Big Ben Shoe Store

National Labor Relations Board - Board Decisions

Nov 25, 1969

179 N.L.R.B. 730 (N.L.R.B. 1969)

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Kostel Corporation , d/b/a Big Ben Shoe Store
and Retail Clerks International Association,
AFL-CIO, Local 1504 . Case 38-CA-375
November 25,-1969
SUPPLEMENTAL DECISION AND
'ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On August 14, 1968, the National Labor
Relations Board issued its Decision and Order (172
NLRB No. 167) in the above-entitled proceeding,
adopting, with modifications, the findings,
conclusions , and recommendations of , the Trial
Examiner. By that Decision, the Board found that
Respondent violated Section 8(a)(1) of the National
Labor Relations Act, as amended, by threatening an
employee in connection with another employee's
union activity, and by coercively interrogating an
employee concerning his own and other employees'
union activity. The Board further found that
Respondent violated Section 8(a)(3) and (1) of the
Act by the discharge of one employee and by the
constructive discharge of another employee because
of their union activity. Finally, the Board found that
Respondent violated Section 8(a)(1) and (5) of the
Act by refusing on and after August 3, 1967, to
recognize and bargain with the Union.
Acting on its own motion, the Board in view of
the Supreme Court's decision in N.L.R.B. v. Gissel
Packing Company, 395 U.S. 575, in which the
Court laid down certain guidelines relative to the
propriety of finding violations of Section 8(a)(5) and
issuing orders to bargain as a remedy for such
violations or for violations of other sections of the
Act, decided to re-examine the Decision and Order
herein. Accordingly, the Board, on August 1, 1969,
by Notice informed all the parties that it was
reconsidering the case and that the parties could
submit Statements of Positions with respect to the
issues set forth above. Thereafter, the General
Counsel submitted a Statement of Position and the
Respondent submitted a Motion for
Reconsideration.
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, having reexamined the Decision and
Order herein, as well as the entire record including
Respondent's Motion for Reconsideration,' for the
reasons and to the extent stated below, hereby
modifies that portion of the Decision and Order
concerning the violations of Section 8(a)(5) and (1),
which relates to the composition of the unit, the
Union's majority status, and the date of the refusal
to bargain. In all other respects, we adhere to the
original Decision and Order.2
As found in the original Decision, when
Respondent received the Union's demand for
recognition and bargaining on August 3, Respondent
advised the Union that Mr. Kostel was out of town
but would contact the Union on or about August 24.
Thereafter, Respondent made no effort to
communicate with the Union.
In holding that Respondent unlawfully refused to
bargain since August 3, Members Brown and
Jenkins found that on that date the Union had
signed authorization cards from two of the three
eligible employees in the unit. That finding was
based on the exclusion, under existing Board policy,
from the unit of employee Carter, a 77-year-old
social security annuitant, who worked part-time.
Recently, a majority of the full Board decided that,
contrary to prior decisions, employees who are
otherwise within the unit will not be excluded
therefrom solely for the reason that they limit their
working time and earnings so as not to decrease
their social security annuity.' Accordingly, Carter is
included in the unit. With his inclusion, it is
apparent that on August 3, the unit was comprised
of four employees,4 and as only two of them had
signed cards by then the Union had no majority
status on that date. A third employee in the unit,
however, signed a card on August 23.
In view of the foregoing, and as we have
heretofore found that the Union's demand was a
continuing demand and that the Union did achieve
majority status on August 23, we find that
Respondent's failure to communicate with the
Union on and after August 23, when viewed in the
light of the coercive statements to employees and
the constructive discharge of an employee for
engaging in union activity, was violative of Section
8(a)(5) and (1), and that the issuance of a bargaining
order will effectuate the purposes of the Act. We are
satisfied that the above-described 8(a)(1) and (3)
violations tended to undermine the Union's majority
and that there is insufficient indication that an
election would be a more reliable test of the
employees' desires than a card count.'
' We grant Respondent ' s Motion for Reconsideration to the extent
indicated herein In all other respects it is denied
'We shall also amend the Conclusions of Law, Order, and Appendix to
include a remedy for the 8 (a)(I) threat, which was inadvertently omitted
therefrom
'Holiday Inns of America , Inc, d/b/a Holiday Inn of Oak Ridge,
Tennessee , 176 NLRB No 124 Although Members Brown and Jenkins
dissented from such reversal of prior policy, they accept the majority view
for purposes of this case Member Zagoria would have included Carter in
the original Decision herein because he was over 72 years of age and thus
had no earnings limitation
'We adhere to our original exclusion of employee Senesac from the unit
because she was a temporary part-time employee We note , however, that
even if she were included, the result would be the same , as the Union had
authorizations from three of the possible five employees in the unit.
'N L R B v Gisse! Packing Company. supra at p l; All-Tronics Inc,
179 NLRB No 19
179 NLRB No. 121
BIG BEN SHOE ,STORE 731
Conclusions of Law
The conclusions of law in the original Decision
and Order herein are modified as follows:
1. Insert the following as paragraph 4 of the
conclusions of law and renumber the remaining
paragraphs accordingly.
"4. By threatening an employee in connection
with another employee's union activity, Respondent
violated Section 8(a)(1) of the Act."
2. In paragraphs 8 and 9, as -so renumbered,
change the dates in each of them from August 3,
1967, to August 23, 1967.
.ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
The Kostel Corporation, d/b/a Big Ben Shoe Store,
Kankakee, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the
original Decision and Order herein, as modified
below:
1. Insert the following as paragraph 1(b) and
renumber the remaining subparagraphs of paragraph
1, accordingly:
1(b) Threatening any employee in connection with
another employee's union activity.
2. Add the following after the eighth substantive
paragraph of the Appendix "Notice to All
Employees":
WE WILL NOT threaten any employee in
connection with another employee's union
activity.