American Beauty Baking Co.

National Labor Relations Board - Board Decisions

May 27, 1970

182 N.L.R.B. 861 (N.L.R.B. 1970)

AMERICAN BEAUTY BAKING CO.
Beaver Bros. Baking Co ., Inc. d/b/a American Beauty
Baking Co . and American Bakery and Confectionery
Workers International Union , AFL-CIO and Blair Kel-
ly. Cases 6-CA-3455 and 6-CA-3518
May 27, 1970
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On May 23, 1968, the National Labor Relations Board
issued its Decision and Order in the above-entitled pro-
ceedings,' finding that the Respondent had engaged in
certain unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended, and ordering the Respondent
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act,
including an order directing Respondent to bargain with
the Union.
On June 16, 1969, the Supreme Court of the,United
States issued its decision in N.L.R.B. v. Gissel Packing
Company, 395 U.S. 575, affirming generally the Board's
use of authorization cards in determining a union's major-
ity status, and the Board's power to issue a bargaining
order based upon such showing where the employer's
unfair labor practices had a tendency to undermine
the Union's majority and impede the election process.
Thereafter, the United States Court of Appeals for
the District of Columbia remanded the instant proceeding
to the Board for reconsideration in the light of the
Supreme Court's opinion in Gissel. On October 28,
1969, the Board issued a notice permitting the parties
to file statements of position with respect to the applica-
tion of Gissel to this proceeding. Subsequently, the
Respondent and the General Counsel filed timely state-
ments in support of their respective positions.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its power in connec-
tion with this case to a three-member panel.
We have again reviewed the entire record, including
the statements of position, and, having reconsidered
the matter, affirm our original finding and order in this
respect for the reasons stated below.
In our initial Decision we found, in agreement with
the Trial Examiner, that the Respondent violated Section
8(a)(1) of the Act. These unlawful acts are fully detailed
in the Trial Examiner's original Decision and summarized
in our original Decision. Contrary to the Trial Examiner,
however, we found and concluded that Respondent's
8(a)(1) violations were not minimal, but were, in fact,
11
' 171 NLRB No 98
2 The Respondent has also filed a motion to remand to the Trial
Examiner for the purpose of reopening the record to adduce additional
861
substantial enough to support an inference of bad faith
on the part of the Respondent in its refusal to recognize
the Union as representative of an uncoerced majority
of its employees-in an appropriate unit, and that Respond-
ent's unlawful conduct had for its purpose the impeding
and coercing of its employees in the exercise of their
statutory rights. The Board also found that Respondent
discriminatorily discharged three employees in violation
of Section 8(a)(3) and (1) of the Act, and, further that
the strike that began on September 21, 1965, in protest
of Respondent's conduct was at its inception an unfair
labor practice strike.
With respect to the 8(a)(5) allegation of the complaint,
the Board found that at all times material the Union
represented an uncoerced, majority in an appropriate
unit of Respondent's employees and was entitled to
recognition as their exclusive' collective-bargaining repre-
sentative; and that, in the absence of any convincing
evidence that Respondent had any reasonable basis upon
which it could validly assert a good-faith doubt of the
Union's majority, Respondent's refusal to recognize the
Union was in violation of Section 8(a)(5) of the Act.
The Board issued a bargaining order.
We are convinced after a careful reexamination of
the facts herein in the light of the standards set forth
in the Supreme Court's opinion in Gissel that a bargaining
order is warranted. The Respondent's campaign to defeat
the Union's organizational efforts consisted not only
of serious acts of interference, restraint, and coercion
against its employees in violation of Section 8(a)(1),
but included the discriminatory discharge of three
employees in violation of Section 8(a)(3). These unfair
labor practices tended to destroy the Union's majority
status achieved by authorization cards and to prevent
a free election. In our view, it is unlikely that the
effect of these unfair labor practices could be neutralized
by conventional cease-and-desist remedies which would
ensure a fair election. We therefore find that the employ-
ees' desires as expressed through the authorization cards
are a more reliable measure of their stand on the issue
of representation, and that the policies of the Act will
be better effectuated by the issuance of a bargaining
order. Therefore, the bargaining order previously issued
to remedy the Respondent's unfair labor practices is
appropriate to remedy its violations of Section 8(a)(5)
and (1), and we shall affirm it.
SUPPLEMENTAL ORDER
In view of the foregoing, and on the basis of the
record as a whole, the National Labor Relations Board
affirms its Order issued in this proceeding on May 23,
1969.
evidence, make new findings, and reconsider his prior findings The
General Counsel has filed a statement in opposition thereto We conclude
that the issues on the record before us have been fully litigated and
further that there is no basis for remanding the case to the Trial
Examiner for reconsideration of his prior finding or for the making
of new findings Accordingly, Respondent's motion is denied
182 NLRB No. 122