Flav-O-Rich, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1976

224 N.L.R.B. 687 (N.L.R.B. 1976)

FLAV-O-RICH , INC 687
Flav-O-Rich, Inc and Chauffeurs, Teamsters and
Helpers Local Union No. 175, affiliated with the
International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America
Case 9-CA-8146
June 11, 1976
SUPPLEMENTAL DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On August 19, 1974, the National Labor Relations
Board issued a Decision and Order in the above-enti-
tled proceeding,' finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices in violation of Sections 8(a)(5) and (1) and
2(6) and (7) of the National Labor Relations Act, as
amended, and ordering Respondent to cease and de-
sist therefrom and take certain affirmative actions to
remedy such unfair labor practices
Thereafter, on October 3, 1974, Respondent filed
with the Board a "Motion to Abate Proceedings and
Reopen Record " In its motion, Respondent alleged
that it "now has a good faith doubt" of the Union's
majority status based on a poll of the employees in
the bargaining unit conducted by Respondent on
September 16, 1974 Respondent further alleged that
this poll conformed to the requirements set forth by
the Board in Struksnes Construction Co, Inc, 165
NLRB 1062 (1967), and that the results of the poll
indicated that a majority of the employees did not
support the Union Respondent also stated that it
was petitioning for an election to test the Union's
majority The motion requested the Board to abate
proceedings pending the outcome of such election or
to reopen the record to allow Respondent to intro-
duce the poll and other evidence of the Union's al-
leged lack of majority support On October 31, 1974,
the Board issued an order denying Respondent's
"Motion to Abate Proceedings and Reopen Record "
Respondent thereupon petitioned the United
States Court of Appeals for the Sixth Circuit to re-
view the orders of the Board The Board filed a cross-
application for enforcement of its bargaining order
On March 1, 1976, the court granted Respondent's
petition for review, denied the Board's cross-petition
for enforcement, and remanded the case for recon-
sideration of Respondent's "Motion to Abate Pro-
'212 NLRB 930
ceedings and Reopen Record " 2 In remanding, the
court held that the Board committed two procedural
errors in connection with Respondent's "Motion to
Abate Proceedings and Reopen Record" (1) the
Board failed to disclose the reasoning behind its de-
nial of Respondent's motion, and (2) there was no
indication that the Board Members themselves per-
sonally considered and decided the issues raised by
the motion 3
Thereafter, on April 16, 1976, the Board advised
the parties that it had decided to accept the remand
and that they might submit statements of position
with respect to the issues raised by the remand On
May 3, 1976, the General Counsel filed a "Statement
of Position Regarding Disposition of Case on Re-
mand " 4
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
In its original decision, which issued on August 19,
1974, the Board found that Respondent was the suc-
cessor employer to the Leatherwood Company and
was therefore under a duty to bargain with the in-
cumbent Union as the collective-bargaining repre-
sentative of an appropriate unit of its employees 5
Accordingly, the Board found that Respondent vio-
lated Section 8(a)(5) and (1) by refusing to bargain
with the Union after taking over the Leatherwood
operations on November 1, 1973, and by refusing to
bargain with the Union on and after November 19,
1973, concerning the effects of closing the Bluefield,
West Virginia, processing plant
It is well established that a successor employer is
bound by a presumption of continued majority sup-
port "unless it demonstrates that the union no longer
represents a majority of employees on the date of the
refusal to bargain, or that the refusal to bargain was
grounded on a good faith doubt of the Union's ma-
jority status " 6 In the original Board proceeding in
2 Flav-O Rich, Inc v NLRB 531 F 2d 358 (C A 6 1976)
3In its brief to the court, the Board conceded that its records did not
affirmatively disclose whether all three Board Members who had originally
decided this case had themselves considered Respondents motion At the
time the Board's Order issued denying Respondent's motion, the Board
Members chief counsels were authorized to concur on their behalf in the
denial of the reopening of any record in a decided case where the grounds
asserted for reopening were wholly without merit The Board subsequently
revised its procedures so as to assure the personal participation of the Board
Members in all such motions
4 Also on May 3 1976 the Board received a letter from Respondent
which stated that its position has been fully set forth in prior submissions to
the Board and the court of appeals and that Respondent was declining at
this time to make a further submission
5 In its decision the court of appeals affirmed the Board's successorship
finding 531 F 2d at 360
6 N L R B v Wayne Convalescent Center Inc 465 F 2d 1039, 1043 (C A
6, 1972)
224 NLRB No 88
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case, Respondent asserted that it had reasonable
grounds for doubting the Union's majority status as
of the refusal-to-bargain date, but this contention
was rejected by the Board I In its "Motion to Abate
Proceedings and Reopen Record," Respondent did
not advance any new evidence relating to its earlier
