Thrift Drug Co., of Pennsylvania

National Labor Relations Board - Board Decisions

Dec 2, 1969

179 N.L.R.B. 827 (N.L.R.B. 1969)

THRIFT DRUG CO. OF PENNSYLVANIA
Thrift Drug Company of Pennsylvania and Retail
Clerks Union Local 526, Retail Clerks
International Association, AFL-CIO. Cases
30-CA-458 and 30-RC-508
December 2, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On September 15, 1967, the National Labor
Relations Board issued its Decision and Order in the
above-entitled proceeding,' finding, inter alia, that
the Respondent had engaged in and was engaging in
certain unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended, and ordering the
Respondent to cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act, including an order directing the
Respondent to bargain with the Union.
Thereafter, on December 11, 1968, the United
States Court of Appeals for the Sixth Circuit
entered its order in this proceeding,: enforcing in full
the Board's 8(a)(l) and (5) findings, and affirming
the Board's factual findings that the Union, on
August 26, 1966, possessed valid designation cards
from a majority of the employees in the appropriate
unit. The Respondent thereafter petitioned the
Supreme Court of the United States for a writ of
certiorari. On June 23, 1969, the Supreme Court
granted the petition for certiorari in the subject case,
vacated the judgment of the Sixth Circuit Court of
Appeals, and remanded the case to that Court with
instructions to remand the case to the Board for
further consideration in light of N.L.R.B. v. Gissel
Packing Company, 395 U.S. 575.
Thereafter, on September 12, 1969, the United
States Court of Appeals for the Sixth Circuit
remanded the instant case to the Board for further
proceedings in conformity with the Supreme Court's
decision in Gissel. On September 23, 1969, the
Board issued a Notice permitting the parties to file
statements of position with respect to the
application of Gissel to this proceeding.
Subsequently, the General Counsel filed a statement
in support of its position. The Respondent, however,
failed to submit a statement of position.3
1167 NLRB No. 57.
'Thrift Drug Company of Pennsylvania v. N L R B. 404 F 2d 1097
'The Respondent did file a motion to reopen the record and remand this
proceeding to the Trial Examiner for the purpose of adducing new evidence
and to secure additional findings of fact and recommendations by the Trial
Examiner . The General Counsel filed an opposition to the Respondent's
motion We find no merit in the Respondent's contention that because the
decision of the Court of Appeals enforcing the Board 's order was vacated
by the Supreme Court, due process requires that this matter be remanded
to the Trial Examiner . Since all pertinent and relevant issues have been
fully litigated, and as no newly discovered evidence is offered, the
827
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 reconsidered its prior Decision and
Order, the General Counsel's statement of position,
and the entire record in these cases, and hereby
reaffirms its Decision and Order for the reasons
indicated below.
In its initial decision, the Board found that
beginning immediately after the Union's demand for
recognition on August 26, 1966, the Respondent
violated Section 8(a)(1) of the Act by threatening
employees that the Kenosha store or its fountain
department would be closed down or that they
would lose their store or food discounts; by
promising them wage increases and other benefits;
by coercively interrogating them as to how they
were going to vote, or whether they had attended
union meetings; by intimidating them through its
orders to reject applications for employment from
prounion applicants; and by telling them that their
attendance at union meetings had been observed.4
The Board also found that at the time of the
original bargaining demand, the Union represented
a majority of the Respondent's employees in the
appropriate unit. The Board further found that by
rejecting the Union's request for recognition and
bargaining and thereafter engaging in pervasive and
substantial unfair labor practices designed to destroy
the Union's majority, and by unilaterally changing
wage rates without notice to the Union, the
Respondent violated Section 8(a)(5). The Board
issued a bargaining order, finding, inter alia, that
even if the Respondent had acted in good faith in
insisting on an election, such an order was necessary
to remedy the violations of Section 8(a)(1) which
dissipated the Union's majority and prevented a free
election.
We have carefully reconsidered this matter in the
light of the Supreme Court's opinion in Gissel, and
arrive at the same conclusions we did before. In
finding a violation of Section 8(a)(5), we do not,
however, rest that finding on the Respondent's lack
of good faith in refusing to recognize the Union. We
find, rather, that by refusing to bargain with the
Union and by engaging in the serious unfair labor
practices, delineated above, in order to undermine
the Union's majority status, the Respondent violated
Section 8(a)(5). Moreover, Respondent's pervasive
and substantial unfair labor practices were of such a
nature as to make it unlikely that their coercive
effects could be eliminated by traditional remedies
so as to ensure a fair election. Under these
circumstances, the purposes of the Act can better be
effectuated by reliance on the employees' desires as
Respondent ' s motion is denied
The Board found that the Respondent by such conduct interfered with
the election held on October 12, 1966, set the election aside , and dismissed
the petition in Case 30-RC-508
179 NLRB No. 139
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expressed by signed authorization cards than on the SUPPLEMENTAL ORDER
results of a rerun election. Therefore, the bargaining
order previously issued to remedy the Respondent's In view of the foregoing, and on the basis of the
unfair labor practices is appropriate to remedy its record as a whole, the National Labor Relations
violations of Section 8(a)(5) and (1) of the Act and Board hereby reaffirms its Order of September 15,
we shall affirm it. 1967, in this proceeding.