Renner Plumbing, Heating & Air Conditioning, Inc.

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Renner Plumbing, Heating & Air Conditioning, Inc. and Local Union No. 5, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, AFL-CIO. Cases 5-CA-3897 and 5-RC-6069 November 19, 1969 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On August 13, 1968, the National Labor Relations Board issued a Decision and Order 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 ordering, inter alia, Respondent to bargain with the Union as the exclusive representative of all the employees in the unit found appropriate. Thereafter, on July 14, 1969, upon the motion of the parties, the case was remanded by the United States Circuit Court of Appeals for the Fourth Circuit, in order that the Board might reconsider, in light of the Supreme Court's decision in N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, its finding that Respondent violated Section 8(a)(5) of the Act and its order requiring the Respondent to bargain with the Union. Thereafter, the General Counsel, the Respondent, and the Charging Party filed Statements of Position on the remanded case 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 entire record, including the Statements of Position, and affirms its original finding and order for the reasons stated below. In our original decision we found, in agreement with the Trial Examiner, that Respondent had engaged in a' number of violations of Section 8(a)(l ) of the Act after learning of the Union's interest in representing the , employees Thus, through Superintendent Fries and President Renner, employees were questioned about "what the guys wanted," coupled with the comment that the payrate would be lowered if the Union came in, it was observed that the ' coffee break ' 'would be discontinued if the Union came in; the rumor was circulated that there would be a loss of business from local contractors if the Union came in; it was indicated that if the Union was successful, transportation to out-of-town jobs would no longer be furnished; employees were told that Respondent had "something stewing in the pot" for them but 1172 NLRB No 172 could not discuss it with them because of the Union's presence on the scene; and employees were told that if the Union came in with higher wages Respondent could no longer provide so-called "shop time" during slack periods in the winter months. With respect to the 8(a)(5) allegation, the Board, in agreement with the Trial Examiner, found that the Union had obtained valid authorization cards from a majority of the employees and that Respondent's refusal to bargain was violative of Section 8(a)(5) of the Act. We, therefore, issued a bargaining order. Insofar as is relevant here, the Supreme Court in Gissel, supra, in stating the general principles applicable to the issuance of bargaining orders, agreed that the Board has 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 the unlawful effect of those [unfair labor practices]."2 Additionally, the Court approved the Board's authority to issue a bargaining order "... in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes." In the latter situation, the Board is to examine the nature and extent of the employer's unlawful conduct and ascertain the likelihood that use of traditional remedies would have ensured a fair election. In applying these general principles to the cases before it, the Court remanded three of them to the-Board for a determination as to "[whether] even though traditional remedies might be able to ensure a fair election 'there was insufficient indication that an' election (or a rerun . . . ) would definitely be a more reliable test of the employee's desires than the card count taken before the unfair labor practices occurred."3 Having carefully reconsidered the instant matter, we are of the opinion that the Respondent, by engaging in the foregoing conduct and refusing to recognize the Union as majority representative of its employees, violated Section 8(a)(5) and (1) of the Act. Further, we are persuaded that a bargaining order is justified to remedy that violation, for Respondent's pattern of unlawful conduct was of such a nature as to have a lingering effect and use of traditional remedies here would have been unlikely to ensure 'a fair or coercion-free rerun election.4 We are persuaded that the cards validly executed by a majority of the employees in the unit represent a more reliable expression of the employees' choice in this case, and that the policies of the Act will be effectuated by the imposition of a bargaining order. Accordingly, we shall reaffirm the 'NLRB v Gissel. supra at 615 'ld at 616 'In our original decision we approved the Trial Examiner's 179 NLRB No. 103 RENNER PLUMBING, HEATING & AIR CONDITIONING, INC. findings and remedy provided in the original Decision and Order herein.' Accordingly, we hereby 'reaffirm the Order heretofore issued in this case. 643 recommendation that the representation election held in Case 5-RC-6069 be set aside because the described conduct of Respondent interfered with the exercise of free choice by the employees 'General Stencils, Inc, 178 NLRB No 18, World Carpets, Inc, 176 NLRB No 138 i