Heck's Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 430 (N.L.R.B. 1969)

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heck's Inc. and Food Store Employees Union, Local
347, Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO. Case
9-CA-3728
December 16, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On June 28, 1967, 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)
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) of the Act, but
reversed the Board's findings that the Respondent
refused to bargain with the Union in violation of
Section 8(a)(5).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,
which was established by signed authorization cards.
The court indicated that it considered "authorization
cards unreliable indicators of the desires of the
employees and that an employer is justified in
entertaining a good faith doubt of the Union' s claim
when confronted with a demand for recognition
based solely upon authorization cards." The court
denied enforcement of that portion of the Board's
order requiring the Respondent to bargain with the
Union.
On June 16, 1969, the Supreme Court of the
United States issued its opinion in this proceeding.'
Although it made clear that refusal-to-bargain
violations may no longer be predicated upon an
employer's subjective motivation when confronted
by a union's demand for recognition, i.e., his good
or bad faith concerning the union's majority status,
the Court affirmed the Board's use of authorization
cards as a basis for establishing a union's majority
status and the Board's power to issue a bargaining
order based upon such showing.
The Supreme 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
1166 NLRB No. 32.
'N.L R B. v. Heck's Inc . 398 F .2d 337 , cert. granted 393 U.S. 997
'N.L R B v Gissel Packing Company, inc.. it al. 395 U.S. 575.
[unfair labor practices]." In addition, the Court held
that, in cases where the unlawful conduct is less
flagrant in nature, the Board may find an 8(a)(5)
violation and issue a bargaining order if "the
possibility of erasing the effects of [the] past
practices and ensuring a fair election . . . by use of
traditional remedies ... is slight and ... [therefore]
employee sentiment once expressed through cards
would, on balance, be better protected by a
bargaining order . ." In the instant case, the
Board did not make a finding that a bargaining
order would have been necessary even in the absence
of an unlawful refusal to bargain; nor did it make a
finding that, 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 authorization cards. The Court
noted that the requisite findings of the Board to
support a violation of Section 8(a)(5) and the
issuance of a remedial bargaining order in the
instant case were possibly implicit in its decision,
but remanded the case to the Board for a specific
determination as to whether the Respondent's
unlawful conduct was of such a character as to
constitute a violation of Section 8(a)(5) of the Act
and to warrant a bargaining order as an appropriate
remedy.
Thereafter, the Board issued a notice granting all
parties the opportunity to file statements of position
with respect to the matters raised by the Supreme
Court's remand. Such statements were filed by the
Respondent,4 the General Counsel, and the Union.
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 considered the statements of
position and the entire record in this proceeding in
the light of the Supreme Court's opinion and, for
the reasons set forth below, affirms its original
findings that the Respondent violated Section 8(a)(5)
and (1) 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 necessary to effectuate the
purposes of the Act in this case.
In its decision of June 28, 1967, the Board found
that the Respondent, engaged in the following
unlawful conduct in violation of Section 8(a)(1) of
the Act: warned employees that an employee at
another store who had signed a union authorization
card had been discharged on the spot; unlawfully
The Respondent , prior to the issuance of the Board 's notice granting all
parties an opportunity to file statements of position , filed a motion for oral
argument ; the General Counsel filed a memorandum in opposition thereto.
In response to the Board's notice the Respondent renewed its motion for
oral argument. Respondent 's request for oral argument is hereby denied,
as, in our opinion , this case can be fully considered on the basis of the
record herein , which adequately presents the facts necessary to make the
finding required by the Supreme Court's remand.
180 NLRB No. 64
HECK'S INC. 431
interrogated and polled employees , and created an
impression of close surveillance by management of
union activities. With respect to the 8(a)(5)
allegation of the complaint, the Board 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 (2) that the Respondent lacked a
good faith doubt concerning majority status since it
was aware that the Union had achieved majority
status prior to unlawfully polling the employees. 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.
We are convinced after a reexamination of the
facts herein in the light of the Court's opinion, that
a bargaining order is warranted. The Respondent's
relentless campaign to defeat the Union's
organizational efforts included serious and extensive
acts of interference , restraint , and coercion against
its employees in violation of Section 8(a)(l). These
unfair labor practices tended to destroy the Union's
majority status achieved by authorization cards and
were so flagrant and coercive in nature as to
require, even in the absence of an 8(a)(5) violation, a
bargaining order to remedy their effect. We further
find, in the light of the above conduct that the
Respondent's refusal to recognize and bargain with
the Union violated Section 8(a)(5) and (1) of the
Act. In our view, it is unlikely that the effect of
these unfair labor practices could be neutralized by
conventional remedies which would ensure a fair
election . We therefore find that the employees'
desires as expressed through the authorization cards
are a more reliable measure of their stand on the
issue of representation and that the policies of the
Act will be better effectuated by the issuance of a
bargaining order. Accordingly, we affirm the
previous findings as modified herein and shall affirm
the remedy provided in the original Decision and
Order.
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 June 28, 1967, in this
proceeding.