Boyer Bros., Inc.

National Labor Relations Board - Board Decisions

Mar 2, 1970

181 N.L.R.B. 401 (N.L.R.B. 1970)

BOYER BROS ., INC. 401
Boyer Bros., Inc. and Bakery and Confectionery
Workers' International Union of America
Boyer Bros., Inc. and Bakery and Confectionery
Workers' International Union of America,
Petitioner . Cases 6-CA-3711 and 6-RC-4185
March 2, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On April 5, 1968, the National Labor Relations
Board issued a Decision and Order in the
above-entitled proceeding,' finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended, and ordering the
Respondent to cease and desist therefrom, to
bargain with the Union, and to take other
affirmative action designed to effectuate the policies
of the Act.
On June 16, 1969, the Supreme Court of the
United States issued its Opinion in N L R.B. v.
Gissel Packing Company, 395 U.S. 575, in which it
laid down certain guidelines relative to the propriety
of finding violations of Section 8(a)(5), and issuing
orders to bargain based upon such violations or
violations of other sections of the Act. Thereafter,
the United States Court of Appeals for the Third
Circuit remanded the instant proceeding to the
Board for reconsideration in view of the Supreme
Court's Opinion.
On August 27, 1969, the Board, by its Associate
Executive Secretary, issued a Notice informing the
parties that statements of position with respect to
the above-stated issue would be accented for
consideration by the Board on or before September
10, 1969. The General Counsel and the Respondent
filed Statements of Position, and the Respondent
filed a Supplement thereto.
Pursuant to the provisions of Section 3(b) of the
Act, the ' Board has delegated its powers in
connection with this proceeding to a three-member
panel.
The Board has considered the statements of
position, the supplement, and the entire record in
this proceeding, and, having reconsidered the
matter, has decided, for the reasons set forth below,
to affirm its original finding that the 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 herein.
The record shows that between the latter part of
May 1968, when the Union commenced its
1170 NLRB No 119
organizing campaign among the Respondent's
employees, and July 7, when the Respondent
received the Union's request for recognition and
bargaining, 106 of the Respondent's 207 employees
signed cards clearly authorizing the Union to
represent them in collective bargaining.'
The record also shows that the Respondent, upon
learning of the Union's organizing campaign,
undertook a vigorous and unlawful effort to
undermine employee support for the Union. This
effort continued unabated even after the election
herein was held.3 Thus, at various times material
hereto, the Respondent, among other things,
promulgated and enforced an unlawful rule against
union solicitation at any time on its premises;
interrogated employees with respect to their union
activities, sympathies, and the activities of other
employees; threatened to close its plant if its
employees selected the Union; threatened to
discharge employees if they continued to engage in
union activities; gave employees the impression that
it maintained surveillance of their union activities;
held out to one employee the prospect of promotion
after urging him to consider carefully the
consequences of voting for the Union; promised
employees improvements in holiday and vacation
benefits, and timed announcements of the promised
improvements in a manner calculated to influence
the outcome of the election; and assigned onerous
'The Respondent, in its statement of position and supplement thereto,
renews its claim that at no time did the Union possess valid authorization
cards signed by a majority of employees Among other things, the
Respondent asserts that the authorization cards signed by Elizabeth Park
and Gary Runk, as well as those bearing signatures solicited by Betty
Henry, a supervisor , should not be counted in ascertaining the Union's
majority status We disagree , for the reasons stated in our original
Decision , and for the reasons stated herein
In the case of Park , objective facts, as evidenced by events
contemporaneous with the signing, do not show that the alleged
misrepresentation made to Park , to the effect that "practically everyone"
had signed, was the decisive factor in causing her to sign Marie Phillips,
Inc , 178 NLRB No 53 Accordingly , we shall count her card
The credited testimony shows that Gary Runk signed an authorization
card and caused it to be delivered to the Union , and further, that the
Union received Runk ' s card prior to its bargaining request . In these
circumstances , we shall count Runk's card , notwithstanding that it was
subsequently lost and was not introduced into evidence at the hearing
Betty Henry solicited signatures on authorization cards and generally
manifested her support for the Union before any claim was made by the
Respondent that she had supervisory status Indeed , the Respondent and
the Union had stipulated for purposes of the election that Henry, and I I
others employed in the same category , were eligible to vote Thereafter, the
Trial Examiner held, and we agreed, that Henry and the I I others were
supervisors This precluded the use of their cards in ascertaining the
Union's majority status It is also true that, as a general rule, the Board
will not accept cards solicited by supervisors as evidence of majority status
However, in the circumstances of this case , we hold that the cards solicited
by Henry may be used for this purpose The fact that Henry was
represented by the Respondent not to be a supervisor , that she was , in fact,
discharged for demonstrating her support for the Union , and that the
Respondent itself undertook an intensive and unlawful campaign to defeat
the Union , rebuts any presumption that Henry's solicitation of cards might
have coerced employees into designating the Union against their wishes
See also Aero Corporation , 149 NLRB 1283, 1286-87, affd 363 F 2d 702
(C A D C)
In view of the foregoing , we reaffirm our finding that the Union
possessed valid authorization cards signed by a majority of the
Respondent 's employees when it requested recognition and bargaining
'The Union , though possessing valid authorization cards signed by a
181 NLRB No. 63
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work to one individual because of his activities on
behalf of the Union. In our original Decision, we
adopted the Trial Examiner's conclusion that the
Respondent's unlawful conduct, described above,
was "designed to thwart the Union and undermine
its majority status."
Having carefully reconsidered this matter in the
light of Gissel Packing Company, supra, we are of
the opinion that the Respondent's unfair labor
practices, which began soon after the Respondent
learned of the Union's organizing campaign and
continued even after the election herein was held,
were substantial and pervasive in nature and
necessarily had a damaging impact upon our
election processes so that the application of
traditional remedies for the unlawful conduct would
not, with sufficient certainty, have permitted a fair
rerun election.4 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, and the
policies of the Act will be best effectuated by
reaffirming our original Decision and Order, finding
that the Respondent violated Section 8(a)(5) of the
Act and requiring that it bargain, upon request, with
the Union here involved.
SUPPLEMENTAL ORDER
In view of the foregoing, and on the basis of the
entire record herein, the National Labor Relations
Board hereby reaffirms its Decision and Order of
April 5, 1968, entered in this proceeding.
majority of the employees , failed to receive a majority in the August 17,
1966, election , the results of which were set aside because of the
Respondent 's unlawful conduct
The Respondent ' s unlawful conduct is sufficiently pervasive to justify a
bargaining order even in the absence of a finding that such conduct
violated Section 8 (a)(5) of the Act