Keystone Pretzel Bakery, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1981

256 N.L.R.B. 334 (N.L.R.B. 1981)

334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Keystone Pretzel Bakery, Inc. and Bakery, Confec-
tionery and Tobacco Workers International
Union, AFL-CIO, CLC, Local 6.1 Case 4-CA-
8746
June 2, 1981
SUPPLEMENTAL DECISION AND
ORDER
On May 24, 1979, the National Labor Relations
Board issued its Decision and Order2 in this pro-
ceeding in which it adopted Administrative Law
Judge Charles W. Schneider's findings that Re-
spondent violated Section 8(a)(3) and (1) of the Act
by discriminatorily withholding a wage increase
from employee Hall and violated Section 8(a)(l) by
engaging in, encouraging, and authorizing surveil-
lance of employee union activity; creating an im-
pression of surveillance; coercively interrogating
employees concerning union activity; otherwise co-
ercively restraining union activity; and by its con-
duct at a meeting on May 31, 1977,3 which Re-
spondent paid its employees to attend and at which
it solicited and satisfied grievances, promised and
subsequently granted wage increases and other
benefits, sponsored an unlawful employee poll, and
bought lunch for employees. The Board further
found that the Union had attained majority status,
that the likelihood of erasing the effect of Respond-
ent's unfair labor practices and conducting a fair
election was slight, and therefore that a bargaining
order should issue.
Thereafter, the Board petitioned the United
States Court of Appeals for the Third Circuit for
enforcement of its Order. Subsequently, Respond-
ent filed with the court a motion for leave to
adduce additional evidence concerning the contin-
ued propriety of the bargaining order.4 On Octo-
ber 8, 1980, in an unpublished order, a two-judge
panel of the court remanded the case to the Board
for the purpose of adducing additional evidence,
noting the lapse of time since the date on which
the Union achieved majority status and Respond-
ent's allegation of extensive employee turnover in
I The name of the Charging Party has been changed to reflect its
merger with the Tobacco Workers International Union, effective August
17, 1978.
2 242 NLRB 492 (1979).
3 Except as otherwise indicated, all dates are in 1977.
4 Respondent appended to its motion an affidavit of its president in
which he listed the persons who were employed by Respondent as of
September 5 1980. A comparison of that list with the record in this case
indicates that there are 33 names listed in positions which were included
in the unit found appropriate. Of those 33 individuals. 14 were employed
in the unit at the time Respondent committed its unfair labor practices.
and 7 of those 14 signed cards for the Union. It is this evidence which
Respondent sought leave to adduce, arguing that it was relevant to both
the Union's continued majority status and the propriety of a bargaining
order.
256 NLRB No. 59
the unit. On November 14, 1980, the court denied
the Board's motion for reconsideration en banc.
Thereafter, the Board accepted the court's
remand and notified the parties that they could file
statements of position concerning the issues raised
by the remand. Subsequently, the General Counsel,
the Charging Party, and Respondent filed state-
ments of position.
The Board has considered the record as a whole
in light of the court's order and the statements of
position on remand and now makes the following
findings:
As fully set forth in the Board's original Deci-
sion, the Union began an organizational campaign
among Respondent's employees in April 1977. By
May 24, the Union had obtained signatures from 17
of the 29 employees in the unit found appropriate
by the Board. On June 1, the Union filed a petition
with the Board in which it sought an election
among Respondent's employees. On June 16, the
Union filed the instant charges. Between the April
commencement of the union campaign and the
filing of the charges in June, Respondent engaged
in a series of unfair labor practices, mentioned
above, which the Board found constituted suffi-
cient interference, restraint, and coercion of em-
ployee union activity to warrant the issuance of a
bargaining order.
In its statement of position, Respondent argues
that employee turnover in the bargaining unit and
expansion of the bargaining unit since the issuance
of the Board's Order have rendered a bargaining
order inappropriate. In this regard, Respondent
seeks to adduce "up-to-date evidence reflecting the
employment status" of bargaining unit employees.
