This case is before the court upon the application of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (“NLRA”), for enforcement of its order issued against respondents, Gibraltar Industries, Inc. and Case, Inc., dated August 24, 1978, and reported at
This order was based, in part, upon a finding that Gibraltar had violated Section 8(a)(1) of the NLRA by creating the impression that employees’ union activities were under surveillance, coercively interrogating employees about union activities and threatening plant closure if the ILGWU succeeded in its organizing campaign, and otherwise interfering with the employees’ right to organize. The Board also found that Gibraltar had violated Section 8(a)(5), (3) and (1) by failing to bargain in good faith on wages with the ILGWU, closing its Olive Hill plant and transferring work to a facility located in New York, and insisting that any negotiations regarding the effects of the closure take place in New York, over the phone or through the mail.
At the same time, the Board ordered Case to cease and desist from interfering with its employees’ Section 7 rights. The Board required Case to reinstate a discharged employee, Anita Wilburn, with back pay, finding that her termination had been motivated by anti-union animus. All references in her employment record regarding alleged poor work were to be expunged. In addition, the results of a union representation election which Upper South (a local of the ILGWU) had lost were to be reopened and retabulated. Even if the Union did not carry a majority, Case was to bargain collectively with Upper South.
This order was based upon a finding that Case had violated Section 8(a)(1) by threatening its employees with loss of work if the Union prevailed in the election, interrogating employees about their Union activities, and coercing other employees into campaigning against the Union. The Board also found that Upper South had attained majority status in an appropriate unit and that Case’s refusal to recognize and bargain with Upper South violated Section 8(a)(5) and (1) of the NLRA.
Three major issues are presented by this appeal. First, did Gibraltar fail to bargain in good faith with the ILGWU and was its subsequent plant closure unlawful under the NLRA? Second, did Case unlawfully discharge Anita Wilburn because of her union support? Third, did Case engage in unlawful anti-union activities, thereby prejudicing the representation election and requiring a bargaining order? Under the law;
“[s]ubstantial evidence is more than a mere scintilla.” . . . [I]t “must do more than create a suspicion of the existence of the fact to be established.... it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.”
Universal Camera Corp. v. NLRB,
I.
Gibraltar manufactures sleeping bags and other quilted materials at a facility located in Brooklyn, New York. In early 1976, Gibraltar began manufacturing sleeping bags in a facility located in Olive Hill, Kentucky. Nevertheless, the lions’ share of Gibraltar’s business remained in New York, where employees had been represented by the ILGWU and the Amalgamated Clothing Workers of America.
Gibraltar’s Olive Hill plant consisted of several sewing and quilting machines operated by seventeen employees. During the summer of 1976, the ILGWU began an organizational effort at Olive Hill. On October 12, 1976, the ILGWU was certified as the exclusive collective bargaining representative of a unit of production, maintenance, shipping and receiving employees, pursuant to an election held on October 1, 1976.
Case manufactures clothing at a facility located in Olive Hill. It regularly performs subcontract work for Gibraltar. In 1976, Case employed approximately 200 workers. Early that year, Upper South, a local division of the ILGWU, began an organizational effort at the Case plant. Authorization cards were collected and an election was held on November 16, 1976. The employees east ninety-four votes for Upper South and ninety-seven votes against; nine ballots were challenged on the ground that the employees were not members of the appropriate unit.
II.
The Board and the Union contend that Gibraltar failed to negotiate in good faith after the ILGWU had been certified as the exclusive bargaining representative of the garment workers at Gibraltar’s Olive Hill plant. The Union presented a contract to Gibraltar containing approximately thirty-seven major provisions. Although agreement was had on nearly thirty provisions, Gibraltar and the Union failed to agree on certain “economic items” which included wage rates, overtime policy, piece-work rates, and health care benefits. Contract negotiations lasted over a two month period; however, there were only two actual negotiating sessions. The course of events is summarized in the margin.
A.
Upon a thorough review of the record as a whole, we cannot find substantial evidence to support the Board’s findings. First, Gibraltar’s pre-election statements and actions were not violative of the NLRA and do not demonstrate a hostile attitude toward the Union. Rather the record shows that Gibraltar’s management viewed unionization as a prelude to increased wages and costs which would in turn prevent the Olive Hill plant from turning a profit. Gibraltar operated a much larger plant in New York, and Mr. Foreman, the president of Gibraltar, believed the Olive Hill work could be performed in New York if a profit could not be earned in Olive Hill. As evidenced by the entire record, Mr. Foreman’s attitude was that of a rational businessman concerned about minimizing costs, a particularly relevant concern for a business that is involved in government contracts.
There was no evidence of any personal dislike for unions on Mr. Foreman’s part; in fact, Gibraltar was unionized in New York. The record indicates that the company had a history of relationships with both the ILGWU and the Amalgamated Clothing Workers in New York.
