Hy-Vee Food Stores, Inc.

HY-VEE FOOD STORES 609 Hy-Vee Food Stores, Inc. and Amalgamated Meatcutters & Butcher Workmen of North America, AFL-CIO Local Union 576. Case 17-CA-3650 September 24, 1969 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On February 24, 1969, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceeding, finding that the Respondent had violated Section 8(a)(1) and ( 5) of the National Labor Relations Act, as amended, and recommended that the Respondent be ordered 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 . He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. The Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. On May 21 , 1969, pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the National Labor Relations Board issued its Decision and Order ,' in which it adopted the findings, conclusions , and recommendations of the Trial Examiner , as modified therein. Thereafter , on June 16, 1969, the Supreme Court of the United States issued its opinion in V.L.R.B. v. Gissel Packing Company, 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 7, 1969, the Board in a notice issued by its associate executive secretary informed the parties herein that the Board having duly considered the matter, has decided to reconsider, in light of Gissel , the 8(a)(5) finding of the bargaining order issued in this case.2 On September 5, 1969, Respondent and General Counsel filed with the Board statements of position. Pursuant to the provisions of Section 3(h) 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 reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has reconsidered its prior Decision and Order, the '176 NLRB No 5 'All parties, including the General Counsel , were informed that they may file with the Board in Washington, D C . on or before September 5, 1969, statements of position with respect to the issues set forth above. statements of position thereto, and the entire record in this case, including Respondent's exceptions and brief, and hereby reaffirms its Decision and Order for the reasons indicated below. As is more fully set forth in the Trial Examiner's Decision, the record shows that Respondent, upon receipt of the Union's demand for recognition, immediately embarked upon a course of unlawful conduct which was geared towards coercing its employees to change their minds concerning union representation. Briefly summarizing this conduct, we see that on the same day the Union made its demand for recognition, Marshall, Respondent's store manager. informed employees that Respondent opposed their organizational activities, questioned the meat department employees about their reasons for wanting union representation and threatened Donald Harker that under a union contract he would lose his job. On the same occasion, Smock, the meat department supervisor, proposed that the employees bypass the Union and enter into a contract directly with the Respondent. Later the same day, Marshall threatened Donald Harker and Garry Stanley that their chances of promotion would be adversely affected by unionization of the store. Marshall similarly threatened Joe Harker on August 9. On August 8, Vice President Clemmons coercively interrogated each of the card signers and engaged in a repeat performance on August 12 with three of the five card signers. On August 13 and 14, three employees wrote letters attempting to withdraw and rescind the authorization cards previously signed by them. They informed Marshall of their action. On August 14, Respondent wrote a letter to the Union refusing to recognize it as the representative of the meat department employees assertedly because of its information and belief that the Union did not represent a majority of the employees. The complaint in this case issued on October 15 and was served on Respondent's attorney the next day. A few days later Respondent substantially raised the wages of Joe Harker and Charles Baker, two of the three employees who had signed withdrawals from the Union, in an attempt to insure that they would testify in this proceeding in a manner sympathetic and helpful to Respondent's case. On November 5, 2 weeks before the trial in this case, and again a week later, and still again the night before the hearing, Marshall attempted to pressure Donald Harker into shaping his testimony in this case to fit Respondent's wishes.' The Trial Examiner found that by the foregoing conduct Respondent violated Section 8(a)(1) and (5) 'Marshall wanted Harker to testify that the employees wanted to have an election We take official notice that Respondent filed an RM petition, Case 17-RM-396, on August 19. and that the petition was withdrawn after the complaint in this case issued and Respondent was notified by the Regional Director that he intended to dismiss the petition 178 NLRB No. 101 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act. We agree with and adopt his findings and conclusions in this respect and his Recommended Order. We believe that such order fully comports with the guidelines laid down by the Supreme Court in the Gissel case. Insofar as is relevant here, the Supreme Court in Gissel approved the Board's authority to issue a bargaining order to redress unfair labor practices "so coercive that, even in the absence of an Section 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 [the] past practices and ensuring a fair election (or a fair rerun) by the use of traditional remedies . . . is slight and . . . [therefore] employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order ....'' We are satisfied that a bargaining order is warranted on the facts of this case by either of the above standards. It is apparent that the unfair labor practices committed by Respondent before it rejected the Union's demand for bargaining and the filing of its RM petition, were calculated to, and did, undermine the Union's majority status. Respondent's filing of its RM petition and its later unlawful attempts to pressure employees into testifying that they wanted an election reveal that Respondent was intent upon having the employees' coerced rejection of the Union ratified by a Board conducted election. Respondent's unfair labor practices, however, were so coercive and pervasive as to destroy utterly the conditions necessary to a free election. Accordingly, to remedy these unfair labor practices and to protect employee desires for union representation which, in this case, we find are more reliably reflected b) the authorization cards signed by a majority of' unit employees prior to Respondent's unfair labor practices than would be the results of any election conducted thereafter, our Order shall include provisions requiring Respondent to recognize and bargain with the Union as the exclusive representative of its employees. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Hy-Vee Foods Stores, Inc , Kirksville. Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.