Ll'l General Stores, Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1971

188 N.L.R.B. 839 (N.L.R.B. 1971)

LI'L GENERAL STORES, INC.
Lill General Stores, Inc., and Retail, Wholesale & De-
partment Store Union, Local 885 , AFL-CIO
Lill General Stores, Inc., and Retail . Wholesale & De-
partment Store Union, Local 885, AFL-CIO. Peti-
tioner. Cases 12-CA-3730 (2-3), 12-CA-3803, and
12-RC-2661 .
March 5, 1971
SUPPLEMENTAL DECISION
By MEMBERS FANNING, BROWN , AND JENKINS
On March 28; 1968, 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 certain unfair labor
practices within the meaning of Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended,
and ordering the Respondent to cease and desist
therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act, including
bargaining with the Union upon request.
On February 12, 1970, the United States Court of
Appeals for the Fifth Circuit handed down its opinion
in N:L.R.B. v. Li'L General Stores, Ine. 422 F.2d 571
(rehearing denied May 11, 1970), sustaining the
Board's unfair labor practice findings and enforcing
the Board's Order ekcept for the bargaining provision
which it remanded to the Board for further considera-
tion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended; the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
Statements of position on the remanded issue were
filed with the Board by the Respondent and the Gen-
eral Counsel and they have been duly considered.
The court accepted the Board's findings that on
December 9, 1966, when the Union filed its petition,
it had obtained valid authorization cards from 19 of
the 23 employees in an appropriate unit; and that
between that date and March 10, 1967, when the Un-
ion lost the election by a vote of 16 to 8, the Respon-
dent violated Section 8(a)(1) and (3) of the Act by
threatening to discharge employees and hire replace-
ments, promising benefits, increasing workloads and
written warning notices, withholding a companywide
wage increase from unit employees, and discharging
three known union adherents.' The court also accept-
170 NLRB No 94
2 On March 16, 1960, the Respondent filed with the Board a motion for
amendment or modification of order. The General Counsel filed an opposi-
tion thereto . The motion prays that the name of William Sowers be removed
from the order and notice of the Board 's original Decision and Order herein,
or that certain other alternative relief be granted The Respondent contends
839
ed the Board's conclusion that the Union's loss of the
election could reasonably be attributed to the
Respondent's misconduct, and that in view of the
severity of that misconduct there was little likelihood
that a fair second election could be held. However, the
court declined to enforce the Board's bargaining or-
der because the Union, before petitioning for the elec-
tion, did not inform the Respondent of its card
majority and request recognition on that basis. The
court remanded the case for the Board to determine
*hether the Respondent was aware of the Union's
authorisation card majority from other sources.
We have reviewed the record in this case, and we
find ample evidence that the Respondent knew the
Union represented a majority of the employees. Thus,
within a week of the filing of the petition, Corporate
Secretary and Company Counsel Burton accompa-
nied by two division managers, visited each of the
West Palm Beach division stores in the unit. Upon
their arrival at each store, Button took each employee
in this relatively small unit individually into a back-
room and discussed the union campaign with him.
During this period management officials engaged in
extensive interrogation of the unit employees as to
their present union feelingk and past union affilia-
tions. When Burton reached employee Martinez, he
admitted to Martinez, as the Trial Examiner found
and the record shows, that the Respondent knew the
names of all the Union's members. To the same effect,
Respondent's president, Hoornstra, asked employee
Perez why the employees in District 7 wanted union
representation. Burton also told Martinez that the
Respondent would fight the Union before and after
the election and even close the stores. Burton further
told Store Manager Sutton that he (Burton) had au-
thority from the company president to "replace all the
employees of the district ... one by one" if necessary.
(Emphasis supplied.) Thereafter, the employees were
invited to meet with Burton at a local motel where a
meal would be served and the Respondent's position
on the union campaign would be discussed. When
only 6 of the 23 unit employees appeared at Burton's
party, the Trial Examiner found and we agree that the
Respondent discovered that its efforts to defeat the
Union had been insufficient as the Union still had a
large following. Stronger measures being therefore
called for, the Respondent stepped up its unfair labor
practices, as described above, including the discharge
of three known union adherents'
that Sowers engaged in subsequent misconduct , that a warrant for his arrest
has been issued, and that he is now a fugitive from justice and cannot be
found As the ground asserted in the motion consists solely of an allegation
of criminal conduct for which Sowers has not been convicted , we find it
affords insufficient basis for any further action at this time Cf. Roy L
Burnham, a Sole Proprietor, d/b/a/ Bob 's Ambulance Service 183 NLRB No
95 In view of the nature of this contention, Respondent may wish to raise
the issue again at the compliance stage of this proceeding.
3 We note that Burton, in a conversation with Kenneth Tambor, whom the
(Continued)
188 NLRB No. 117
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In all the circumstances of this case, we find the
foregoing evidence sufficient to warrant the inference
that the Respondent knew that the Union represented
a majority of the employees, and that it deliberately
and knowingly launched a campaign to destroy that
majority. For these and other reasons explicated in
the Board's original Decision and Order, we find that
a bargaining order is appropriate as a remedy for the
Respondent's extensive Section 8(a)(1) and (3) viola-
tions!
Respondent subsequently discharged because of his known union adherence,
referred to Tambor's failure to attend the motel party
Accordingly, we hereby reaffirm the Board 's Deci-
sion and Order in this case.
N L.R B v. Gissel Packing Co., Inc, 395 U.S 575, 594,614 In reasserting
our conviction that knowledge of the union 's majority status is not a prere-
quisite to the issuance of a bargaining order in a case like this, we rely on
the Supreme Court's mandate in Gissel Packing Co that a bargaining order
is appropriate as a remedy for 8(aXl) violations , "in the absence of a § 8(a)(5)
violation or even a bargaining demand . "; that an employer's state of mind
is "largely irrelevant" to the propriety of a bargaining order where the em-
ployer has taken unlawful action to undermine a union 's representative
status; and that "the key . . is the commission of serious unfair labor
practices that interfere with the election processes and tend to preclude the
holding of a fair election "