Hy-Vee Food Stores, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1969

178 N.L.R.B. 609 (N.L.R.B. 1969)

HY-VEE FOOD STORES 609
Hy-Vee Food Stores, Inc. and Amalgamated
Meatcutters & Butcher Workmen of North
America , AFL-CIO Local Union 576. Case
17-CA-3650
September 24, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN , AND ZAGORIA
On February 24, 1969, Trial Examiner Owsley
Vose issued his Decision in the above -entitled
proceeding , finding that the Respondent had
violated Section 8(a)(1) and ( 5) of the National
Labor Relations Act, as amended, and
recommended that the Respondent be ordered to
cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act , including an order directing the
Respondent to bargain with the Union . He also
found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint, and
recommended that such allegations be dismissed.
The Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
On May 21 , 1969, pursuant to the provisions of
Section 3(b) of the National Labor Relations Act,
as amended , the National Labor Relations Board
issued its Decision and Order ,' in which it adopted
the findings , conclusions , and recommendations of
the Trial Examiner , as modified therein.
Thereafter , on June 16 , 1969, the Supreme Court
of the United States issued its opinion in V.L.R.B.
v. Gissel Packing Company, 395 U.S. 575, in which
it laid down certain guidelines relative to the
propriety of finding violations of Section 8(a)(5) and
issuing orders to bargain based upon such violations
or violations of other sections of the Act.
On August 7, 1969, the Board in a notice issued
by its associate executive secretary informed the
parties herein that the Board having duly considered
the matter , has decided to reconsider , in light of
Gissel , the 8 (a)(5) finding of the bargaining order
issued in this case.2
On September 5, 1969, Respondent and General
Counsel filed with the Board statements of position.
Pursuant to the provisions of Section 3(h) 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 reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The Board has
reconsidered its prior Decision and Order, the
'176 NLRB No 5
'All parties, including the General Counsel , were informed that they may
file with the Board in Washington , D C . on or before September 5, 1969,
statements of position with respect to the issues set forth above.
statements of position thereto, and the entire record
in this case, including Respondent's exceptions and
brief, and hereby reaffirms its Decision and Order
for the reasons indicated below.
As is more fully set forth in the Trial Examiner's
Decision, the record shows that Respondent, upon
receipt of the Union's demand for recognition,
immediately embarked upon a course of unlawful
conduct which was geared towards coercing its
employees to change their minds concerning union
representation.
Briefly summarizing this conduct, we see that on
the same day the Union made its demand for
recognition, Marshall, Respondent's store manager.
informed employees that Respondent opposed their
organizational activities, questioned the meat
department employees about their reasons for
wanting union representation and threatened Donald
Harker that under a union contract he would lose
his job. On the same occasion, Smock, the meat
department supervisor, proposed that the employees
bypass the Union and enter into a contract directly
with the Respondent. Later the same day, Marshall
threatened Donald Harker and Garry Stanley that
their chances of promotion would be adversely
affected by unionization of the store. Marshall
similarly threatened Joe Harker on August 9. On
August 8, Vice President Clemmons coercively
interrogated each of the card signers and engaged in
a repeat performance on August 12 with three of the
five card signers.
On August 13 and 14, three employees wrote
letters attempting to withdraw and rescind the
authorization cards previously signed by them. They
informed Marshall of their action.
On August 14, Respondent wrote a letter to the
Union refusing to recognize it as the representative
of the meat department employees assertedly
because of its information and belief that the Union
did not represent a majority of the employees.
The complaint in this case issued on October 15
and was served on Respondent's attorney the next
day. A few days later Respondent substantially
raised the wages of Joe Harker and Charles Baker,
two of the three employees who had signed
withdrawals from the Union, in an attempt to insure
that they would testify in this proceeding in a
manner sympathetic and helpful to Respondent's
case.
On November 5, 2 weeks before the trial in this
case, and again a week later, and still again the
night before the hearing, Marshall attempted to
pressure Donald Harker into shaping his testimony
in this case to fit Respondent's wishes.'
The Trial Examiner found that by the foregoing
conduct Respondent violated Section 8(a)(1) and (5)
'Marshall wanted Harker to testify that the employees wanted to have
an election We take official notice that Respondent filed an RM petition,
Case 17-RM-396, on August 19. and that the petition was withdrawn after
the complaint in this case issued and Respondent was notified by the
Regional Director that he intended to dismiss the petition
178 NLRB No. 101
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act. We agree with and adopt his findings
and conclusions in this respect and his
Recommended Order. We believe that such order
fully comports with the guidelines laid down by the
Supreme Court in the Gissel case. Insofar as is
relevant here, the Supreme Court in Gissel approved
the Board's authority to issue a bargaining order to
redress unfair labor practices "so coercive that, even
in the absence of an Section 8(a)(5) violation, a
bargaining order would have been necessary to
repair the unlawful effect of those [unfair labor
practices]." Additionally, in circumstances where the
unlawful conduct is less flagrant in nature, the
Court held that the Board may find an 8(a)(5)
violation and issue a bargaining order where "the
possibility of erasing the effects of [the] past
practices and ensuring a fair election (or a fair
rerun) by the use of traditional remedies . . . is
slight and . . . [therefore] employee sentiment once
expressed through cards would, on balance, be
better protected by a bargaining order ....''
We are satisfied that a bargaining order is
warranted on the facts of this case by either of the
above standards. It is apparent that the unfair labor
practices committed by Respondent before it
rejected the Union's demand for bargaining and the
filing of its RM petition, were calculated to, and
did, undermine the Union's majority status.
Respondent's filing of its RM petition and its later
unlawful attempts to pressure employees into
testifying that they wanted an election reveal that
Respondent was intent upon having the employees'
coerced rejection of the Union ratified by a Board
conducted election. Respondent's unfair labor
practices, however, were so coercive and pervasive
as to destroy utterly the conditions necessary to a
free election. Accordingly, to remedy these unfair
labor practices and to protect employee desires for
union representation which, in this case, we find are
more reliably reflected b) the authorization cards
signed by a majority of' unit employees prior to
Respondent's unfair labor practices than would be
the results of any election conducted thereafter, our
Order shall include provisions requiring Respondent
to recognize and bargain with the Union as the
exclusive representative of its employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Hy-Vee Foods
Stores, Inc , Kirksville. Missouri, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.