Ayer Lar Sanitarium

National Labor Relations Board - Board Decisions

Nov 13, 1969

179 N.L.R.B. 580 (N.L.R.B. 1969)

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ayer Lar Sanitarium and Hospital and Professional
Employees Division , Local 399, Service Employees
International Union , AFL-CIO. Case 21-CA-7922
November 13, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On April 30, 1969, the National Labor Relations
Board issued a Decision and Order in the
above-entitled proceeding (175 NLRB No. 119),
wherein it ordered, among other things, that the
Respondent recognize and bargain with the Union
notwithstanding the fact that the Union had not
received a majority of the votes cast in a valid
election. Subsequently, the Supreme Court of the
United States in N L.R B v. Gissel Packing
Company, 395 U.S 575, June 16, 1969, upheld a
Board bargaining order given under similar
circumstances. However, in affirming the Board's
action the Court delineated the criteria under which
a bargaining order would be appropriate.
Accordingly, in view of the Supreme Court's
decision, the Board, sua sponte, has reconsidered the
subject case, as well as a number of other similar
cases, in light of the criteria set forth by the
Supreme Court in Gissel, supra, hence the instant
supplemental decision. In accordance with Board
notice and invitation, statements of position with
respect to the impact of the Supreme Court's
decision in Gissel Packing Company, supra, on the
Board's outstanding Decision and Order in the
subject case were filed by the Respondent and
General Counsel.
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 statements of
position and the entire record in this proceeding
and, as set forth below, shall reaffirm its original
finding that Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to recognize the Union as
majority representative of the employees, and
further finds that a bargaining order is necessary to
effectuate the policies of the Act in this case.
As found in our original Decision and Order
Respondent's unlawful conduct, which included
threats to the employees, interrogation, solicitation,
and preparation of withdrawal letters, and a
discriminatory discharge, all of which occurred
subsequent to the demand for recognition and the
filing of the election petition, has undermined the
Union's majority strength We are further of the
opinion that these unfair labor practices made an
election a less reliable indication of the employees'
free choice than the cards by which they designated
the Union to represent them. Therefore, a
bargaining order is warranted. In adopting this
remedy, however, we find it unnecessary to rely on
the Trial Examiner's finding that Respondent lacked
a good-faith doubt as to the Union's majority
status. In Gissel Packing Company, supra, the
Supreme Court held that a bargaining order is
appropriate where an employer rejects a card
majority while at the same time committing unfair
labor practices that tend to undermine the Union's
majority and make a fair election an unlikely
possibility. Accordingly, we shall reaffirm the unfair
labor practice findings and the remedy provided
therefor in the original Decision and Order herein.
ORDER
In view of the foregoing, and on the basis of the
record as a whole, the National Labor Relations
Board reaffirms its Order of April 30, 1969, in this
proceeding.
179 NLRB No. 94