J. H. Rutter-Rex Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1970

180 N.L.R.B. 878 (N.L.R.B. 1970)

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. H. Rutter-Rex Manufacturing Company, Inc. and
Drivers and Warehousemen 's Local Union No.
3027, AFL-CIO. Case 9-CA-3993
January 22, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On April 17, 1967, the National Labor Relations
Board issued , a Decision and Order in the
above-entitled proceeding,' finding that the
Respondent had committed violations of the
National Labor Relations Act, as amended, within
the meaning of Section 8(a)(1), (3), and (5), and
ordering that Respondent cease and desist therefrom
and take certain affirmative action. Thereafter, on
September 19, 1969, the United States Court of
Appeals for the Sixth Circuit enforced the Board's
order with respect to Section 8(a)(1) and (3), and
remanded the instant proceeding to the Board for
reconsideration of the latter's findings that
Respondent violated Section 8(a)(5) of the Act and
its order requiring Respondent to bargain upon
request with the Union in light of the Supreme
Court's decision in N.L.R.B. v. Gissel Packing
Company, 395 U.S. 575, June 16, 1969.
Subsequently, on October 2, 1969, the Board issued
a notice2 to the parties, including the General
Counsel, that statements of position with respect to
the above-stated issue would be accepted for
consideration by the Board on or before October 16,
1969. The General Counsel filed a statement of
position. The Respondent stated its position in a
memorandum to the Board.
The Board3 has again reviewed the entire record,
including the General Counsel's statement and the
Respondent's memorandum, and having
reconsidered the matter, affirms its original finding
and order for the reasons stated below.
In its original decision the Board found, in
agreement with the Trial Examiner, that
Respondent violated Section 8(a)(l) of the Act by
threatening shortly after the Union's request for
bargaining - to close its warehouse, evidenced in
part by a statement by warehouse manager Drake
that "Mr. Rutter would rather have a heart attack
or die than have a union come in"; by interrogating
employees about their union sympathies; by
threatening employees with loss of jobs if they
joined the Union; by promising wage increases and
also by advising employees - in a context of saying
that the plant would close rather than have a union
that wage increases were being withheld. The
'164 NLRB 5.
'Not published in Board volumes.
'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.
Board also found that the Respondent violated
Section 8(a)(3) of the Act by precipitately
discharging the three employees to whom most of
the coercive remarks were addressed immediately
after they openly espoused the Union and, with their
union representative, attempted to talk with the
warehouse manager and the assistant manager.
With respect to the 8(a)(5) allegation, the Board
found that on June 21, 1966, the day on which the
Union requested bargaining for a warehouse unit
claiming to represent the employees in question, the
Union had valid authorization cards from five out of
six employees in the appropriate unit; that the
demand for recognition was of a continuing nature;
that an additional employee started work in the unit
about July 28; that another employee had signed an
authorization card in the meantime; and that the
Union preserved its majority status with six cards in
a unit of seven. The Board, affirming the Trial
Examiner, concluded that the Respondent had no
good-faith doubt of majority, partly by reason of the
Respondent's contemporaneous unfair labor
practices, and found that the Respondent by
refusing to bargain as requested violated Section
8(a)(5) and (1) of the Act and ordered the
Respondent to bargain with the Union. Also, in
agreement with the Trial Examiner, the Board found
an 8(a )(5) violation based upon the unilateral grant
,of raises decided upon earlier but given after the
recognition request.
Having carefully reconsidered this matter in light
of Gissel Packing Company, supra, we believe that
our original order fully comports with the guidelines
laid down by the Supreme Court in that case. There
the Court approved the Board's 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 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 by
either of these standards.
We view the Respondent's unfair labor practices
as so coercive and pervasive as to destroy utterly the
conditions necessary for a free election, precluding
neutralization by conventional remedies. In these
circumstances we believe that employee sentiment as
expressed through the authorization cards is a more
reliable measure of employee desires on the issue of
representation than an election would be in this
case. We find no merit in the Respondent's
contention that the, effects of these unfair labor
180 NLRB No. 133
J. H. RUTTER-REX MFG. CO., INC. 879
practices were short lived because the three
dischargees were reinstated in August 1966, and
Respondent ' s warehouse manager , is no longer
employed at the Columbus, Ohio, warehouse having
moved to Columbia, Mississippi, in September 1966,
and that 3 years "should have been sufficient" for
the effects of the unfair labor practices to have worn
off "particularly under the new management.'" 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 the refusal
to bargain as well as the Respondent's other unfair
labor practices.
We accordingly reaffirm the findings and the
remedy provided in the original Decision and Order,
including that portion of the 8(a)(5) finding based
upon the Respondent's unilateral grant of a wage
increase without bargaining with the majority
representative of its employees.
We note that the former warehouse manager attributed the plant
closure sentiments to Mr Rutter himself, and was succeeded by then
assistant manager Bruce who also took part in the conduct found in
violation of Section 8(a)(I) See Vaca Valley Bus Lines, 179 NLRB No
107, where a similar argument was made and rejected in the context of an
alleged loss of majority status by the Union during the 3 years following
the commission of unfair labor practices.