Hancock Fabric Outlet, Inc.

HANCOCK FABRIC OUTLET, INC. 639 Hancock Fabric Outlet , Inc. and Retail, Wholesale & Department Store Union, AFL-CIO. Cases 15-CA-3293, 15-CA-3356, and 15-RC-3894 November 19, 1969 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On April 7, 1969, the National Labor Relations Board issued its Decision in the above-entitled proceeding,' finding that Respondent had engaged in certain conduct in violation of Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended, and ordering Respondent to take certain affirmative action. Thereafter, on August 6, 1969, the Board, by its Associate Executive Secretary, issued a Notice informing the parties that the Board had decided to reconsider its Section 8(a)(5) finding and bargaining order in light of N.L.R.B. v. Gissel Packing Company, 395 U.S. 575. The Notice permitted the parties to file statements of position on these issues on or before August 20, 1969. The General Counsel has filed a Statement of Position. 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 statement of position, and the entire record in this case, and, for the reasons set forth below, has decided to reaffirm its original finding that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize the Union as the bargaining representative of its employees and that a bargaining order is an appropriate remedy in the case. The facts show that between April 20 and April 25, 1968, 9 of Respondent's 14 employees signed cards clearly authorizing the Union to represent them in collective bargaining. The facts also show that, immediately upon receipt of the Union's April 26 request for recognition and bargaining, Respondent launched into a vigorous, unlawful effort to undermine employee support for the Union. Thus, Respondent coercively interrogated its employees concerning the Union activity beginning on April 26 and continuing until about May 3; it discharged two employees believed to be leaders in the Union activity on April 26 and 27; it promised added benefits for employees on April 27; and it announced and implemented new double-time pay standards for July 4 and other holidays in order to induce employee rejection of the Union in the July 18 election.' In our original Decision, we adopted the Trial Examiner's conclusion that these violations 1175 NLRB No 42 of Section 8(a)(1) and (3) of the Act indicate that. ... the Respondent here has used the time prior to the election for the illegal purpose of dissipating and eliminating the Union's majority through the use of coercion and, in addition, made the holding of a fair election where employees could freely express their own unfettered preference for or against union representation an impossibility. The Supreme Court in Gissel 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]."3 In addition, 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."4 In the latter situation, the Board is to examine the nature and extent of the employer's unlawful conduct and ascertain the likelihood that the use of traditional remedies would ensure a fair election. The Court instructed the Board to decide 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 employees' desires than the card count taken before the unfair labor practices occurred."' In the present case, the record shows, and we have found, that a majority of Respondent's employees had designated the Union as their bargaining representative by means of unambiguous authorization cards. Respondent's subsequent unlawful response to the Union activity substantially undermined this majority support for the Union. The attack on the Union began within an hour of the receipt of the Union's request for recognition (April 26, 1968) and continued up to the day before the election (July 17, 1968). As noted above, the unlawful conduct included coercive interrogation, the promise of benefits, the implementation of a new holiday pay benefit, and the discharge of two employees thought to be union leaders. We find that Respondent, by refusing to recognize the Union as majority representative of its employees while engaging in the foregoing conduct violated Section 8(a)(5) and (1) of the Act, and that a bargaining order is justified as a remedy therefor.6 We find that the Respondent's extensive unfair labor practices 'This holiday pay action was sufficiently coercive to justify setting aside the July 18 election results 'N L R B v Geese! Packing Company, 395 U S 575, 615 'Id at 614 '/d at 616 'Respondent's unlawful conduct is sufficiently pervasive to justify a bargaining order even without an 8(a)(5) finding 179 NLRBNo. 108 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had a damaging impact on our election processes' and that the application of traditional remedies for the unlawful conduct would not, with sufficient certainty, produce a fair rerun election In our opinion, the unambiguous cards validly executed by a majority of the employees in the unit represent a more reliable measure of employee desires on the issue of representation than would a rerun election, 'The Union , though possessing valid authorization cards from a majority of the employees, failed to receive a majority in the July 18 , 1968, election, the results of which were set aside because of Respondent 's unlawful conduct and the. policies of the Act will best be effectuated by our action herein. Accordingly, we shall reaffirm the findings and remedy provided in the original Decision and Order in this proceeding. SUPPLEMENTAL ORDER In view of the foregoing, and on the basis of the entire record in this case, the National Labor Relations Board reaffirms its Order of April 7, 1969, entered in this proceeding.