Hancock Fabric Outlet, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1969

179 N.L.R.B. 639 (N.L.R.B. 1969)

HANCOCK FABRIC OUTLET, INC. 639
Hancock Fabric Outlet , Inc. and Retail , Wholesale
& Department Store Union , AFL-CIO. Cases
15-CA-3293, 15-CA-3356, and 15-RC-3894
November 19, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On April 7, 1969, the National Labor Relations
Board issued its Decision in the above-entitled
proceeding,' finding that Respondent had engaged in
certain conduct in violation of Section 8(a)(l), (3),
and (5) of the National Labor Relations Act, as
amended, and ordering Respondent to take certain
affirmative action. Thereafter, on August 6, 1969,
the Board, by its Associate Executive Secretary,
issued a Notice informing the parties that the Board
had decided to reconsider its Section 8(a)(5) finding
and bargaining order in light of N.L.R.B. v. Gissel
Packing Company, 395 U.S. 575. The Notice
permitted the parties to file statements of position
on these issues on or before August 20, 1969. The
General Counsel has filed a Statement of Position.
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 statement of
position, and the entire record in this case, and, for
the reasons set forth below, has decided to reaffirm
its original finding that 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 in the case.
The facts show that between April 20 and April
25, 1968, 9 of Respondent's 14 employees signed
cards clearly authorizing the Union to represent
them in collective bargaining. The facts also show
that, immediately upon receipt of the Union's April
26 request for recognition and bargaining,
Respondent launched into a vigorous, unlawful
effort to undermine employee support for the
Union. Thus, Respondent coercively interrogated its
employees concerning the Union activity beginning
on April 26 and continuing until about May 3; it
discharged two employees believed to be leaders in
the Union activity on April 26 and 27; it promised
added benefits for employees on April 27; and it
announced and implemented new double-time pay
standards for July 4 and other holidays in order to
induce employee rejection of the Union in the July
18 election.' In our original Decision, we adopted
the Trial Examiner's conclusion that these violations
1175 NLRB No 42
of Section 8(a)(1) and (3) of the Act indicate that.
... the Respondent here has used the time prior
to the election for the illegal purpose of
dissipating and eliminating the Union's majority
through the use of coercion and, in addition,
made the holding of a fair election where
employees could freely express their own
unfettered preference for or against union
representation an impossibility.
The Supreme Court in Gissel agreed that the
Board has authority to issue a bargaining order to
redress unfair labor practices "so coercive, that even
in the absence of a Section 8(a)(5) violation, a
bargaining order would have been necessary to
repair the unlawful effect of those [unfair labor
practices]."3 In addition, the Court approved the
Board's authority to issue a bargaining order " . .
in less extraordinary cases marked by less pervasive
practices which nonetheless still have the tendency
to undermine majority strength and impede the
election processes."4 In the latter situation, the
Board is to examine the nature and extent of the
employer's unlawful conduct and ascertain the
likelihood that the use of traditional remedies would
ensure a fair election. The Court instructed the
Board to decide whether, ". . . even though
traditional remedies might be able to ensure a fair
election, there was insufficient indication that an
election (or a rerun . . . ) would definitely be a more
reliable test of the employees' desires than the card
count taken before the unfair labor practices
occurred."'
In the present case, the record shows, and we
have found, that a majority of Respondent's
employees had designated the Union as their
bargaining representative by means of unambiguous
authorization cards. Respondent's subsequent
unlawful response to the Union activity substantially
undermined this majority support for the Union.
The attack on the Union began within an hour of
the receipt of the Union's request for recognition
(April 26, 1968) and continued up to the day before
the election (July 17, 1968). As noted above, the
unlawful conduct included coercive interrogation,
the promise of benefits, the implementation of a new
holiday pay benefit, and the discharge of two
employees thought to be union leaders. We find that
Respondent, by refusing to recognize the Union as
majority representative of its employees while
engaging in the foregoing conduct violated Section
8(a)(5) and (1) of the Act, and that a bargaining
order is justified as a remedy therefor.6 We find that
the Respondent's extensive unfair labor practices
'This holiday pay action was sufficiently coercive to justify setting aside
the July 18 election results
'N L R B v Geese! Packing Company, 395 U S 575, 615
'Id at 614
'/d at 616
'Respondent's unlawful conduct is sufficiently pervasive to justify a
bargaining order even without an 8(a)(5) finding
179 NLRBNo. 108
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had a damaging impact on our election processes'
and that the application of traditional remedies for
the unlawful conduct would not, with sufficient
certainty, produce a fair rerun election 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,
'The Union , though possessing valid authorization cards from a majority
of the employees , failed to receive a majority in the July 18 , 1968, election,
the results of which were set aside because of Respondent ' s unlawful
conduct
and the. policies of the Act will best be effectuated
by our action herein. Accordingly, we shall reaffirm
the findings and remedy provided in the original
Decision and Order in this proceeding.
SUPPLEMENTAL ORDER
In view of the foregoing, and on the basis of the
entire record in this case, the National Labor
Relations Board reaffirms its Order of April 7,
1969, entered in this proceeding.