing union material and soliciting signatures would be.
On July 12, 1979, Schlossberg fired an employee, Lucinda Hurlburt, who had been hired only two days earlier, because she had a blank union card in her possession. He also questioned another employee, Carole Pawlica, as to whether she had supplied Hurlburt with the card. Upon receiving an affirmative answer, Schlossberg told Pawlica she was "on report" or "on notice". Within two hours of Hurlburt's firing, Schlossberg contacted her, apologized, and rehired her.
Finally, in March, 1980, when Schlossberg hired Debra Axtell as a temporary employee, he stated to her that if he learned that she had become involved with the Union, her position would be "very temporary".
Although respondent disputes many of the factual findings and their effect as violations of sections 8(a)(1) and (3), there is sufficient support for both in the record. However, the Board has not furnished adequate support for that portion of its order which directs the employer to bargain retroactively to July 10, 1979.We write once again on this subject only to make clear our unwillingness to enforce a bargaining order in the absence of a reasoned factual analysis by the Board as to why a fair election cannot be held.
The clearly preferred remedy for violation of the Act is an election. NLRB v. Gissel Packing Co., 395 U.S. 575, 602-03, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969); J.J. Newberry Co. v. NLRB, 645 F.2d 148, 153-54 (2d Cir. 1981); Grandee Beer Distrib., Inc. v. NLRB, 630 F.2d 928, 934 (2d Cir. 1980). This preference reflects the important policy that employees not have union representation forced upon them when, by exercise of their free will, they might choose otherwise. See National Labor Relations Act § 7, 29 U.S.C. § 157; NLRB v. General Stencils, Inc., 472 F.2d 170, 175-76 n.5 (2d Cir. 1972); NLRB v. World Carpets of New York, Inc., 403 F.2d 408, 412 (2d Cir. 1968). A bargaining order is justified only when the Board demonstrates that an election is unlikely to reflect the uncoerced preference of the bargaining unit. NLRB v. Chester Valley, Inc., 652 F.2d 263, 272 (2d Cir. 1981); NLRB v. Amber Delivery Serv., Inc., 651 F.2d 57, 70-71 (1st Cir. 1981); NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988, 996 ...