U-Tote M of Oklahoma, Inc.

National Labor Relations Board - Board Decisions

Dec 2, 1969

179 N.L.R.B. 829 (N.L.R.B. 1969)

U-TOTE M OF OKLAHOMA 829
U-Tote M of Oklahoma, Inc. and Retail Clerks
Union Local No. 73, Retail Clerks International
Association, AFL-CIO. Case 16-CA-2955
December 2, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND 13ROWN
On June 25, 1968, 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)(l), (3), and (5) of the National Labor Relations
Act, as amended, and ordering the Respondent to
cease and desist therefrom, and to take certain
affirmative action , set forth therein.
On February 28, 1969, the United States Court of
Appeals for the Fourth Circuit affirmed the Board's
finding of 8(a)(l) and (3) violations and granted
enforcement of the Board's order with respect to
those violations.' The Court deferred ruling on the
8(a)(5) aspects of this case, however, pending the
Supreme Court's decision in N.L R.B. v. Gissel
Packing Company.3 On June 16, 1969, the Supreme
Court of the United States issued its opinion in the
aforementioned case , in which it laid down certain
guidelines relative to the propriety of finding
violations of Section 8(a)(5) based upon union
authorization cards and issuing orders to bargain as
a remedy for such violations or for violations of
other sections of the Act.
Thereafter, on July 3, 1969, the Court of Appeals
for the Fourth Circuit remanded the instant case for
reconsideration by the Board of its Section 8(a)(5)
finding and propriety bargaining order in light of
the guidelines laid down by the Supreme Court. The
Board, having accepted the remand, invited the
parties to file statements of position. Such
statements have been filed by the Respondent 4 the
General Counsel, and the Charging Party.
1172 NLRB No 21
'Fairmont Foods Company lU- Tote M of Oklahoma, Inc I v N L R B,
407 F 2d 828 (C A 4)
'395 U.S 575
The Respondent had previously filed a "Motion to Reopen Record and
For Leave to File Additional Briefs ." The latter request was satisfied when
the Board invited the parties to submit statements of position As to its
motion to reopen the record , the Respondent contends that, because of the
considerable employee turnover and the substantial expansion of the size of
the bargaining unit since the date of the original hearing herein," the
bargaining order heretofore entered in this case by the Board is no longer
appropriate " The Respondent therefore requests that the record be
reopened for the purpose of adducing additional evidence relating to
employee turnover and the expansion of the bargaining unit in view of our
conclusions herein, the Respondent ' s motion, which was opposed by the
Charging Party, is hereby denied An employer who unlawfully refuses to
recognize and bargain with the validly designated bargaining representative
of a majority of his employees while engaging in extensive unfair labor
practices calculated to destroy the union's majority status, cannot
subsequently rely on a change in the composition of the bargaining unit to
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 Court's remand
order, the statements of position, and the entire
record in this proceeding. For the reasons set forth
below, we reaffirm our original finding that the
Respondent violated Section 8(a)(5) and (I) of the
Act by refusing to recognize and bargain with the
Union as the majority representative of its
employees, and that a bargaining order is necessary
to effectuate the purposes and policies of the Act in
this case.
In stating the general principles applicable to the
issuance of bargaining orders, the Supreme Court in
Gissel, supra, agreed that the Board has authority to
issue a bargaining order to redress unfair labor
practices "so coercive that, even in the absence of
an 8(a)(5) violation, a bargaining order would have
been necessary to repair the unlawful effect of those
[unfair labor practices]."' Additionally, in
circumstances where the unlawful conduct is less
flagrant in nature, the Court held that the Board
may find an 8(a)(5) violation and issue a bargaining
order where ". . . the possibility of erasing the effects
of past [unfair labor] practices and of ensuring a
fair election (or a fair rerun) by the use of
traditional remedies, though present, is slight and
. . .[therefore] employee sentiment once expressed
through cards would, on balance, be better protected
by a bargaining order ......6
We are satisfied that a bargaining order is
warranted on the facts of this case under either of
the above standards. As more fully discussed in that
portion of our prior Decision herein which the Court
of Appeals enforced, the Respondent's unfair labor
practices included interrogating employees
concerning their union sympathies and activities;
threatening employees during the course of a
meeting that the Respondent would close the plant
and discharge the employees if they selected a
bargaining representative; telling employees that
their organizing efforts would be futile inasmuch as
the Respondent would never recognize and bargain
with a union; offering independent contractor status
to each of its employees for the sole and express
purpose of defeating their organizing activities; and,
discharging two employees because of their union
activities. The foregoing conduct was widespread
and timed to coincide with the Union's organizing
efforts, occurring both before and after the Union
demanded recognition and presented the Respondent
with signed authorization cards from a majority of
defeat his bargaining obligation Such a holding would not only subvert the
basic principles of the Act, but would allow an employer "to profit from
[his] own wrongful refusal to bargain " Gissel, supra at 610, citing Franks
Bros Co v NLRB , 321 U S 702, 704
'Id p 615
'Id pp 614-615
179 NLRB No. 141
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unit employees. Such interference with employee
exercise of Section 7 rights cannot be termed
insubstantial or isolated, as the Respondent
contends. Rather, we deem them to be so pervasive
and serious in character as would make necessary a
bargaining order even in the absence of a Section
8(a)(5) violation, to remedy the other unfair labor
practices found herein.
In addition, however, we find that the
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. We found in our prior decision
herein that the Union was in possession of valid
authorization cards from a majority of the
Respondent's employees in an appropriate
bargaining unit at the time it demanded and the
Respondent refused recognition. That conclusion
was proper when considered in light of the Supreme
Court's observations in the Gissel case, supra,
concerning reliance on authorization cards to
establish majority status. Thus, the cards were
unambiguous and clearly stated a single object, i.e.,
to authorize the Union to represent the employees in
collective bargaining with the Respondent, and no
misrepresentations were made as to the stated
purpose of said cards. Furthermore, the Respondent
checked the cards against its own personnel records
without questioning the validity of those cards or the
appropriateness of the bargaining unit, and it
challenged the Union's majority only after
embarking upon the extensive unfair labor practice
conduct described above. It is clear from these facts
that the situation here presented is of the type of
which the Court spoke when it said that "in the
absence of any bona fide dispute as to the existence
of the required majority of eligible employees, the
employer's denial of recognition of the union .. .
violated Section 8(a)(5) of the Act." It is equally
apparent that the Respondent here was not in a
position to insist upon an election in view of its
"contemporaneous unfair labor practices likely to
destroy the union's majority and seriously impede
the election.
Finally, we are persuaded that a bargaining order
is justified to remedy the 8(a)(5) violation which we
have found. For, the Respondent's unlawful conduct
has a lingering effect that decreases the possibility
that the use of traditional remedies might ensure a
fair or coercion-free election. In our opinion, the
unambiguous cards validly executed by a majority of
employees in the bargaining unit represent a more
reliable measure of employee desire on the issue of
representation in this case than would an election,
and we conclude that the policies of the Act will be
effectuated by the imposition of such an order.
Accordingly, 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
record as a whole, the National Labor Relations
Board reaffirms its Order of June 25, 1968, in this
proceeding.
'United Mine Workers v. Arkansas Flooring Co. 351 U.S. 62, 69,
quoted and reaffirmed in N L R B. v. Gissel Packing Company . supra,
597-598
'Gissel, supra. 600
'All-Tronics. Inc . 179 NLRB No. 19, and cases cited at fn 4; Hv-Vee
Food Stores, Inc. 178 NLRB No. 101