Stayer's Johnsonville Meats, Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1969

179 N.L.R.B. 887 (N.L.R.B. 1969)

STAYER'S JOHNSONVILLE MEATS, INC. 887
Stayer's Johnsonville Meats, Inc. and Meat & Allied
Food Workers, Local 248, AFL -CIO, affiliated
with the Amalgamated Meat Cutters and Butcher
Workmen of North America . Cases 30-CA-834
and 30-RC-877
December 4, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On February 24, 1969, the National Labor
Relations Board issued its Decision in the
above-entitled proceeding,' finding that Respondent
had engaged in certain conduct in violation of
Section 8(a)(l), (3) and (5) of the National Labor
Relations Act, as amended, and ordering
Respondent to cease and desist therefrom and to
take certain affirmative action, set forth therein.
Thereafter, on August 6, 1969, the Board informed
the parties that the Board would reconsider its
Section 8(a)(5) finding and the bargaining order in
this case in the light of the guidelines laid down by
the Supreme Court in N.L.R.B. v. Gissel Packing
Company= and invited the parties to file Statements
of Position. Such statements have been filed by the
General Counsel, the Respondent, and the Charging
Party.
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, shall reaffirm
its original finding that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to recognize
the Union as majority representative of the
employees and concludes that a bargaining order is
necessary to effectuate the purposes and policies of
the Act in this case.
Insofar as is relevant here, the Supreme Court in
Gissel, supra, in stating the general principles
applicable to the issuance of bargaining orders,
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 would have
been necessary to repair the unlawful effect of those
1174 NLRB No. 94
'395 U.S. 575
[unfair labor practices]."3 Additionally, it confirmed
that in less extraordinary cases involving less
pervasive practices, the Board has authority to issue
a bargaining order when it determines that "even
though traditional remedies might be able to ensure
a fair election there was insufficient indication that
an 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." 4
In our opinion, a bargaining order is warranted
on the facts of this case under either of the above
standards. Thus, on the very day that Respondent
learned of the Union's organizational drive, it told
three employees it was granting them wage
increases, put such increases into effect, initiated
wage increases for the rest of the employees
effective in the checks received the next day, and
discharged the employee instrumental in bringing in
the Union. After refusing the Union's demand for
recognition and insisting upon an election,
Respondent, during the electioneering period,
interrogated an employee about his union
proclivities. One week before the election
Respondent sent a letter stating to its employees
with respect to a previously mentioned profit-sharing
plan, . In fact, the profit-sharing plan was
practically set to go, but when this union matter
came up it tied our hands . . . ." The Union, which
possessed valid authorization cards from a majority
of the employees, lost the election, which was set
aside because of Respondent's unlawful conduct.
In our view, the above-described conduct of
Respondent was of such pervasive character as to
require a bargaining order even in the absence of an
8(a)(5) violation, to remedy the other unfair labor
practices in this case. Further, we find that
Respondent, by engaging in the foregoing conduct
and refusing to recognize the Union as majority
representative of its employees, violated Section
8(a)(5) of the Act, and that a bargaining order is
justified to remedy that violation. The character of
Respondent's coercive conduct was such as to make
it uncertain that the use of traditional remedies
would eliminate their lingering coercive effects so as
to ensure a fair rerun election. The unambiguous
cards validly executed by a majority of employees in
the unit are, therefore, in our opinion a more
reliable measure of employee desires on the issue of
representation than would be a rerun election. It
follows that the policies of the Act will best be
effectuated by the imposition of a bargaining order
to remedy the Section 8(a)(5) violation which we
have found. Accordingly, we shall reaffirm the
findings and remedy provided in the original
Decision and Order herein.'
'Id at p 615.
'Id at p 616.
'General Stencils. Inc, 178 NLRB No 18, World Carpets, Inc, 176
NLRB No 138
179 NLRB No. 153
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL ORDER record as a whole, the National Labor Relations
Board reaffirms its Order of February 24, 1969, in
this proceeding.In view of the foregoing , and on the basis of the