Clay City Beverages, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1970

181 N.L.R.B. 767 (N.L.R.B. 1970)

CLAY CITY BEVERAGES , INC. 767
Clay City Beverages , Inc. and International Molders
and Allied Workers Union , AFL-CIO. Cases
8-CA-5100 and 8-CA-5108
April 14, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On June 16, 1969, 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)(1), (3), and (5) of the National Labor
Relations Act, as amended, and ordering the
Respondent to cease and desist therefrom and take
certain affirmative action, including, inter alia, to
bargain with the Union.
On December 23, 1969, the Board advised the
parties that it intended to reconsider certain aspects
of its earlier decision in light of the Supreme
Court's opinion in N L.R.B. v. Gissel Packing
Company, 395 U.S. 575, and invited the parties to
file statements of position. Such statements have
been filed by the General Counsel and the
Respondenk.
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 these cases to a
three-member panel.
The Board has considered the statements of
position and the entire record in this proceeding
and, for the reasons set forth below, we reaffirm our
original finding that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to
recognize the Union as majority representative of its
employees, and that a bargaining order is necessary
to effectuate the purposes and policies of the Act in
this case.
The Supreme Court in Gissel, supra, insofar as is
relevant here, agreed that the Board has authority to
issue a bargaining order to redress unfair labor
practices "so coercive that, even in the absence of a
Section 8(a)(5) violation, a bargaining order [is]
necessary to repair the unlawful effect of those
[unfair labor practices]."' The Court also approved
the Board's authority to issue bargaining orders in
less extraordinary cases, involving less pervasive
practices, if it finds that ". . . the possibility of
erasing the effects of past practices and of insuring a
fair election (or a fair rerun) by the use of
traditional remedies, though present, is slight and
that employee sentiment, once expressed through
cards would, on balance, be better protected by a
176 NLRB No 91
bargaining order . '
We think a bargaining order is warranted under
either of the above standards by the facts of this
case. Thus, on July 22, 1968, 2 days after 10 of the
plant's approximately 12 employees had met and
signed union authorization cards, the Respondent
interrogated an employee about the union activity at
the plant; on July 23, the Respondent discharged,
because of his union activity, another employee who
had obtained and distributed the cards; on July 26,
after several employees had gone on strike in protest
of the unfair labor practices, the Respondent
unlawfully discriminated against the strikers by
paying a bonus to nonstrikers for a production
record that had been achieved by the full work force
prior to the strike; on August 2, the Respondent
unlawfully threatened the strikers with loss of
employment; and on August 14, the Respondent's
chairman of the board told a union representative
that the strikers would be reinstated only if the
Union abandoned its demand for recognition and
bargaining and that the discharged employee would
never be rehired because of his role in the union
campaign.
The foregoing unlawful conduct, in our judgment,
was of a sufficiently pervasive and extensive
character, especially considering the small size of
the unit, to have likely served its intended purpose
of undermining the Union's preexisting majority. In
these circumstances, we believe that a bargaining
order is the only available effective remedy for the
substantial violations of 8(a)(1) and (3). We are
further of the opinion that the lingering effects of
the Respondent's past coercive conduct render slight
the possibility that traditional remedies could insure
a fair election.4 We conclude, on balance, that the
majority card designations obtained before the
unfair labor practices occurred provide a more
reliable test of employee representation desires than
would an election and that those desires would be
better protected and the policies of the Act best
effectuated by the issuance of a bargaining order.
Accordingly, we shall reaffirm the findings and
remedy provided in the original Decision and Order
herein.
SUPPLEMENTAL ORDER
In view of the foregoing, and on the basis of the
record as a whole, the National Labor Relations
Board reaffirms its Order of June 16, 1969, in this
proceeding
'395 U S at 615
'/d
'The Respondent contends that any harm done by its letter of August 2,
1968, which threatened striking employees with discharge in violation of
8(a)(1), was corrected by its letter of September 18, 1968, which offered
unconditional reinstatement to these employees We find no merit in this
contention See, J H Rutter-Rex Manufacturing Co, 180 NLRB No
133, reaffg 164 NLRB 5
181 NLRB No. 178