Likewise there is no evidence that certain remarks of a subordinate supervisor created an atmosphere of surveillance at the plant. The suspect statements were abbreviated and ambiguous, occurred only twice, and were made privately to one other employee. Furthermore, we find no evidence that Mr. Foreman threatened plant closure or loss of work if the employees unionized; rather, Mr. Foreman’s informal comments described the effect of a negotiation stalemate and possible strike on plant operations. In this particular instance, his statements did not transgress the free speech limitations articulated in NLRB v. Gissel Packing Co.,
The Administrative Law Judge took notice of a local newspaper article wherein Mr. Foreman was quoted as saying he would not be forced by anyone to do anything regarding the operation of the Olive Hill plant. At the administrative hearing, the reporter who interviewed Foreman was uncertain about the conversation and admitted that he had not reported the full context of Foreman’s comments. Even if the article is accurate, it is at best ambiguous. The article provides no evidence that Foreman refused to negotiate, but only that he would not be told how to operate his company. These statements followed upon the heels of negotiations during which the company opposed union involvement in setting piece-work rates for government contract bids, in itself not an unreasonable bargaining position.
Finally, the record clearly demonstrates that Gibraltar negotiated and eventually agreed with the Union on many proposals. The Union requested and the company provided information on wage rates, job classifications, vacation policies and benefit programs. Gibraltar even made advantageous
B.
Once negotiations came to an impasse, Gibraltar could temporarily close the Olive Hill plant for bargaining reasons. American Ship Building Co. v. NLRB,
However, the Board also found that Gibraltar had failed to negotiate with the Union regarding the effects of closing the Olive Hill plant. Upon review of the record, we believe Gibraltar stood ready and willing to negotiate regarding the effects of its decision to close the Olive Hill plant. On December 20th, Gibraltar wrote Mr. Janis, the principal Union negotiator, expressing a willingness to discuss effects. Given the circumstances, Gibraltar’s desire to pursue discussions in New York does not detract from its expressed willingness to negotiate. Since the Olive Hill plant was closed, and both the Union and Gibraltar had their headquarters in New York, we see nothing unlawful or unreasonable with Gibraltar’s request. As we read the record, the Union has failed to pursue Gibraltar’s suggestion and in fact, has made little or no effort to discuss effects associated with the Olive Hill plant closure. See NLRB v. Royal Plating & Polishing Co.,
The Union also claimed Gibraltar violated its duty to bargain by failing to supply information on the company’s costs, profits and losses, customer orders and cancellations, and comparative data on the efficiency of the New York and Olive Hill plants. Union representative Janis requested this information by letter after the Olive Hill plant had been closed. Gibraltar refused to comply with this request, asserting that the information was irrelevant to discussions on the effects of the Olive Hill plant closure.
In NLRB v. Truitt Manufacturing Co.,
Good faith bargaining necessarily requires that claims made by either bargainer should be honest claims. This is true about an asserted inability to pay an increase in wages. If such an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy.
However, the Court did not establish a per se rule:
*1096 We do not hold, however, that in every case in which economic inability is raised as an argument against increased wages it automatically follows that the employees are entitled to substantiating evidence. The inquiry must always be whether or not under the circumstances of the particular case the statutory obligation to bargain in good faith has been met.
[I]f the requested data is relevant and, therefore reasonably necessary to a union’s role as bargaining agent in the administration of a collective bargaining agreement, it is an unfair labor practice within the meaning of Section 8(a)(5) of the Act for an employer to refuse to furnish the requested data. (Emphasis supplied).
See also NLRB v. Rockwell-Standard Corp.,
At no time during the two month period prior to the Olive Hill plant closure did the Union request information on Gibraltar’s profitability. Only after the two parties reached impasse and Gibraltar lawfully ceased its Olive Hill operation did the Union request financial and wage information. Yet, at this point, the information requested was not relevant to discussions on the effects of the Olive Hill plant closure. Since Gibraltar was under no absolute obligation to negotiate with the Union on its decision to close the Olive Hill plant, First National Maintenance Corp., supra; Fibreboard Paper Products Corp. v. NLRB,
III.
A.
As for Case, based upon our review of the entire record, substantial evidence supports some but not all of the Board’s unfair labor practice determinations.
We do not find substantial evidence to support the Board’s finding that Gene Case, the president of the company, coercively interrogated his employees in violation of the NLRA. Mr. Case’s inquiries into indiviidual employee sentiment and opinion on the subject of unionization were sporadic, occurred in the general work area, and had no discernible effect on employee actions or attitudes. The AU inferred ill-will toward Upper South and individual employees from these isolated events. Such inferences are not supported by the record. Moreover, there was insufficient evidence that Mr. Case knowingly utilized plant supervisors to put pressure on individual employees.
On the other hand, there is substantial evidence for the Board’s conclusion that Case had committed an unfair practice by interfering with the union representation election. Mr. Case requested Gibraltar’s president, Mr. Foreman, to speak to Case employees about the election procedures. This, in itself, was not improper. Foreman visited the Case plant on three separate occasions to explain election procedures to the same group of employees. One speech occurred in September and another in November, approximately two weeks before the election. A third speech was given the day before the election. However, the evidence demonstrates that Foreman instructed the Case workforce on more than elec
[A]n employer is free to communicate to his employees any of his general views about unionization or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal of force or promise of benefit.” He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control
Gissel, supra,
B.
