Vaca Valley Bus Lines

VACA VALLEY BUS LINES 641 Horace Simmons d/b/a Vaca Valley Bus Lines and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 490, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers .of America. Case 20-C A-4293 November 19, 1969 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On June 17, 1968, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding,' finding that Respondent had committed violations of the National Labor Relations Act, as amended, within ,the meaning of Section 8(a)(1) and (5), and ordering that Respondent cease and desist therefrom and take certain affirmative action. Thereafter, the United States Court of Appeals for the Ninth Circuit remanded the instant proceeding to the Board for reconsideration of the latter's finding that Respondent violated Section 8(a)(5) of the Act and its order requiring Respondent to bargain upon request with the Union, in light of the Supreme Court's decision in N.L.R B v. Gissel Packing Company, 395 U.S. 575, June 16, 1969. Subsequently, on August 1, 1969, the Board issued a Notice2 to the parties, including the General Counsel, that statements of position with respect to the above-stated issue would be accepted for consideration by the Board on or before August 15, 1969. The General Counsel filed a Statement of Position The Respondent stated its position in a letter addressed to the Associate Executive Secretary. The Board' has again reviewed the entire record, including the General Counsel's Statement and the Respondent's letter, and having reconsidered the matter, affirms its original finding and order for the reasons stated below In its original decision, the Board found, in agreement with the Trial Examiner, that Respondent engaged in numerous violations of the Act within the meaning of Section 8(a)(1) at various times material hereto, in that Respondent coercively interrogated employees with respect to their union activities and sympathies and the activities of other employees; threatened to close down its operations if its employees' selected a union; threatened to discharge employees if they continued to engage in 171 NLRB No 179 'Not published in Board volumes '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 union activities; gave employees the impression that it was engaged in surveillance of their union activities; stated that it would not deal with the Union; and physically assaulted an employee for engaging in union activities. With respect to the Section 8(a)(5) allegation, the Board found that on October 24, 1966, the day on which the Union made its demand for recognition, the Union represented a majority of employees in the appropriate unit, as three of the five employees in the unit had executed authorization cards. In view of the serious unfair labor practices found, the Board found that Respondent's refusal to bargain as demanded violated Section 8(a)(5) and (1) of the Act, and ordered Respondent to bargain with the Union Having carefully reconsidered this matter in light of Gissel Packing Company, supra, we are of the opinion that the Respondent's unfair labor practices, committed contemporaneously with the Union's organizational drive, are of such a substantial nature as would tend to preclude the holding of a fair and free election We have, therefore, concluded that the desires of Respondent's employees, as expressed by the valid authorization cards signed by a majority of the employees in the unit, can be better protected, and statutory policies effectuated, by affirming the Board's previous finding of Section 8(a)(5) violation and its order' that Respondent bargain, upon request, with the Union involved herein. Respondent argues that in light of the fact that 3 years have passed since the commission of the unfair labor practices and in view of the alleged fact that only one of the original five employees in the, unit is now in the employ of Respondent, any harmful effect caused by the unfair labor practices has been eliminated and, for this reason, a fair election can now be conducted. We find no merit in this contention. The Board's authority to issue a bargaining order, though a great length of time has passed since the commission of the unfair labor practices and the Union no longer represents a majority of the employees in the unit, has been upheld by the Supreme Court on several occasions. See N.L.R.B. v. Katz, 369 U.S. 736; Franks Bros. Co. v. N.L.R.B., 321 U.S. 702, and N.L.R.B..v. P. Lorillard Co , 314 U.S. 512. This authority was reaffirmed by that Court ' in Gissel Packing Company, supra, where it was observed that if the Board in these circumstances "could enter only a cease and desist order and direct an election. . . it would in effect be rewarding the employer and allowing him to profit from his own wrongful refusal to bargain." In light of Respondent's serious unfair labor practices tending to prevent a fair and free election we believe that effectuation of statutory policies requires the exercise of such authority in the instant case. Accordingly, we hereby affirm the Decision and Order heretofore issued in this case. 179 NLRB No. 107