Red & White Super Markets

National Labor Relations Board - Board Decisions

Dec 2, 1969

179 N.L.R.B. 831 (N.L.R.B. 1969)

RED & WHITE SUPER MARKETS
John P. Krystyniak - d/b/a Red & White Super
Markets and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 590,
AFL-CIO. Case 6-CA-3826
December 2, 1969
SUPPLEMENTAL DECISION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On September 5, 1968, the National Labor
Relations Board issued its Decision and Order (172
NLRB No. 210) in the above-entitled case,
modifying in certain respects the Decision issued by
the Trial Examiner; in all other respects adopting
his findings and conclusions; and ordering the
Respondent to cease and desist from engaging in
conduct violative of Section 8(a)(1) and (5) of the
National Labor Relations Act, and to bargain, upon
request, with the Charging Party.
On July 31, 1969, the United States Court of
Appeals for the Third Circuit denied the
Respondent's petition for review and ordered the
Board's order enforced in full. However, upon a
motion by the General Counsel urging that it would
be appropriate for the Board to reconsider, in the
light of N.L.R.B. v. Gissel Packing Company. 395
U.S. 575, its determination that a bargaining order
should issue, the Third Circuit Court of Appeals, on
September 12, 1969, amended its prior opinion and
remanded the Board's order to the Board for further
consideration.
On September 22, 1969, the Board' issued a
notice to all parties to this proceeding, giving them
leave to file statements of position with respect to
the matter to be reconsidered. The General Counsel
and the Respondent have now filed statements of
position.
The record shows that, in early 1967, in response
to the Union's efforts to organize the employees in
Respondent's three grocery stores, the Respondent
launched an intensive campaign to frustrate
collective bargaining. The Board has found, and the
831
Court has agreed, that the Respondent held mass
meetings of employees at which threats to close the
business and to lay off employees, as well as
promises of benefits if the employees were to reject
the Union, were made. It has further been found
that the Respondent's officials engaged in similar
tactics directed to individual employees and, in
addition, repeatedly engaged in coercive questioning
of one employee about her union activities and those
of other employees, and implied that the union
activities of the employees were under surveillance.
In our opinion, the Respondent's unfair labor
practices were of such an extensive and pervasive
character as to require the issuance of a bargaining
order even in the absence of an 8(a)(5) violation.
The Sinclair Company v. NL.R.B., 393 U.S. 997.
In any event, the natural tendency of the
Respondent's conduct was to make impossible the
holding of a fair election among the employees, and
the lingering coercive effects of such conduct justify
a finding that employee sentiment expressed through
the signing of authorization cards will, on balance,
be better protected by a bargaining order than an
election at this time. While we have considered the
Respondent's bare contention that the "Union may
not possess a majority at the present time," we also
note the affirmation by the Supreme Court in Gissel
of the principle that the Respondent should not be
allowed to profit from his own wrongful refusal to
bargain. At any rate, as we have indicated, it seems
clear to us, from the magnitude of Respondent's
unlawful conduct, that any loss of majority which
the Union might have suffered would be fairly
attributable to the Respondent's efforts to achieve
that end.
Accordingly, we reaffirm our original
determination that the Respondent should be
required to bargain with the Union as representative
of Respondent's employees in the appropriate unit.
'Pursuant to the provisions of Sec 3(b) of the Act, as amended, the
Board has delegated its powers in connection with this case to a
three-member panel
179 NLRB No. 135