Flav-O-Rich, Inc.

FLAV-O-RICH, INC 687 Flav-O-Rich, Inc and Chauffeurs, Teamsters and Helpers Local Union No. 175, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America Case 9-CA-8146 June 11, 1976 SUPPLEMENTAL DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On August 19, 1974, the National Labor Relations Board issued a Decision and Order in the above-enti- tled proceeding,' finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Sections 8(a)(5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended, and ordering Respondent to cease and de- sist therefrom and take certain affirmative actions to remedy such unfair labor practices Thereafter, on October 3, 1974, Respondent filed with the Board a "Motion to Abate Proceedings and Reopen Record " In its motion, Respondent alleged that it "now has a good faith doubt" of the Union's majority status based on a poll of the employees in the bargaining unit conducted by Respondent on September 16, 1974 Respondent further alleged that this poll conformed to the requirements set forth by the Board in Struksnes Construction Co, Inc, 165 NLRB 1062 (1967), and that the results of the poll indicated that a majority of the employees did not support the Union Respondent also stated that it was petitioning for an election to test the Union's majority The motion requested the Board to abate proceedings pending the outcome of such election or to reopen the record to allow Respondent to intro- duce the poll and other evidence of the Union's al- leged lack of majority support On October 31, 1974, the Board issued an order denying Respondent's "Motion to Abate Proceedings and Reopen Record " Respondent thereupon petitioned the United States Court of Appeals for the Sixth Circuit to re- view the orders of the Board The Board filed a cross- application for enforcement of its bargaining order On March 1, 1976, the court granted Respondent's petition for review, denied the Board's cross-petition for enforcement, and remanded the case for recon- sideration of Respondent's "Motion to Abate Pro- '212 NLRB 930 ceedings and Reopen Record " 2 In remanding, the court held that the Board committed two procedural errors in connection with Respondent's "Motion to Abate Proceedings and Reopen Record" (1) the Board failed to disclose the reasoning behind its de- nial of Respondent's motion, and (2) there was no indication that the Board Members themselves per- sonally considered and decided the issues raised by the motion 3 Thereafter, on April 16, 1976, the Board advised the parties that it had decided to accept the remand and that they might submit statements of position with respect to the issues raised by the remand On May 3, 1976, the General Counsel filed a "Statement of Position Regarding Disposition of Case on Re- mand " 4 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel In its original decision, which issued on August 19, 1974, the Board found that Respondent was the suc- cessor employer to the Leatherwood Company and was therefore under a duty to bargain with the in- cumbent Union as the collective-bargaining repre- sentative of an appropriate unit of its employees 5 Accordingly, the Board found that Respondent vio- lated Section 8(a)(5) and (1) by refusing to bargain with the Union after taking over the Leatherwood operations on November 1, 1973, and by refusing to bargain with the Union on and after November 19, 1973, concerning the effects of closing the Bluefield, West Virginia, processing plant It is well established that a successor employer is bound by a presumption of continued majority sup- port "unless it demonstrates that the union no longer represents a majority of employees on the date of the refusal to bargain, or that the refusal to bargain was grounded on a good faith doubt of the Union's ma- jority status " 6 In the original Board proceeding in 2 Flav-O Rich, Inc v NLRB 531 F 2d 358 (C A 6 1976) 3In its brief to the court, the Board conceded that its records did not affirmatively disclose whether all three Board Members who had originally decided this case had themselves considered Respondents motion At the time the Board's Order issued denying Respondent's motion, the Board Members chief counsels were authorized to concur on their behalf in the denial of the reopening of any record in a decided case where the grounds asserted for reopening were wholly without merit The Board subsequently revised its procedures so as to assure the personal participation of the Board Members in all such motions 4 Also on May 3 1976 the Board received a letter from Respondent which stated that its position has been fully set forth in prior submissions to the Board and the court of appeals and that Respondent was declining at this time to make a further submission 5 In its decision the court of appeals affirmed the Board's successorship finding 531 F 2d at 360 6 N L R B v Wayne Convalescent Center Inc 465 F 2d 1039, 1043 (C A 6, 1972) 224 NLRB No 88 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this case, Respondent asserted that it had reasonable grounds for doubting the Union's majority status as of the refusal-to-bargain date, but this contention was rejected by the Board I In its "Motion to Abate Proceedings and Reopen Record," Respondent did not advance any new evidence relating to its earlier claim that it had a reasonable doubt as to the Union's majority status on the