S. E. Nichols- Dover, Inc.

S. E. NICHOLS - DOVER, INC. 249 S. E. Nichols - Dover, Inc.; Spencer Shoe Corporation and Imac Food Systems, Inc. and Retail Store Employees Union, Local No. 692 Retail Clerks International Association, AFL-CIO. Case 5-CA-3664 October 21, 1969 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On October 18, 1967, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding,' finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8(a)(I), (3), and (5) of the National Labor Relations Act, as amended, and ordering the Respondents to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act including an order directing the Respondents to bargain with the Union. Thereafter, the Board filed a petition for enforcement of the Order with 'the United States Court of Appeals for the Third Circuit On June 16, 1969, the Supreme Court of the United States issued its opinion in N 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 upon such violation or violations of other sections of the Act. On August 4, 1969, the Third Circuit issued its decision in which it affirmed the Board's conclusions that Respondents had violated Section 8(a)(1) and (3) of the Act. The Court further found that, on the date the Union demanded recognition, it held valid authorization cards from a majority of the employees and "that Nichols refused to bargain under Section 8(a)(5) by attempting to undermine this majority . . . However, pursuant to the Board's suggestion, the Court remanded the Section 8(a)(5) portion of the case to afford the Board an opportunity "to consider its remedial bargaining order in the light of Glssel "Z Pursuant to the Court's remand the Board issued a Notice inviting the parties to submit statements of position with respect to the application of Gissel to this proceeding. Respondents and the General Counsel filed statements in support of their respective positions. We have again reviewed the entire record, including the statements of position, and '167NLRB No 121 'N L R B v S E Nichols - Dover Inc, 414 F 2d 561, (C A 3) 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 the Respondents had engaged in violations of Section 8(a)(I) and (3) in that they coercively interrogated employees concerning their union sympathies and activities; solicited employees to withdraw union designation cards previously signed and assisted employees in effectuating withdrawals, created an impression of surveillance of the union activities of employees; and discriminatorily discharged two union adherents. The Board also found that at the time of its original bargaining request the Union held valid authorization cards from a majority of the employees in an appropriate unit and that Respondents violated Section 8(a)(5) when they refused to bargain with the Union. Having carefully considered the matter, we find that the violations of Section 8(a)(1) and (3) were of such an egregious and pervasive character that the possibility of erasing their coercive effects and ensuring a fair election by the use of traditional remedies is slight 3 In these circumstances, we are of the opinion that the rights of the employees and the purposes of the Act may be best effectuated by reliance on the employee sentiments expressed by the authorization cards and that a bargaining order should issue.' Accordingly, we shall reaffirm the findings and remedy provided in our original Decision and Order ORDER Based on the foregoing and the entire record in this case, the National Labor Relations Board hereby affirms the Order issued in this proceeding on October 18, 1967. We note that this is the third in a series of unfair labor practice proceedings arising out of efforts of Respondent Nichols to prevent unionization of the Dover facility In S E Nichols - Dover , Inc 159 NLRB 1071, enfd 374 F 2d 115 (C A 3), the Board affirmed the Trial Examiner's findings of discriminatory discharge , interrogation of employees , and surveillance of union activities in the Employers' effort to counter the Union's initial attempt to organize employees following the store's opening in August 1965 Organization efforts lapsed for 10 months When organization was resumed it was met by concerted employer opposition which led to an eventual finding by the Board that Respondent Nichols was guilty of discriminatory discharge, interrogation of employees, surveillance of union activities , unlawful solicitation of revocations of employee authorization cards, and the unlawful promising and conferral of benefits during the organization campaign S E Nichols - Dover, Inc , 165 NLRB No 135 The instant case presents a continuation of the pattern of antiunion activity at the Dover store We also note that efforts by this union to organize employees at the Elmira , New York store owned by Nichols' parent corporation gave rise to the commission of unfair labor practices See N L R B v S E Nichols Company, 380 F 2d 438 (C A 2) IN L R B v Gisce/ Packing Company, 395 U S 575, 614 179 NLRB No. 44