Respondent further asserts that it has been preju-
diced by delays in the issuance of the Board's De-
cision and in the filing of an application for en-
forcement of the Board's Order, and that a major-
ity of employees no longer supports the Union.
The General Counsel and the Charging Party
argue that evidence concerning employee turnover
following Respondent's unfair labor practices is ir-
relevant to the issue of whether or not a bargaining
order continues to be warranted. Further, they
argue that a change in the Board's policy to re-
quire consideration of changes in the unit over time
would defeat the purposes of the Act by encourag-
ing employers to remain intransigent in the hope
that the passage of time and employee turnover
would nullify the bargaining obligation. Also, the
General Counsel relies on the presumption that
new employees support the union in the same num-
KEYSTONE PRETZEL BAKERY, INC. 335
bers as those who left5 in arguing that mere turn-
over in the unit is an insufficient reason to modify
the Board's bargaining order. The General Counsel
and the Charging Party additionally point out that
Respondent's unfair labor practices have never
been remedied, and contend that the coercive
impact of those unfair labor practices continues.
The General Counsel also argues that Respondent
was not prejudiced by the Board's delay in seeking
enforcement because Respondent could have filed
its own petition under Section 10(f) of the Act had
it desired earlier court review of the Board's
Order. Finally, the General Counsel and the
Charging Party have indicated their willingness to
accept as true Respondent's allegations concerning
employee turnover in the unit, but oppose the
holding of an additional hearing.
Upon consideration of the parties' statements of
position, we have concluded that further hearing is
unnecessary. Instead, we shall admit into evidence
the affidavit attached to Respondent's motion
before the court and accept as true the allegations
contained therein. 6 The Board, having accepted
the remand of the instant case, respectfully recog-
nizes the court's order as the law of the case in
considering whether or not intervening events have
vitiated the need for a bargaining order; according-
ly, we shall consider whether this evidence war-
rants modification of the Board's Order.
Respondent's unfair labor practices, as summa-
rized in the Board's original Decision, included
conduct which, in the Board's experience, tends to
have a continuing effect on employee freedom of
choice long after the conduct has ended. Thus,
upon learning through an unlawful solicitation of
grievances that its failure to give pay raises was a
major source of employee discontent, Respondent
promptly raised the pay of virtually every unit em-
ployee. Such an unprecedented pay raise in the
midst of a union campaign has been found to be
particularly coercive because it eliminates "the
very reason for a union's existence. " 7 That effect
was further heightened in this case because the pay
raise followed-and rewarded-the employees'
5 In this regard, the General Counsel relies on, inter alia, Gregor'r
Inc, 242 NLRB 644 (1979), and Jot, Costa Trucking Company: Edjo. Inc.
d/b/a Joe Costao Trucking 238 NLRB 1516 (1978).
6 Although Respondent in its statement of position urges the Board to
hold a hearing to permit it to adduce "up-to-date evidence reflecting the
employment status" of unit employees, we note that it does not assert
that substantial further employee turnover has occurred since September
5. 1980. Respondent additionally argues that a hearing should be held to
adduce evidence concerning "the present desires of the employees
regarding union representation," the representations made by the union
card solicitors in obtaining the cards relied on to show majority status,
and the correctness of the Board's unit determination which resulted in
the exclusion of certain individuals from the bargaining uit Hloweer.
Respondent did not previously raise such issues in its motion to the court
and these matters are not encompassed within the court's remand.
7Teledyne Dental Products Corp 210 NLRB 435 (1974)
"vote" in an unlawful poll which revealed that Re-
spondent's unlawful campaign had been so success-
ful that not one employee indicated support for the
Union. Thus, the lesson to be learned by Respond-
ent's employees was that the rejection of a union
was the means by which to assure the receipt of
improved wages and benefits. A corollary to this
lesson, which has been recognized by the Board
and courts, is that the employees' departure from
this preferred antiunion stance may result in the
withholding of benefits in the future. 8 Such a
lesson, once learned, is not forgotten quickly but
continues to exert a restraining influence on em-
ployee free choice.
