Gissel Packing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1969

180 N.L.R.B. 54 (N.L.R.B. 1969)

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gissel Packing Company, Inc. and Food Store
Employees Union , Local No. 347, Amalgamated
Meat Cutters and Butcher Workmen of North
America , AFL-CIO. Cases 9-CA-3472 and
9-CA-3583
December 12, 1969
SUPPLEMENTAL DECISION
On March 25, 1966, 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
unfair labor practices in violation of Section 8(a)(1),
(3), and (5) of the National Labor Relations Act, as
amended, and ordered that the Respondent cease
and desist therefrom and take certain affirmative
action to remedy the unfair labor practices.'
Thereafter, on June 28, 1968, the United States
Court of Appeals for the Fourth Circuit affirmed
the Board's findings that the Respondent engaged in
conduct violative of Section 8(a)(1) and (3) of the
Act, but reversed the Board's finding that the
Respondent refused to bargain with the Union in
violation of Section 8(a)(5) of the Act.2 The Court
rejected the Board's holding that the Respondent did
not have a good-faith doubt as to the Union's
majority status, established by signed authorization
cards, when the Respondent was confronted with a
demand by the Union for recognition and
bargaining. The Court stated that authorization
cards designating a union "are such unreliable
indicators of the desires of the employees that an
employer confronted with a demand for recognition
based solely upon them is justified in withholding
recognition pending the result of a certification
election." The Court thus denied enforcement of
that portion of the Board's order which required
Respondent to bargain with the Union.
On June 16, 1969, the Supreme Court of the
United States issued its Decision in this proceeding.3
It held that refusal-to-bargain violations in cases
like this should not be predicated upon an
employer's subjective motivation when confronted
by a union's demand for recognition - i.e., his
good or bad faith doubt concerning the Union's
majority status - but the Court affirmed the
Board's reliance on authorization cards to determine
a union's majority status and to support a
bargaining order in certain circumstances. The
Court noted that the requisite findings which would
support a bargaining order as a remedy for an
8(a)(5) violation in the instant case were possibly
implicit in the Board's decision, and it remanded the
case to the Board for an explicit determination of
'157 NLRB 1065
'N L R B v Girsel Packing Company. Inc, 398 F 2d 336, cert granted
393 U S 997
whether, under the Court's guidelines, Respondent's
unlawful conduct was of such a character as to
warrant the issuance of a bargaining order as an
appropriate remedy.
Thereafter, the Board informed the parties that it
would reconsider its 8(a)(5) finding and the
bargaining order in this case and issued a Notice
granting all parties the opportunity to file
statements of position with respect thereto. Such
statements were filed by the Respondent,' the
General Counsel, and the Union.
The Board has considered the statements of
position and the entire record in this proceeding in
the light of the Court's opinion and, for the reasons
set forth below, has decided to affirm its original
findings that the Respondent violated Section 8(a)(5)
of the Act by refusing to recognize and bargain with
the Union as the majority representative of the
employees, and that a bargaining order is an
appropriate remedy in this case.
In its decision of March 25, 1966, the Board
found that the Respondent, both before and after it
denied the Union's request for recognition and
bargaining, engaged in the following conduct in
violation of Section 8(a)(1) of the Act: Coercively
interrogated its employees concerning their own
activities and that of other employees in behalf of
the Union; threatened economic reprisals against
employees for engaging in union activities; promised
employees benefits to abandon the Union; and
created an impression among the employees that
union meetings were under surveillance. The Board
also found that the Respondent discriminatorily
discharged two active adherents of the Union in
violation of Section 8(a)(3) and (1) of the Act.' With
respect to the 8(a)(5) allegation of the complaint, it
was found (1) that the Union had obtained valid
authorization cards from a majority of employees in
an appropriate unit at the time of its demand for
recognition and bargaining and that the Union was
thus entitled to represent the employees for
collective-bargaining purposes, and (2) that the
Respondent's refusal to bargain with the Union
thereafter was motivated not by a good-faith doubt
of the Union's majority status, but by a desire to
gain time in which to dissipate that representative
status. The Board concluded that the Respondent's
refusal to bargain violated Section 8(a)(5) and (1) of
the Act and issued a bargaining order to remedy the
unfair labor practices.
'N L R B v. Gissel Packing Company, 395 U S 575
'In its statement, the Respondent requested that a hearing be held before
a Trial Examiner to adduce additional evidence We find no merit in this
request and it is denied, for Respondent has not stated with any
particularity the evidence it seeks to introduce nor has it shown what it
would prove at a further hearing . N L R B v Southern Bleachery & Print
Works , Inc, 257 F 2d 235, 241 (C A 4), cert. denied 359 U S 911
'After the Union achieved its majority status, it notified the Respondent
that it was not seeking an election because of Respondent 's coercive
campaign against the employees Instead , the Union filed these unfair
labor practice charges against the Respondent
180 NLRB No. 7
GISSEL PACKING CO., INC. 55
The Court, in setting forth general principles
applicable to the issuance of bargaining orders, held
that the Board has authority to issue such orders to
remedy 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] .116 In addition, the Court approved the
Board's authority to issue a bargaining order ".. .
in less extraordinary cases marked by less pervasive
practices which nonetheless still have the tendency
to undermine majority strength and impede the
election processes."' In such situation, the Board
must examine the nature and extent of the
employer's unlawful conduct and ascertain the
likelihood that the use of traditional remedies would
ensure a fair election. The Court instructed the
Board to decide whether . even though
traditional remedies might be able to ensure a fair
election there was insufficient indication that an
election . . . would definitely be a more reliable test
of the employees' desires than the card count taken
before the unfair labor practices occurred."8
We have reexamined the facts of this case with
these instructions in mind. The record shows, as the
Board has heretofore found, that the Respondent's
employees had designated the Union as their
bargaining representative by means of unambiguous
authorization cards. The Respondent, however,
engaged in unlawful conduct designed to undermine
the Union's support among the employees. Its unfair
labor practices were so flagrant and coercive in
nature as to require, even in the absence of an
8(a)(5) violation, a bargaining order to repair their
effect. We find, in any event, that Respondent's
unfair labor practices were of such a pervasive
character as to make it unlikely that their coercive
effects would be neutralized by conventional
remedies so as to produce a fair election. In these
circumstances, we believe that employee sentiment
as expressed through the authorization cards is a
more reliable measure of their desires on the issue
of representation in this case than an election would
be. We therefore find that by refusing to bargain
with the Union and engaging in the unfair labor
practices described above, Respondent violated
Section 8(a)(5), and that to effectuate the policies of
the Act a bargaining order is required to remedy its
refusal to bargain as well as its other unfair labor
practices.
We accordingly reaffirm the unfair labor practice
findings and the remedy provided in the original
Decision and Order.
IN L R B v Gisse/ Packing Company. 395 U S 575, 615
11d. p 614
'Id. p 616