Davis Wholesale Co., Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1970

181 N.L.R.B. 2 (N.L.R.B. 1970)

2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis Wholesale Co., Inc . and Food Store Employees
Union Local No. 347, Amalgamated Meat Cutters
and Butcher Workmen of North America,
AFL-CIO. Cases 9-CA-3599 and 9-CA-3742
February 5, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On June 12, 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 these cases to a three-member
panel.
In its initial decision the Board found that
Respondent violated Section 8(a)(1) of the Act by
interrogating its employees concerning their union
activities, by threatening- its employees with reprisals
1165 NLRB No. 39.
because of their union sympathies, including a threat
to close the plant, by actually changing certain
working conditions in reprisal, by soliciting
withdrawals from union membership or disclaimers
of interest in union representation, and by
promulgating a discriminatory no-solicitation rule;
violated Section 8(a)(3) by suspending certain
employees, and discharging one, because of their
union sympathies; 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 now 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,'
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
these cases, the National Labor Relations Board
hereby affirms its order issued in this proceeding on
June 12, 1967.
'Edward Frazier, Respondent 's night shift foreman, on one occasion told
employee Watts that he knew that all but one man on the night shift had
signed up for the Union, and on another told him that 83 percent of
Respondent 's employees had signed; Frazier told employees Chaney and
Adkins that the Employer knew who had signed ; and on another occasion
Frazier remarked to Adkins and a group of employees "You think I don't
know that every damn man in this building signed for a union except three
of them?"
181 NLRB No. 3