Black Angus of Lauderhill, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1975

220 N.L.R.B. 976 (N.L.R.B. 1975)

976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Black Angus of Lauderhill, Inc. and Hotel, Motel,
Restaurant Employees & Bartenders Union, Local
Union No. 339 , AFL-CIO. Cases 12-CA-5977 and
12-CA-6026
September 30, 1975
SUPPLEMENTAL DECISION AND ORDER
On September 24, 1974, the Board issued a Deci-
sion and Order in the above-entitled proceeding' in
which the Board adopted the Administrative Law
Judge's findings that Respondent committed viola-
tions of Section 8(a)(1) and (3) and that a bargaining
order was warranted. However, the Board for the
reasons stated in the majority 's decision in Steel-Fab,
Inc.,' did not adopt the finding that Respondent had
violated Section 8(a)(5) and determined that the bar-
gaining order would be entered on the date our deci-
sion issued as a remedy for the serious unfair labor
practices found to have been committed by Respon-
dent.
On May 6, 1975, the Board issued a Notice 3 to the
parties that it had decided, sua sponte, to reconsider
its Decision and Order, particularly with respect to
the impact of the Board's actions comporting with
Steel-Fab, Inc., on the unfair labor practice strike
finding in this case. Both the General Counsel and
Respondent filed briefs on reconsideration.
Subsequently, the Board issued its decision in
Trading Port, Inc.,4 in which it reexamined its policies
vis-a-vis the fashioning of bargaining order remedies
as set forth in Steel-Fab, Inc., and in the Supreme
Court's decision in N.L.R.B. v. Gissel Packing Co.,
Inc.5 Upon reexamination of those policies, the
Board majority concluded that where an employer's
misconduct gives rise to a bargaining obligation, that
obligation commences as of the time the employer
embarked on a clear course of unlawful conduct or
engaged in sufficient unfair labor practices which un-
dermined the union's lawfully established majority
status and subverted our election process.
Upon reconsideration of the entire record, includ-
ing the briefs of the parties, we have decided to reaf-
firm the Administrative Law Judge's rulings, find-
ings, and conclusions adopted in our previous
'213 NLRB 425 ( 1974).
2 212 NLRB 363 (1974). For the reasons stated in his dissent in Steel-Fab,
Inc., Member Fanning would have found the violation of Sec . 8(a)(5) here,
as did the Administrative Law Judge.
3 Not published in Board volumes.
4 219 NLRB No. 76 ( 1975). Member Fanning concurring based upon his
interpretation of N.L. R.B. v. Gissel Packing Co ., Inc., 305 U . S. 575 ( 1969),
that a union may establish its exclusive representative status through the use
of authorization cards where , as here, an employer makes the holding of a
fair election improbable as a consequence of its unfair labor practices.
6 Ibid.
Decision and, additionally, to adopt her findings and
conclusions that the Respondent violated Section
8(a)(5) of the Act. Thus, the Administrative Law
Judge found, and we agree for the reasons stated by
her, that as of March 23, 1973, the Union possessed
valid authorization cards signed by 36 of the 67 unit
employees; that, on the same date, the Union made a
lawful demand for recognition upon the Respondent
which the Respondent declined; and that the
Respondent's refusal, on and after March 23, to rec-
ognize and bargain with the Union constituted a vio-
lation of Section 8(a)(5) of the Act. The Administra-
tive Law Judge further found, and we agree, that the
nature and pervasiveness of the Respondent's unfair
labor practices, which include violations of Section
8(a)(1), (3), and (5) of the Act, have made impossible
the holding of a fair election and that a bargaining
order is warranted to best protect the employees'
rights. Accordingly, although the Respondent em-
barked on a clear course of unlawful conduct which
may reasonably be deemed to have undermined the
Union's majority status and to have prevented the
holding of a fair election as of March 17, 1973, we
conclude, in accordance with the principles set forth
in Trading Port, Inc., supra, that the Respondent was
obligated to recognize and bargain with the Union as
of March 23, the date on which the Union's demand,
supported by a majority of the employees in the unit
found appropriate, was made.'
In view of our conclusions, we will adopt the Ad-
ministrative Law Judge's recommended Order in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board, upon reconsideration, adopts as its
Order the recommended Order of the Administrative
Law Judge and hereby orders that Respondent,
Black Angus of Lauderhill, Inc., Lauderhill, Florida,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the Order issued with
our previous Decision in this proceeding (213 NLRB
425), and reconsidered herein, be, and it hereby is,
vacated.
6 Member Fanning concurs in the finding of a violation of Sec. 8(a)(5) as
of the date of the demand, but emphasizes that his finding is based upon his
view that under NL.R.B. v. Gissel, supra, an employer violates this section
of the Act when in those circumstances it refuses to recognize and bargain
with a union whose majority status is established by authorization cards
whether or not the unfair labor practices triggering the 8(a)(5) finding occur
before , at the same time, or after the actual refusal to bargain.
220 NLRB No. 148