As for Anita Wilburn, we have reviewed the record and find substantial evidence to support the Board’s finding of a discriminatory discharge. As noted by the ALJ, Wilburn’s work at the Case plant had been satisfactory; in fact, she had been working at Case for approximately six months without any complaint as to the quality of her performance. When Wilburn returned from a period of maternity leave, she became active in the Upper South unionization effort. Mr. Case and another supervisor asked Wilburn about her feelings toward the company and union. We do not find these questions to be unlawful in themselves. Yet, as noted by the ALJ, it was only after Wilburn continued to express her support for the union in the upcoming election (which included wearing a T-shirt which read “Dear Gene: If you bug me, the government will get thee”) that complaints about her work began to materialize. In fact, a few days after Wilburn refused to divulge who had printed the T-shirt she received her first warning. Within a month Wilburn had rapidly received a series of warnings, was suspended, and finally was discharged.
When the record establishes a prima facie case that “the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.” NLRB v. Great Dane Trailers, Inc.,388 U.S. 26 , 34 [87 S.Ct. 1792 ,1797,18 L.Ed.2d 1027 ] ... (1967).
NLRB v. Armcor Industries, Inc.,
C.
Finally, we must determine whether the Board’s bargaining order is appropriate on the record before us. Case has asserted before the ALJ and on appeal that the authorization cards signed by Case employees were invalid since the Union procured these cards by misrepresenting their purpose. We conclude that substantial evidence supports the ALJ’s rejection of this claim. In Gissel the Supreme Court stated:
There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and*1099 then telling him that the card will probably be used first to get an election.
Gissel, supra,
Nevertheless, as we stated in Donn Products, Inc. v. NLRB,
The remarks made by Mr. Foreman to Case employees at the three separate meetings do not, on the record before us, rise to the level of an “exceptional case” involving “outrageous and pervasive” conduct.
However, even if these speeches and the improper discharge tended to impede the election process and fall within the second category of unfair labor practices, such unfair practices must be considered “in terms of their past effect on election conditions and the likelihood of their recurrence in the future.” Gissel, supra,
In light of the general and highly desirable practice in industrial relations of selecting bargaining representatives through traditional election processes, a rule requiring the Board to set forth a reasoned analysis justifying a bargaining order under Gissel is salutary.
Armcor, supra,
The Board made no findings or detailed analysis as to the residual impact or continuing effect, or the likelihood of recurrence, of any of the unfair labor practices .... [C]ourts are not required to enforce bargaining orders based on conclusory statements unsupported by sufficient facts.
Donn Products, supra,
The lack of analysis regarding the residual impact of the unfair labor practices is fatal to the bargaining order directed to Case, especially where we have found that the record does not support many of the Board’s unfair labor practice determinations. In these circumstances, we believe the purposes of the NLRA and the stability of industrial relations will be served best not by a bargaining order, but by the union seeking another election if so desired. See . Donn Products, supra. Our decision to uphold the unfair labor practice charges, based upon Mr. Foreman’s pre-election remarks and Anita Wilburn’s unlawful discharge, as well as the passage of time, should not only deter any possible efforts to subvert the election process, but should fully remove any taint from the prior violations.
Notes
. October 19, 1976 — The Union delivers its contract proposal to Gibraltar, containing thirty-seven provisions. Gibraltar requests time to study the proposal.
October 27, 1976 — The Union and Gibraltar meet and begin negotiations. Agreement is obtained on numerous provisions, but no wage increases.
November 1, 1976 — Gibraltar writes the Union regarding additional suggestions and acceptable provisions but remains adamant on wage increases.
December 9, 1976 — The Union and Gibraltar again meet, after Gibraltar has laid off employees. Gibraltar expresses its willingness to sign the contract as then negotiated, incorporating existing wage and benefit levels. It suggests a two-year contract with further negotiations after the contract expires. The Union rejects this proposal.
December 17, 1976 — Gibraltar contacts the Union indicating no changes in wages are possible. No agreement is reached.
December 20, 1976 — Gibraltar writes the Union informing it of the decision to close the Olive Hill plant.
December 21, 1976 — The Union writes Gibraltar requesting a negotiating session and additional discussions on the effects of the plant closure.
December 28, 1976 — Gibraltar writes the Union proposing to discuss effects in New York.
January 6, 1977 — The Union writes Gibraltar suggesting a meeting in Kentucky or other convenient place to discuss effects and requesting information on profits, losses, and other eco
January 17, 1977 — Gibraltar writes the Union refusing to supply information and again suggesting a meeting in New York or negotiations over the phone or through the mail.
. Although we have upheld the Board’s determination that Wilburn was illegally discharged, her discharge did not occur until after the election.