Ayer Lar Sanitarium

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ayer Lar Sanitarium and Hospital and Professional Employees Division , Local 399, Service Employees International Union, AFL-CIO. Case 21-CA-7922 November 13, 1969 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On April 30, 1969, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding (175 NLRB No. 119), wherein it ordered, among other things, that the Respondent recognize and bargain with the Union notwithstanding the fact that the Union had not received a majority of the votes cast in a valid election. Subsequently, the Supreme Court of the United States in N L.R B v. Gissel Packing Company, 395 U.S 575, June 16, 1969, upheld a Board bargaining order given under similar circumstances. However, in affirming the Board's action the Court delineated the criteria under which a bargaining order would be appropriate. Accordingly, in view of the Supreme Court's decision, the Board, sua sponte, has reconsidered the subject case, as well as a number of other similar cases, in light of the criteria set forth by the Supreme Court in Gissel, supra, hence the instant supplemental decision. In accordance with Board notice and invitation, statements of position with respect to the impact of the Supreme Court's decision in Gissel Packing Company, supra, on the Board's outstanding Decision and Order in the subject case were filed by the Respondent and General Counsel. 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 statements of position and the entire record in this proceeding and, as set forth below, shall reaffirm its original finding that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize the Union as majority representative of the employees, and further finds that a bargaining order is necessary to effectuate the policies of the Act in this case. As found in our original Decision and Order Respondent's unlawful conduct, which included threats to the employees, interrogation, solicitation, and preparation of withdrawal letters, and a discriminatory discharge, all of which occurred subsequent to the demand for recognition and the filing of the election petition, has undermined the Union's majority strength We are further of the opinion that these unfair labor practices made an election a less reliable indication of the employees' free choice than the cards by which they designated the Union to represent them. Therefore, a bargaining order is warranted. In adopting this remedy, however, we find it unnecessary to rely on the Trial Examiner's finding that Respondent lacked a good-faith doubt as to the Union's majority status. In Gissel Packing Company, supra, the Supreme Court held that a bargaining order is appropriate where an employer rejects a card majority while at the same time committing unfair labor practices that tend to undermine the Union's majority and make a fair election an unlikely possibility. Accordingly, we shall reaffirm the unfair labor practice findings and the remedy provided therefor in the original Decision and Order herein. 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 April 30, 1969, in this proceeding. 179 NLRB No. 94