West Side Plymouth, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 437 (N.L.R.B. 1969)

WEST SIDE PLYMOUTH, INC.
West Side Plymouth, Inc. and Professional
Automobile Salesmen Union , Local 436, affiliated
with Office and Professional Employees
International Union, AFL-CIO. Cases
8-CA-4561-1, -2 and 8-CA-4658
December 16, 1969
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On March 22, 1968, the National Labor
Relations Board issued its Decision and Order in the
above-entitled proceeding ,' and on June 11, 1969, an
amendment thereto, finding that the Respondent
had engaged in and was engaging in certain unfair
labor practices within the meaning 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 designed to effectuate the policies
of the Act, including an order directing the
Respondent to bargain with the Union.
On June 16, 1969, the Supreme Court of the
United States issued its opinion in N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575, in which it
laid down certain guidelines relative to the propriety
of finding violations of Section 8(a)(5) and issuing
orders to bargain based upon such violations or
violations of other sections of the Act. On August
12, 1969, the Board notified the parties of its
decision to reconsider and invited statements of
position . Statements of position have been received
from the Respondent and the General Counsel. We
have again reviewed the entire record including the
statements of position and, having reconsidered the
matter , affirm the Board's original finding and order
in this respect for the reasons stated below.
In its original decision the Board found, in
agreement with the Trial Examiner, that
Respondent had engaged in violations of Section
8(a)(3) and ( 1) in that it discriminatorily refused to
reinstate striking employees, and imposed stricter
and more arduous working conditions upon its
employees because of their selection of a bargaining
representative , and that Respondent had engaged in
violations of Section 8(a)(1) in that it coercively
interrogated employees and threatened its employees
with store closure and loss of employment because
of their selection of a bargaining representative. The
437
Board also found that a majority of Respondent's
employees had signed valid authorization cards for
the Union' and that the Respondent had violated
Section 8(a)(5) and (1) when it refused to bargain
with the Union.
In Gissel, supra, the United States Supreme
Court approved the Board's 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 [their] unlawful effect."
The Court also held that in circumstances where the
unlawful conduct is less flagrant, the Board may
find an 8(a)(5) violation and issue a bargaining
order if it finds that ". . . the possibility of erasing
the effects of past practices and of ensuring a fair
election (or a fair rerun) by the use of traditional
remedies . . . is slight and that employee sentiment .
expressed through cards would, on balance, be
better protected by a bargaining order ..."
Having carefully considered the matter in the
light of the Gissel decision, we reaffirm our original
finding that a bargaining order is necessary and the
only effective remedy for the substantial violations
of Section 8(a)(3) and (1) found herein.
We also find that the violations of Section 8(a)(3)
and (1) were of such a nature as to have such a
lingering effect that the possibility of erasing these
effects and of ensuring a fair election or rerun
election by the use of traditional remedies was
slight. In these circumstances, we are of the opinion
and find that, on balance, the rights of the
employees and the purposes of the Act would be
best effectuated by reliance on the employee
sentiments expressed by the authorization cards.
ORDER
Based on the foregoing and the entire record in
this case , the National Labor Relations Board
hereby affirms its order issued in this proceeding on
March 22, 1968, as amended by its Supplemental
Order issued June 11, 1969.
'170 NLRB No. 98
'Contrary to Respondent's contention , there is nothing in the Court's
opinion in Gissel which would indicate that when used as herein
authorization cards must state affirmatively that they will not be used for
an election Rather, the Court states that where , as here, the cards state
clearly and unambiguously on their face that the signer designates the
Union as his representative they are to be taken at face value, absent
affirmative proof that the signing was a product of misrepresentation or
coercion . Gisse! Packing Co., supra, citing with approval Cumberland
Shoe Corp. 144 NLRB 1268; Levi Strauss & Co, 172 NLRB No. 57
180 NLRB No. 68