American Art Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1969

179 N.L.R.B. 907 (N.L.R.B. 1969)

AMERICAN ART INDUSTRIES, INC.
American Art Industries, Inc. and General Sales
Drivers and Allied Employees, Local Union No.
198, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America . Cases 12-CA-3577 (1-2) and
12-CA-3697 (1-2)
December 5, 1969
SUPPLEMENTAL DECISION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On July 31 , 1967, the National Labor Relations
Board issued its Decision in Case 12-CA-3577(1-2)'
finding that the Respondent had violated Section
8(a)(1), (3), and (5) of the National Labor Relations
Act. On March 20, 1968, the Board issued a
Decision in Case 12-CA- 3697 ( 1-2)2 finding that the
Respondent had committed violations of Section
8(a)(4) and ( 1) of the - Act. In both Decisions, the
Board ordered the Respondent to cease and desist
from the conduct which it found constituted
violations of the Act and to take certain affirmative
action . Thereafter , on September 5, 1969, the
United States Court of Appeals for the Fifth Circuit
entered its order in these cases ,' enforcing the
Board 's 8(a)(1), (3 ), and (4) findings ; and affirming
the Board ' s finding that the Union , on July 22,
1966, represented a majority of the employees in the
appropriate bargaining unit . However , the court
remanded for further adjudication the Board's
finding that the Respondent violated Section 8(a)(5)
and its order to bargain , in the light of the Supreme
Court' s decision in N.L . R.B. v. Gissel Packing
Company ,4 and the Fifth Circuit Court 's decision in
N.L.R.B. v. American Cable Systems, Inc.'
Having accepted the remand , the Board, on
September 23, 1969 , issued a Notice granting
permission to the parties to submit statements of
position . Such statements were duly filed by the
Respondent and the General Counsel.
Pursuant to the provisions of Section 3(b) of the
Act, as amended , the Board has delegated its powers
in connection with these cases to a three-member
panel.
The Board has considered the above-cited Court
decisions , the statements of position , and the entire
record in these cases , and, for the reasons set forth
below , reaffirms its original finding that the
Respondent violated Section 8(a)(5) and ( 1) of the
Act and that a bargaining order is necessary to
effectuate the purposes of the Act.
1166 NLRB No 109.
1170 NLRB No. 70.
'N.L.R B v. American Art Industries , Inc, 415 F 2d 1223 (C.A 5)
1395 U.S.575,
'414 F 2d 661 (C A 5).
907
The Board and the Court of Appeals have found
that the Respondent during the period July 13
through 19, 1966, violated Section 8(a)(3) by
discriminatorily discharging four employees because
of their organizational activity on behalf of the
Union; and violated Section 8(a)(1) by coercively
interrogating its employees, threatening to close its
plant if a union was brought in, and promising
benefits to undermine the Union's organizing drive.
The Board and the Court of Appeals have also
found that the Respondent on November 23 and 29,
1966, violated Section 8(a)(4) and (1) by discharging
two employees because they had testified on behalf
of the General Counsel in a Board proceeding. In
addition, the Board found that the Respondent's
insistence upon an election was not predicated on a
good-faith doubt as to the Union's majority status
in the light of its serious unfair labor practices, and
that the Respondent's refusal to bargain thus
violated Section 8(a)(5). The Board, therefore,
issued a bargaining order.
In view of the Supreme Court's opinion in Gissel,
supra, and the Court of Appeals' opinion in
American Cable, supra, we do not rely upon our
earlier finding that the Respondent violated Section
8(a)(5) by refusing to bargain with the Union in the
absence of a good-faith doubt of the Union's
majority status. We find, rather, that the
Respondent's refusal to bargain with the Union
violated Section 8(a)(5) because the series of serious
unfair labor practices committed tended to
undermine the Union's majority status. The coercive
effects of the Respondent's continuing serious unfair
labor practices cannot be eliminated by traditional
remedies, and are of such a nature as to tend to
make a fair election improbable, if not impossible.
Under these circumstances, the purposes of the Act
are better effectuated by reliance on the employees'
desires as expressed by signed authorization cards
than on the results of any election which might be
directed. We also find that the Respondent's
extensive violations of Section 8(a)(3) and (1)
contemporaneously with its refusal to bargain, and
in conjunction with the Respondent's subsequent
8(a)(4) violations, demonstrate the likelihood of the
recurrence of unfair labor practices in the future,
and render any traditional remedy inadequate
assurance of a fair election. We hold this view,
assuming the truth of the Respondent's unproved
allegation that the Union no longer represents a
majority of employees.' To hold otherwise would be
to reward the Respondent for its commission of
unremedied and continuing unfair labor practices of
an extensive and serious nature, and calculated to
frustrate employee rights. N.L.R.B. v. Gissel
Packing Company, supra. See also, N.L.R.B. v.
Katz. 369 U.S. 736, 748, footnote 16; N.L.R.B. v.
P. Lorillard Company, 314 U.S. 512, both cited in
Gissel with approval, for the proposition that a
"We observe that many or all of the unfair labor practice strikers, whom
179 NLRB No. 162
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining order is appropriate despite a subsequent Therefore, we find that the bargaining order
loss of union majority.' previously issued to remedy the Respondent's unfair
labor practices is appropriate to remedy its
the Union represented , may still retain their employee status , despite the violations of Section 8(a)(5) as well of Section
Respondent 's attempts to replace them . We note that our un remedied 8(a)(1), (3), and (4) of the Act, and we affirm it.
order in the instant case requires the Respondent , upon application, , to
reinstate such strikers , and, if necessary to provide jobs for them, to
discharge their replacements.
'See also , Horace Simmons d/b/a Vaca Valley Bus Lines, 179 NLRB No 107, G.P D. Inc, 179 NLRB No 31.