Davis Wholesale Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 5, 1970181 N.L.R.B. 1 (N.L.R.B. 1970) Copy Citation DAVIS WHOLESALE CO. INC. Davis Wholesale Co ., Inc. and Food Store Employees Union Local 347, Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO. Case 9-CA-3764 February 5, 1970 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On August 3, 1967, the National Labor Relations Board issued its Decision in this proceeding,' finding that Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, and ordering Respondent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, including bargaining with the Union. On June 16, 1969, the Supreme Court of the United States issued its opinion in N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, affirming generally the Board's use of authorization cards in determining a union's majority status and the Board's power to issue a bargaining order based upon such showing where the employer's unfair labor practices had a tendency to undermine the union 's majority and impede the election process. Thereafter, the United States Court of Appeals for the Fourth Circuit remanded the instant proceeding to the Board for reconsideration in the light of the Supreme Court's opinion in Gissel. On August 13, 1969, the Board issued a Notice permitting the parties to file statements of position with respect to the application of Gissel to this proceeding. Respondent, the Union, and the General Counsel filed statements of their respective positions. Pursuant to the provisions of Section 3(b) of the Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. In its initial decision the Board found that Respondent violated Section 8(a)(1) of the Act by 1166 NLRB No. 119. interrogating its employees concerning their union activities, by threatening its employees with reprisals if they became or remained members of the Union; violated Section 8(a)(3) by altering work conditions, thus causing layoffs and loss of earnings, by changing its practice with regard to credits and repayments of loans, and by refusing to reinstate certain of its employees because they supported the Union's strike efforts; and violated Section 8(a)(5) by refusing to bargain with the Union, which represented a majority of its employees, without a valid good-faith doubt of the Union's majority. We have reviewed our earlier findings in light of the Supreme Court's opinion in Gissel, and find it unnecessary to rely upon Respondent's lack of good faith as grounds for an unlawful refusal to bargain. Rather, we find that by refusing to bargain with the Union after engaging in the varied and serious unfair labor practices summarized above, practices designed to undermine the Union's majority status, and in view of Respondent's knowledge, independent of the Union's card showing, that the Union represented a majority of its employees,2 Respondent violated Section 8(a)(5) of the Act. We are of the opinion that the coercive effects of Respondent's unfair labor practices cannot be dispelled by the imposition of traditional remedies, and were of such a nature as to make a fair election improbable. We find that the purposes of the Act can better be effectuated, and-employee sentiment as expressed through' their signing of authorization cards better protected, by the issuance of a bargaining order. Moreover, these unfair labor practices were so flagrant and coercive in character as to require a bargaining order to remedy their effect, even in the absence of a violation of Section 8(a)(5) of the Act. Therefore we shall affirm the bargaining order previously issued. 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 August 3, 1967. 'As the Trial Examiner found , following the Union's demand for bargaining , Respondent questioned several of its employees. Two employees told Respondent that all ten of its employees had signed up for the Union . Further, all employees in the unit went out on strike in protest of Respondent 's unfair labor practices. 181 NLRB No. 2 1 Copy with citationCopy as parenthetical citation