Lou De Young's Market Basket, Inc.

National Labor Relations Board - Board Decisions

Feb 9, 1970

181 N.L.R.B. 35 (N.L.R.B. 1970)

LOU DE YOUNG'S MARKET BASKET, INC. 35
Lou De Young 's Market Basket , Inc. and Retail
Store Employees Union , Local No. 20 , Retail
Clerks International Association , AFL-CIO. Case
7-CA-4994
February 9, 1970
SUPPLEMENTAL DECISION AND
ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On June 21, 1966, 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
January 17, 1969, the United States Court of
Appeals for the Sixth Circuit enforced the Board's
order in full. On June 23, 1969, the Supreme Court
of the United States, following its June 16, 1969,
decision in N.L.R B. v. Gissel Packing Company,
395 U.S. 575, granted Respondent's petition for a
writ of certiorari' and vacated the judgment of the
United States Court of Appeals for the Sixth
Circuit with instructions to remand this case to the
Board for further proceedings in conformity with the
said Gissel Packing Company decision. Said remand
to the Board having been duly carried out on
September 12, 1969, the Board, on September 23,
1969, issued a notice3 to the parties, including the
General Counsel, that statements of position with
respect to the Section 8(a)(5) finding and the
bargaining order would be accepted for
consideration by the Board on or before October 7,
1969. The General Counsel, the Charging Party
Union, and the Respondent each filed a statement
of position.4
The Board' has again reviewed the entire record,
including the various statements of position, and
having reconsidered the matter, affirms its original
finding and order for the reasons stated below.
In its original decision the Board found 8(a)(1)
violations based on supervisory threats of job loss,
on interrogation, and on initiation of a
' 159 NLRB 854
'395 U.S. 828.
'Not published in Board volumes.
Thereafter the Union requested leave to file a supplemental statement
which cited the action of the United States Supreme Court on November
10, 1969 , in N.L R B v. Clark's Gamble Corporation , a case relied on by
the Respondent in its statement of position On November 28 the
Respondent filed a supplemental statement and motion to remand to the
Trial Examiner and reopen the record , and then on December I the Union
filed an answer to said motion to remand For reasons appearing herein,
the motion to remand , requesting, inter ilia, that evidence be adduced
concerning employee turnover , is denied
'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
discriminatory no-solicitation rule, all immediately
following the beginning of the Union's organizing
campaign on December 8, 1964, as set forth in
paragraph 1 of the Board's decision. These were
followed on December 11 by the discriminatory
discharges of Albin and Breedlove, as set forth in
paragraph 2 of the Board's decision. An additional
discriminatory discharge - that of Boosamra on
December 9, which was found by the Trial
Examiner - was affirmed by the Board without
discussion, as were additional threats violative of
8(a)(1), including Vice President Wedgwood's
remarks to an employee on December 18 referring
to possible discharges, to automation and layoffs in
his experience elsewhere, and to the Union not
hurting him but only the employees. The Board
also, contrary to the Trial Examiner who specifically
did not reach the question of "the effect of the
Company's interference on free laboratory
conditions for an election," found that a single-store
unit at Grand Rapids was appropriate; that this was
the unit in which the Union made its recognition
demand of December 16, 1964, and that on that
date the Union had a majority of 44 in a unit of 82
or 83 employees. Although the Respondent in its
December 22 letter to the Union expressed a
willingness to bargain if the Union could establish a
majority "of an appropriate group of employees," at
no time did it suggest a unit of its two stores, 22
miles apart, which it later claimed was the sole
appropriate unit. The Board concluded that the
Respondent did not have a good-faith doubt of
majority but was seeking time to thwart the
employees' union activities and dissipate the
majority.
Accordingly, the Board found a violation of
Section 8(a)(5) and ordered the Respondent to
bargain. Thereafter, as indicated above, the United
States Court of Appeals for the Sixth Circuit
enforced this order in full in January 1969. The
Supreme Court's Gissel decision, with landmark
significance in this area of 8(a)(5) bargaining orders,
followed, and the remand herein ensued.
The Respondent contends that the effects of the
unfair labor practices found were shortlived because
they occurred before the Respondent obtained legal
advice on December 19; that they had not prevented
a majority of employees from signing cards by
December 16, a conclusion it views as implicit in the
Board's finding of majority as of that date, and that
there was, therefore, "no reason to expect that after
the practices stopped they would continue to
interfere" before such an election was held.
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 concerning
bargaining orders as a remedy in cases of this sort.
We are satisfied that a bargaining order is
181 NLRB No. 10
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warranted.6 We view the Respondent's unfair labor
practices as so coercive and pervasive as to destroy
the conditions necessary for a free election, and as
precluding neutralization by any conventional
remedies that might have been imposed. 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 in this case.
In its final contention the Respondent urges the
passage of time since this charge was filed on
January 7, 1965, refers to the unit as now containing
only 11 of the original employees, and cites as
dispositive of the passage-of-time and
change-of-circumstances problem the decision of the
United States Court of Appeals for the Sixth
Circuit in N.L.R.B. v. Clark's Gamble Corporation,
407 F.2d 179 (February 11, 1969), directing the
Board to hold an election if it determined that a
substantial change in the identity of the employees
had occurred since the demand for recognition was
made. In that case, which involved 8(a)(1) but not
8(a)(3) violations, the Board's request for certiorari
has since been granted and the case remanded to the
United States Court of Appeals for the Sixth
Circuit for further consideration in the light of
Gissel.7 In the meantime the United States Court of
'See Horace Simmons d/b/a Vaca Volley Bus Lines. 170 NLRB No.
107.
'In Gissel the Supreme Court affirmed the Board 's authority to issue a
bargaining order , though a great length of time has passed since the
Appeals for the Ninth Circuit has taken a view of
this problem contrary to that of the Sixth Circuit as
expressed in February 1969, and has found it
"wholly unrealistic" to appraise "in the light of
subsequent events" the problem of turnover in units
while litigation proceeds, noting, as the Supreme
Court recognized in Gissel, that the "be-all and
end-all" of a union's existence is recognition and
bargaining.8 In light of the Respondent's rejection of
the Union's recognition request supported by card
majority while continuing to commit serious unfair
labor practices that tended to undermine the
Union's majority and make a fair election an
unlikely possibility, we view a bargaining order as
the appropriate, authorized remedy for the 8(a)(5)
violation found. Accordingly, we reaffirm the
findings and the remedy provided in the original
Decision and Order.
commission of the unfair labor practices and the Union no longer
represents a majority of the employees in the unit , saying, at III C. of its
opinion : "We see no reason now to withdraw this authority from the
Board If the Board could enter only a cease -and-desist order and direct an
election or a rerun , it would in effect be rewarding the employer and
allowing him 'to profit from [his ] own wrongful refusal to bargain ,' Frank
Bros . supra. at 704, while at the same time severely curtailing the
employees' right freely to determine whether they desire a representative."
'N L R B v. L B Foster Co. 418 F.2d I (C.A 9), where extensive and
flagrant 8(axl) conduct occurred; nearly 3 years had passed since the
Union was defeated ; the employment turnover was high ; and the Court
said "It is possible that, as of now, there is not a single remaining
employee who was concerned with the original election " Nevertheless the
Court enforced the Board 's bargaining order because "to do otherwise
would put a premium upon continued litigation by the employer "