American Cable Systems, Inc.

National Labor Relations Board - Board Decisions

Dec 3, 1969

179 N.L.R.B. 846 (N.L.R.B. 1969)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Cable Systems , ` Inc. and Communications
Workers of America, AFL-CIO. Cases
26-CA-2229 and 26-RC-2447
December 3, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On October 24, 1966, the National Labor
Relations Board issued its Decision and Order in the
above-entitled proceeding,' finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices within the meaning of
Section 8(a)(l.), (3), and (5) of the National Labor
Relations Act, as amended, and ordering the
Respondent to cease and desist therefrom and to
take certain affirmative action including, inter alia,
an order that the Respondent bargain with the
Union upon request.
Thereafter, the United States Court of Appeals
for the Fifth Circuit' issued a decision," enforcing the
Board's order, in part, but denying enforcement in
part and remanding the instant proceeding to the
Board for reconsideration of the propriety of the
bargaining -order and the 8(a)(5) finding in view of
the Supreme Court's opinion in N.L.R.B. v. Gissel
Packing Company, 395 U.S. 575. The Board
accordingly notified the parties on August 18, 1969,
that they might file statements of position.
Statements of position have been filed by the
Respondent, the Charging Party, and the General
Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National -Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board, having reviewed the entire record in
this case pursuant to the Court's remand, including
the statements of position, makes the following
additional-findings and conclusions:
In its original Decision the Board made findings,
which the Fifth Circuit thereafter affirmed, that: (1)
the 'Respondent violated Section 8(a)(3) of the Act
1161 NLRB 332.
'N.L R.B v American Cable Systems , Inc, 414 F 2d 661 (C A 5)
by discharging two employees; (2) the Respondent
violated Section 8(a)(l) of the Act by engaging in
interrogations, threats, and promises of benefit, all
subsequent to the filing of the election petition in
this case but prior to the election herein; and (3) the
Union here involved represented a majority of the
employees in an appropriate unit as evidenced by
authorization cards. In its original Decision the
Board also found that the Respondent's conduct
interfered with the election and that the
Respondent's refusal to bargain with the Union was
in bad faith, and thus violative of Section 8(a)(5) of
the Act.
Without relying on our earlier finding that the
Respondent acted in bad faith in refusing to bargain
with the Union as the majority representative of its
employees in an appropriate unit, we now find that
the Respondent's violations of Section 8(a)(1) and
(3) of the Act, as summarized above, not only
precluded a fair election, but were of such pervasive
and aggravated character as to warrant the finding,
which we now make, that an order directing the
Respondent to bargain with the Union is necessary
to repair their unlawful effects.3 The aforementioned
conduct has undermined the Union's majority, and
caused an election to be a less reliable guide to the
employees' free choice than the signed authorization
cards by which they designated the Union to
represent them. We find, accordingly, that by
refusing the Union's request and engaging in the
aforesaid unfair labor practices, the Respondent
violated Section 8(a)(5) of the Act and that an order
requiring the Respondent to recognize and bargain
with the Union is appropriate to remedy its
violation of that section, as well as to remedy the
other unfair labor practices found.
SUPPLEMENTAL ORDER
Based on the foregoing, and the entire record in
this case, the National Labor Relations Board
hereby affirms its Order issued in this proceeding on
October 24, 1966.
'The Respondent contends that regardless of the effects which its unfair
labor practices may have had upon the possibility of a rerun election at the
time this case was originally considered by the Board, the intervening years
have brought about a complete employee turnover and thus a free election
is now possible and should constitute the Board's remedy in this case. We
reject such an approach. Cf G P D , Inc, 179 NLRB No 31, Horace
Simmons d/b/a Vaca Valley Bus Lines, 179 NLRB No 107, and cases
cited therein See also, N L R B v L B Foster Company, 418 F 2d I
(C.A 9)
179 NLRB No. 149