date it refused to bar- gain Rather, Respondent contended that it was not required to bargain with the Union because it "now has a good faith doubt" of the Union's majority sup- port based on a poll it conducted on September 16, 1974, approximately 11 months after its refusal to bargain and I month after the Board's decision Assuming arguendo the truth of the allegations in Respondent's motion, we conclude that under well- established legal principles the claim of loss of major- ity arising after the Board's decision is not a defense to the Board's 8(a)(5) findings and bargaining order In the instant case, the alleged loss of majority oc- curred almost a year after Respondent unlawfully re- fused to bargain with the Union The Supreme Court has long recognized that such an unfair labor prac- tice "disrupts the employees' morale, deters their or- ganizational activities, and discourages their mem- bership in unions " 8 Under these circumstances, to allow an employer to rely on a union's subsequent failure to retain majority status would result in per- mitting the employer "to profit from [its] own wrong- ful refusal to bargain " 9 Similarly, were we to accede to Respondent's alternative request and order an election when it is claimed that a union has lost its majority support subsequent to or during proceedings occasioned by an employer's wrongful refusal to bargain, recalcitrant employ- ers might be able by continued opposition to union membership indefinitely to postpone per- formance of their statutory obligation In the Board's view, procedural delays necessary fairly to determine charges of unfair labor practices might in this way be made the occasion for fur- ther procedural delays in connection with re- peated requests for elections, thus providing em- ployers a chance to profit from a stubborn refusal to abide by the law 10 212 NLRB 930, 933, fn 4 s Franks Bros Co v NLRB , 321 U S 702, 704 (1944) 9 Id 'old at 705 For these reasons, the Court held in Franks Bros that the Board may require that "an employer bargain exclusively with the particular union which repre- sented a majority of the employees at the time of the wrongful refusal to bargain despite that union's sub- sequent failure to retain its majority " 11 The Supreme Court's decision in N L R B v Mex- ia Textile Mills, Inc ,12 is particularly relevant to the issues presented here, for in that case, as in the in- stant case, the employer alleged that after the record was closed "it had come to the conclusion that the Union no longer represented a majority of employees in the bargaining unit " In regard to this contention, the Court held as follows "That the respondent doubts the Union's ability to muster a majority of the employees in the bargaining unit does not justify the denial of an enforcement decree " 13 Similarly, in NLRB v S H Kress & Co ,14 the employer contended that it was no longer required to bargain because the union had lost its majority after the issuance of the Board's order The court rejected this argument, stating 15 Assuming without determining that the Union had lost its majority after that time, this conten- tion is unsound The bargaining relationship continued for a reasonable period in which it could be given a fair chance Franks Bros Co v N L R B, 321 U S 702 Our view is that because of procedural delays caused by respon- dent as above indicated the bargaining relation- ship never had a fair chance In sum, we find that by its continued refusal to bargain with the Union on and after November 1, 1973, Respondent has failed to give bargaining "a fair chance to succeed" 16 and therefore cannot now rely upon the Union's alleged loss of majority as a defense to the Board's 8(a)(5) findings and bargain- ing order In view of the foregoing, we hereby deny Respondent's "Motion to Abate Proceedings and Reopen Record" on the ground that the facts alleged therein are wholly immaterial to the Board's initial 11 Id 12 339 U S 563, 566 (1950) 13 Id at 568 See also N L R B v Katz 369 U S 736 748 In 16 (1962) Ray Brooks v N L R B, 348 U S 96, 102-103 (1954) 4 194 F 2d 444, 446 (C A 6, 1952) 15 Id 16 Franks Bros, supra, 321 U S at 705 FLAV-O-RICH, INC 689 Decision and Order Accordingly, we reaffirm our original Decision and Order in this proceeding 11 ORDER "On March 11, 1976, Respondent filed a motion with the Board for an order reinstating its RM petition of October 2, 1974, which had been dis- missed by the Regional Director for Region 9 Alternatively, Respondent requested that an election be conducted pursuant to a new RM petition filed by it on March 8, 1976 In view of our finding herein that Respondent is obligated to bargain with the Union despite the alleged loss of majority support, Respondent's motion is hereby denied on the ground that "it is the Board s established policy to dismiss pending representation petitions upon the issuance of a bargaining order Underlying this policy is the principle that a petition, which presupposes the presence of a question concerning representation, and a bargaining order, which necessarily rests on the ab- Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby affirms as its Order the Order heretofore entered in this proceeding on August 19, 1974 Bence of a question concerning representation , are inherently inconsistent and, therefore, may not concurrently exist" Riviera Manor Nursing Home Inc, 220 NLRB 124 (1975)