Henry Colder Co.

118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Henry Colder Company and Retail Store Employees Local No. 44, affiliated with Retail Clerks Inter- national Association , AFL-CIO. Cases 30-CA-124 and 30-CA-167 June 30, 1970 SECOND SUPPLEMENTAL DECISION AND ORDER DENYING MOTIOt' By MEMBERS FANNING , MCCULLOCH, BROWN, AND JENKINS The National Labor Relations Board, on Februa- ry 27, 1970, following consideration of the parties' statements of position with respect to the effect of N.L.R.B. v. Gissel Packing Company, 395 U.S. 595, on the Board's original Decision and Order,' issued a Supplemental Decision herein.' In its Supplemen- tal Decision, the Board affirmed its finding that the Respondent violated Section 8(a)(5) of the Act by refusing, on and after October 19, 1964. to recog- nize and bargain with the Union which represented a majority of the employees in the appropriate unit, and its Order that the Respondent bargain with the Union. On March 26, 1970, the Respondent filed a mo- tion to reopen the record, to which was attached an affidavit from its general manager asserting that of the 33 employees employed in the bargaining unit as of March 20, 1970, only 4 had been employed at the time of the damand for recognition by the Union in October 1964. In its motion, the Respon- dent moves the Board to reopen the record to ad- duce evidence of such turnover in order to recon- sider the propriety of the Board's finding that a bar- gaining order is appropriate, and asks that the ac- tion of the Board in its Supplemental Decision be stayed. The Board, having duly considered the matter, herewith denies the motion filed by the Respon- dent, for the following reasons: 1. The motion does not comply with the Board's Rules and Regulations. By notice dated November 7, 1969, the parties were given until November 21, 1969, to file with the Board statements of position with respect to the effect of the opinion of the Supreme Court of the United States in N.L.R.B. v. Gissel Packing Company, supra, on the bargaining order originally issued in this case . In its statement of position filed in response to the notice, the Respondent argued that the lapse of time since the Union's demand for recognition was a factor which the Board should consider in deciding whether to 1163 NLRB 105 ' 181 NLRB 320 ' The Board finds that the instant case is procedurally distinguishable from N L R B v American Cable Systems, Inc, 427 F 2d 446 (C A 5) The reaffirm its bargaining order or to direct an elec- tion. The Respondent made no contention based upon turnover. The Board duly considered the lapse of time, as stated in the Board's Supplemental Decision, but found that it did not prevent affirma- tion of the bargaining order. The present motion does not comply with applicable Section 102.48(d) of the Board's Rules and Regulations, Series 8, as amended, in that (1) it is not supported by an al- legation or evidence that the matters raised therein are in the nature of newly discovered evidence or for any other merireason merit consideration at this stage of this proceeding; and (2) in the light of (1), since the Respondent's motion was filed more than 20 days after the Board's Supplemental Decision, it therefore is untimely. 2. In any event, the Board finds that the motion is lacking in merit. The Board interprets the opinion of the Supreme Court of the United States in N.L.R.B. v. Gissel Packing Company, supra, 610-13, as permitting the issuance of a bargaining order where, as here, the standards therein are met, regardless of the passage of time and the union's loss of majority by turnover or otherwise since the commission of the unfair labor practices and the union's demand for recognition. See, e.g., Horace Simmons, d/b/a Vaca Valley Bus Lines, 179 NLRB 641. See also N.L.R.B. v. L. B. Foster Company, 418 F.2d 1 (C.A. 9), cert. denied 397 U.S. 9903' As the court of appeals pointed out in Foster, to permit turnover to preclude the issuance of a bargaining order would "be an added inducement to the em- ployer to indulge in unfair practices in order to de- feat the union in an election. He will have as an ally, in addition to the attrition of union support in- evitably springing from delay in accomplishing results, the fact that turnover itself will help him, so that the longer he can hold out the better his chances of victory will be." (Supra, 5.) Once an employer's obligation to recognize and bargain with a union arises, the union's majority status must be presumed to continue and may not be attacked at least until the employer has satisfied his statutory obligation. Through prolongation of litigation herein Respondent has thwarted the statu- tory command at all times since 1964, and the Board is not now disposed to reward Respondent's efforts by relieving it of its still unfulfilled obliga- tion. Accordingly, It is hereby ordered that the motion to reopen the record filed by the Respondent on March 26, 1970, be, and it hereby is, denied. court remanded that case for consideration of evidence of turnover proffered before the issuance of the Board 's Supplemental Decision and Order In any event , the Board respectfully disagrees with the court's deci- sion in that case 184 NLRB No. 13