Nothing in the evidence presented by Respond-
ent indicates that the employee turnover since the
election has vitiated the effect of these unfair labor
practices. Thus, nearly half of the current employ-
ees were employed while Respondent was engaged
in its campaign of surveillance, interrogation, solici-
tation, and the implied promise to remedy griev-
ances, and the actual grant of benefits as a reward
for their rejection of the Union. Further, all 14 of
the current unit employees who were in Respond-
ent's employ at the time of the unfair labor prac-
tices received the pay raise which we have found
to be unlawful. Thus, a substantial portion of the
current employee complement was not only in a
position to be aware of Respondent's unlawful ac-
tions, but, in fact, was subjected to such unlawful
conduct. Finally, Respondent's conduct remains
unremedied and at no time has Respondent given
assurances to its employees that such conduct will
not recur.
We further find that the passage of time from the
date of Respondent's unlawful conduct has not ren-
dered a bargaining order inappropriate. Assuming,
arguendo, that Respondent is correct in alleging
that a majority of its employees no longer supports
the Union, any current expression of employee sen-
timent is necessarily tainted by the lingering effect
of Respondent's unfair labor practices. In any
event, the Board and courts have long held that a
union's loss of majority status following the com-
mission of unfair labor practices by an employer
sufficient to warrant the issuance of a bargaining
order does not require a change in the Board's re-
medial order, for "a requirement that union mem-
bership be kept intact during delays incident to
hearings would result in permitting employers to
profit from their own wrongful refusal to bar-
' See. eCg N R Bt ExiAchang Pairt C(omlpatns. 3' ' S 4)5. 40t)
(1964) Respondent's illi ngness to retaliate against emplo!es \%ho sup-
ported the Union is exemplified h its actio in ss llthholdiig wage Irl-
crease romn emplosce Hall ill , i, liill , Sil e CC 81()(3) of he ct
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gain."9 The delay in the Board's issuance of its De-
cision and in seeking enforcement of its Order in
this case, while regrettable, does not alter our con-
clusion in this regard. Such delay has in no way di-
minished the coercive effect of Respondent's seri-
ous and extensive unfair labor practices. Further,
we find that Respondent has suffered no prejudice
from the delay and note that Respondent at all
times had the option, which it chose not to exer-
cise, of seeking court review under Section 10(f) of
the Act. '0
In view of the foregoing and the findings in the
Board's original Decision, we conclude that neither
the passage of time nor employee turnover in the
9 Franks Brothers Company v. N.L.R.B., 321 U.S. 702, 704 (1944). See
also Hedstrom Co. v. N.L.R.B., 629 F.2d 305, 321 (3d Cir. 1980),
N.L.R.B. v. L. B. Foster Company, 418 F.2d I, 4, 5 (9th Cir. 1969), cert.
denied 397 U.S. 990 (1970), and Gibson Products Company of Washington
Parish. La., Inc., 185 NLRB 362 (1970).
'0 See N.L.R.B. v. Pool Manufacturing Co., 339 U.S. 577, 581 (1950),
where the Court in similar circumstances stated. "The employer, who
could have obtained review of the Board order when it was entered,
[Section] 10(f), is hardly in a position to object."
bargaining unit has dissipated the impact of Re-
spondent's unfair labor practices, and therefore that
the possibility of erasing the effects of Respond-
ent's unfair labor practices and of ensuring a fair
election through the use of traditional remedies re-
mains slight. Accordingly, we adhere to our origi-
nal conclusion that the employees' sentiment, as ex-
pressed through their authorization cards, would be
better protected by our issuance of a bargaining
order than by traditional remedies. Accordingly,
we shall reaffirm the prior Order in this case.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby reaffirms its Order of May 24,
1979 (at 242 NLRB 492), and orders that the Re-
spondent, Keystone Pretzel Bakery, Inc., Lancas-
ter, Pennsylvania, its officers, agents, successors,
and assigns, shall take the actions set forth in the
said Order.