Irv's Market

National Labor Relations Board - Board Decisions

Dec 2, 1969

179 N.L.R.B. 832 (N.L.R.B. 1969)

832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Irving N. Rothkin d/b/a Irv 's Market and Retail
Clerks International Association , Local 698,
AFL-CIO. Case 8-CA-5096
December 2, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On April 30, 1969, the National Labor Relations
Board issued its Decision in the above-entitled
proceeding,' finding that the Respondent had
engaged in certain conduct in violation of Section
8(a)(I) and (5) of the National Labor Relations Act,
as amended, and ordering the Respondent to take
certain affirmative action, which included an order
to bargain with the Union upon request. Thereafter,
on August 5, 1969, the Board, by its Associate
Executive Secretary, issued a Notice informing the
parties that it had decided to reconsider, in light of
the guidelines announced in N.L.R.B. v. Gissel
Packing Company, both the 8(a)(5) finding and the
bargaining order. The Notice invited the parties to
file statements of position on these issues. The
General Counsel and the Respondent have filed such
statements.
Pursuant to Section 3(b) of the Act, as amended,
the 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
and, for the reasons set forth below, has decided to
reaffirm both its finding that the Respondent
violated Section 8(a)(5) and (I) of the Act by
refusing to recognize the Union as majority
representative of the employees, and its conclusion
that a bargaining order in this case is necessary to
effectuate the purposes and policies of the Act.
The Supreme Court in Gissel, so far as is relevant
here, agreed that the Board has 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 [is] necessary to
repair the unlawful effects of those [unfair labor
practices]."3 The Court also approved the Board's
authority to issue bargaining orders in less
extraordinary cases, involving less pervasive
practices, when the Board decides that "even though
traditional remedies might be able to ensure a fair
election, there [is] insufficient indication that an
election (or a rerun . . .) would definitely be a more
reliable test of the employees' desires than the card
count taken before the unfair labor practices
occurred."4
175 NLRB No 121
'395 U S 575
'395 U S at 615
We think a bargaining order is warranted, under
either of the above standards, by the facts of this
case. Thus, during the 2 days following the Union's
demand for recognition, the Respondent's son,
admittedly a supervisor, called into his office and
spoke individually with seven of the eight employees
who had signed cards asking them if they had
signed a card, why they had done so, and whether
they had had time to think about it, telling them
that if the Union came in, the store would not be
able to afford its demands, and would have to close
down, and urging each to write a letter to the Union
which each did stating he had changed his
mind and no longer wanted Union representation.'
The eighth employee was similarly asked to quit the
Union, but he refused. In addition, he was asked
where he got the cards, and what economic benefits
the other employees wanted. Finally, in the month
that followed, the Respondent himself told this
employee that, if he had to pay higher wages
because of the Union's demands, he would have to
lay people off and close down the store. The
foregoing conduct, in our view, was so coercive and
pervasive that we are satisfied that a bargaining
order is necessary to remedy these unfair labor
practices even absent a violation of Section 8(a)(5).
The foregoing violations plainly undermined the
Union's preexisting majority support, they will, in
our opinion, have a lingering effect which decreases
the possibility that traditional remedies can ensure a
fair election We are therefore of the opinion, on
balance, that the cards represent a more reliable
expression of employee desire than would an
election. Accordingly, we find that by refusing to
recognize and bargain with the Union and by
engaging in the aforesaid unfair labor practices, the
Respondent violated Section 8(a)(5)' and that the
policies of the Act will best be effectuated by
imposition of a bargaining order to remedy the
Section 8(a)(5) violation as well as Respondent's
other unfair labor practices. Under these
circumstances, we shall reaffirm the findings and
remedy provided in the original Decision and Order
herein.'
SUPPLEMENTAL ORDER
In view of the foregoing, and on the basis of the
record as a whole, the National Labor Relations
Board reaffirms its Order of April 30, 1969, in this
proceeding.
'395 U S at 616
'The letters were left in the office and later stamped and mailed to the
Union
'Although not essential to our finding of an unlawful refusal to bargain
herein, we note also that when the Union made its bargaining demand,
Respondent examined the authorization cards submitted in support of that
demand and conceded that a majority of its employees in the appropriate
unit had executed such cards
'All-Tronics , Inc. 179 NLRB No 19, General Stencils , Inc. 178 NLRB
No. 18, World Carpets, Inc, 176 NLRB No 138
179 NLRB No. 140