Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 117spondent had retaliated against its employees' organizing effortsby discharging the entire work force and thereafter telling themthat it would be futile to continue to support the union becausethe company would go out of business before it would deal withthe union.. The majority found that the respondent's immediate, sweeping,and severe reaction to its employees' unionization was the typeof unlawful action calculated to have a powerful, lasting, andchilling effect on the employees. Although the respondent hadnotified all the employees 1 week after the discharges simply to"disregard [its] notice of termination" and that "jobs are availableand awaiting your return," the majority agreed with thejudge's fmding that the respondent's "terse" retraction of its dismissaldid not effectively repudiate its earlier unfair labor practices,citing Passavant Memorial Area Hospital, 237 NLRB 138(1978). The employees were neither compensated for the loss ofa week's wages, nor assured that the respondent would then recognizeand accept their right to engage in protected activitiesfree of the threat of future retaliatory action.The majority stated: "The angry dismissal of an entire workforce and the dire threat of plant closure require affirmative andexplicit repudiation by the Respondent." The respondent's failureto take such timely action on its own made it unlikely that employeeswould "feel sufficiently secure against the potential forretribution by the Respondent," the majority added. In these circumstances,it was unlikely that a free and fair representationelection could be conducted. The majority thus concluded thatno remedy short of an order that the respondent bargain with theunion could guarantee the employees their rights under Section7.Chairman Dotson, although agreeing that the respondent violatedSection 8(a)(3) and (1) by its mass terminations and subsequentthreats, dissented as to the appropriateness of a bargainingorder. He stated that the employees' engaging in a 4-month strikefollowing the respondent's attempt to reinstate them to theirformer jobs evidenced the lack of any chilling effect the respondent'sunlawful discharges and threats could have had on them.He noted that the respondent did not engage in any additionalunfair labor practices during the strike and that, when the workstoppage ended, it reinstated the most senior former strikers to itsreduced work force and placed the remainder on a preferentialhiring list. In Chairman Dotson's view, the respondent's attemptto allow the discharged employees to return to their jobs just 1week after their discharge and its subsequent good behavior inhonoring their protected rights softened the impact of its priormisconduct, thereby militating against the need for the impositionof extraordinary remedies such as a bargaining order.