Dayton Town and Country Furniture Shop, Inc.

National Labor Relations Board - Board Decisions

Dec 3, 1969

179 N.L.R.B. 847 (N.L.R.B. 1969)

DAYTON TOWN AND COUNTRY 847
Dayton Town and Country Furniture Shop , Inc. and
Sales Drivers, Sale 's & Service Local Union 176,
affiliated with the International Brotherhood of
Teamsters, • Chauffeurs, Warehousemen and
Helpers of America . Case 9-CA-4245
December 3, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On July 2, 1968, the National Labor Relations
Board issued its Decision and Order in the
above-entitled proceeding,' finding that Respondent
had engaged in conduct violative 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 to take certain affirmative
action set forth therein. Subsequently, the Board, in
light of the United States Supreme Court's decision
in N.L.R.B. v. Gissel Packing Companv.2 decided
on its own motion, to reexamine its 8(a)(5) order
requiring Respondent to bargain with the Union
notwithstanding the Union's failure to receive a
majority of the votes cast at a valid election. On
August 5, 1969, the Board notified the parties of its
decision to reconsider, and invited statements of
position with respect to the issue. Such statements
have been filed by Respondent 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 has again reviewed the entire record in
this case, including the statements of position, and,
for the reasons stated -below, affirms its original
findings that Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to recognize and
bargain with the Union as majority representative of
the employees in an appropriate unit, and that a
bargaining order is necessary to effectuate the
purposes and policies of the Act.
The record establishes that half an hour after a
majority of unit employees had signed valid union
authorization cards, Respondent, through Purvis, its
warehouse superintendent , violated Section 8(a)(1)
and interfered with employee freedom of choice in
the forthcoming election by: (1) separately
interrogating six of the fifteen unit employees with
respect to whether they, or anyone else, had signed a
union card; (2) stating that he, Purvis, "would find
out all the men that had signed cards and . . . would
get rid or fire them"; (3) threatening an employee
who had signed a card that employees could lose
their jobs for doing so; and (4) stating that "as long
as I am here, there won't be no union come in
here." Thereafter, but prior to the election,
Respondent violated Section 8(a)(3) by discharging
or laying off four employees because of their union
activities. The Union, though possessing valid cards
from a majority of the employees, failed to receive a
majority vote in the election which subsequently was
set aside on the basis of Respondent's unlawful
conduct.
In Gissel, supra, the United States Supreme
Court approved the Board's 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 would have
been necessary to repair the unlawful effect of those
[unfair labor practices]." The Court also held that
in circumstances where the unlawful conduct is less
flagrant, the Board may find an 8(a)(5) violation
and issue a bargaining order when ". . . the
possibility of erasing the effect of past practice and
of ensuring a free election (or a fair rerun) by the
use of traditional remedies is slight, and that
employee sentiment . expressed through cards
would, on balance, be better protected by a
bargaining order ...."
We conclude that Respondent's unfair labor
practices when considered in the aggregate, are so
coercive in nature and serious in content that a
bargaining order is required to remedy their effect.
Respondent's expressed union hostility and the
manner in which it illustrated that to its employees
renders the possibility of ensuring a fair rerun
election remote. In these circumstances, we find that
the cards which the employees signed better and
more reliably express the desires of the employees
than would a rerun election, and that a bargaining
order is therefore appropriate to remedy the Section
8(a)(5) violation as well as Respondent's other
unfair labor practices. Accordingly, we hereby
affirm the Decision and Order heretofore issued in
this case.
SUPPLEMENTAL ORDER
In view of the foregoing, and on the basis of the
record as a whole, the National Labor Relations
Board affirms its Order of July 2, 1968, in this
proceeding.
172 NLRB No. 103
'395 U S 575
179 NLRB No. 144