Solvay Baking Co.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 418 (N.L.R.B. 1969)

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chris Christou d/b/a Solvay Baking Company and
Dairy & Bakery Salesmen & Dairy Employees
Local Union 316, affiliated with the International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
3-CA-3624
December 16, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On June 16, 1969, the National Labor Relations
Board issued its Decision in the above-entitled
proceeding,' finding that the Respondent had
engaged in certain conduct in violation of Section
8(a)(1) and (5) of the National Labor Relations Act,
as amended, and ordering the Respondent to take
certain affirmative action , which included an order
to bargain with the Union upon request. Thereafter,
on November 6, 1969, the Board, by its Associate
Executive Secretary, issued a notice informing the
parties that it had decided to reconsider, in light of
the guidelines announced in N.L.R .B. v. Gissel
Packing Co.,' both the 8(a)(5) finding and the
bargaining order . The notice invited the parties to
file statements of position on these issues. The
General Counsel and the Respondent have filed such
statements.
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.
The Board has considered the statements of
position and the entire record in this proceeding
and, for the reasons set forth below, has decided to
reaffirm both its finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by
refusing to recognize the Union as majority
representative of the employees , and its conclusion
that a bargaining order in this case is necessary to
effectuate the purposes and policies of the Act.
The Supreme Court in Gissel, so far as is relevant
here , agreed that the Board has 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 [is] necessary to
repair the unlawful effect of those [unfair labor
practices]."' The Court also approved the Board's
authority to issue bargaining orders in less
extraordinary cases, involving less pervasive
practices , when the Board decides that "even though
traditional remedies might be able to ensure a fair
election , there [is] insufficient indication that an
'176 NLRB No. 92.
'395 U.S. 575.
election (or a rerun ...) would definitely be a more
reliable test of the employees' desires than the card
count taken before the unfair labor practices
occurred."'
We think a bargaining order is warranted under
either of the above standards by the facts of this
case. Thus, almost immediately upon receipt of the
Union's demand for recognition and bargaining,
which was based on the fact that it had
authorization cards from four of the five employees
in the unit,' Respondent initiated a continuous and
pervasive campaign of restraint , coercion, and
interference against three of the employees on whose
support the success or failure of the Union's effort
depended.' The record clearly establishes that
Respondent, about a week prior to the election, told
one of the employees, Woosley, who, he apparently
believed , was the instigator of the movement, to
come to him if he ever had a problem; Respondent's
son engaged in illegal interrogation of this employee
with respect to his union activities and impliedly
threatened him a few days after he had signed a
card; and, approximately a week later, another of
Respondent's sons left his customary inside job to
ride with Woosley on his route and at this time
threatened that Woosley would have cause to regret
his advocacy of the Union and told him that he and
the other employees were being spied upon. As for
the two other employees who were union supporters,
they were , within a matter of 2 or 3 days after they
had signed cards, subjected to unlawful interrogation
about their union membership and voting intentions.
The foregoing unlawful conduct not only
precluded the holding of a fair election in the
representation proceeding the Union had instituted,
but, in our judgment, was of a sufficiently pervasive
and extensive character , considering the small size
of the unit, to have likely served its intended
purpose of undermining the Union ' s preexisting
majority. In these circumstances, we believe that
restoration of the status quo ante is required in
order to vindicate employee rights and prevent the
Respondent from profiting from its own unfair labor
practices. We are further of the opinion that the
lingering effects of the Respondent ' s past coercive
conduct renders uncertain the possibility that
traditional remedies can ensure a fair election. We
therefore conclude, on 'balance, that Respondent's
majority card designations obtained before the
unfair labor practices occurred provide a more
reliable test of employee representation desires, and
better protect employee rights than would a rerun
election . Accordingly, we find that by refusing to
1395 U.S. at 615
'395 U S. at 616
'The status as a supervisor of one of the employees whose signature was
on a union authorization card was not resolved by the Trial Examiner or
the Board . However, by agreement of the parties , this employee did not
vote in the election
'Of the five employees in the unit , one was unalterably opposed to the
Union and the remaining one was considered by Respondent to be a
supervisor
180 NLRB No. 25
CHRIS CHRISTOU D/B/A SOLVAY BAKING CO.
recognize and bargain with the Union and by
engaging in the aforesaid unfair labor practices, the
Respondent violated Section 8(a)(5)7 and (1) and
that the policies of the Act will best be effectuated
by imposition of a bargaining order to remedy such
violations . Under these circumstances , we shall
reaffirm the findings and remedy provided in the
original Decision and Order herein.'
SUPPLEMENTAL ORDER
In view of the foregoing , and on the basis of the
419
record as a whole, the National Labor Relations
Board reaffirms its Order of June 16, 1969, in this
proceeding.
'Although not essential to our finding of an unlawful refusal to bargain
herein , our conclusion that Respondent violated Section 8(a)(5) is
buttressed by the fact that after the Union made its second bargaining
demand , Respondent 's attorney visited the Union ' s offices and examined
the authorization cards on which that demand was based and apparently
questioned only one employee 's card , on the ground that he was a
supervisor. After looking at the Union 's contract , the attorney said he
would recommend that Respondent recognize the Union
'All-Tronics. Inc. 179 NLRB No 19; Genera! Stencils, Inc., 178 NLRB
No. 18; World Carpets . Inc, 176 NLRB No 138.