claim that it had a reasonable doubt as to the
Union's majority status on the date it refused to bar-
gain Rather, Respondent contended that it was not
required to bargain with the Union because it "now
has a good faith doubt" of the Union's majority sup-
port based on a poll it conducted on September 16,
1974, approximately 11 months after its refusal to
bargain and I month after the Board's decision
Assuming arguendo the truth of the allegations in
Respondent's motion, we conclude that under well-
established legal principles the claim of loss of major-
ity arising after the Board's decision is not a defense
to the Board's 8(a)(5) findings and bargaining order
In the instant case , the alleged loss of majority oc-
curred almost a year after Respondent unlawfully re-
fused to bargain with the Union The Supreme Court
has long recognized that such an unfair labor prac-
tice "disrupts the employees' morale, deters their or-
ganizational activities, and discourages their mem-
bership in unions " 8 Under these circumstances, to
allow an employer to rely on a union's subsequent
failure to retain majority status would result in per-
mitting the employer "to profit from [its] own wrong-
ful refusal to bargain " 9 Similarly, were we to accede
to Respondent's alternative request and order an
election when it is claimed that a union has lost its
majority support subsequent to or
during proceedings occasioned by an employer's
wrongful refusal to bargain, recalcitrant employ-
ers might be able by continued opposition to
union membership indefinitely to postpone per-
formance of their statutory obligation In the
Board's view, procedural delays necessary fairly
to determine charges of unfair labor practices
might in this way be made the occasion for fur-
ther procedural delays in connection with re-
peated requests for elections, thus providing em-
ployers a chance to profit from a stubborn
refusal to abide by the law 10
212 NLRB 930, 933, fn 4
s Franks Bros Co v NLRB , 321 U S 702, 704 (1944)
9 Id
'old at 705
For these reasons, the Court held in Franks Bros that
the Board may require that "an employer bargain
exclusively with the particular union which repre-
sented a majority of the employees at the time of the
wrongful refusal to bargain despite that union's sub-
sequent failure to retain its majority " 11
The Supreme Court's decision in N L R B v Mex-
ia Textile Mills, Inc ,12 is particularly relevant to the
issues presented here, for in that case, as in the in-
stant case, the employer alleged that after the record
was closed "it had come to the conclusion that the
Union no longer represented a majority of employees
in the bargaining unit " In regard to this contention,
the Court held as follows "That the respondent
doubts the Union's ability to muster a majority of the
employees in the bargaining unit does not justify the
denial of an enforcement decree " 13
Similarly, in NLRB v S H Kress & Co ,14 the
employer contended that it was no longer required to
bargain because the union had lost its majority after
the issuance of the Board's order The court rejected
this argument, stating 15
Assuming without determining that the Union
had lost its majority after that time, this conten-
tion is unsound The bargaining relationship
continued for a reasonable period in which it
could be given a fair chance Franks Bros Co v
N L R B, 321 U S 702 Our view is that
because of procedural delays caused by respon-
dent as above indicated the bargaining relation-
ship never had a fair chance
In sum, we find that by its continued refusal to
bargain with the Union on and after November 1,
1973, Respondent has failed to give bargaining "a
fair chance to succeed" 16 and therefore cannot now
rely upon the Union's alleged loss of majority as a
defense to the Board's 8(a)(5) findings and bargain-
ing order In view of the foregoing, we hereby deny
Respondent's "Motion to Abate Proceedings and
Reopen Record" on the ground that the facts alleged
therein are wholly immaterial to the Board's initial
11 Id
12 339 U S 563, 566 (1950)
13 Id at 568 See also N L R B v Katz 369 U S 736 748 In 16 (1962)
Ray Brooks v N L R B, 348 U S 96, 102-103 (1954)
4 194 F 2d 444, 446 (C A 6, 1952)
15 Id
16 Franks Bros, supra, 321 U S at 705
FLAV-O-RICH, INC 689
Decision and Order Accordingly, we reaffirm our
original Decision and Order in this proceeding 11
ORDER
"On March 11, 1976, Respondent filed a motion with the Board for an
order reinstating its RM petition of October 2, 1974, which had been dis-
missed by the Regional Director for Region 9 Alternatively, Respondent
requested that an election be conducted pursuant to a new RM petition
filed by it on March 8, 1976 In view of our finding herein that Respondent
is obligated to bargain with the Union despite the alleged loss of majority
support, Respondent's motion is hereby denied on the ground that " it is the
Board s established policy to dismiss pending representation petitions upon
the issuance of a bargaining order Underlying this policy is the principle
that a petition , which presupposes the presence of a question concerning
representation , and a bargaining order, which necessarily rests on the ab-
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby affirms as its Order the Order
heretofore entered in this proceeding on August 19,
1974
Bence of a question concerning representation , are inherently inconsistent
and, therefore, may not concurrently exist" Riviera Manor Nursing Home
Inc, 220 NLRB 124 (1975)