Heck's Inc.

National Labor Relations Board - Board Decisions

Jan 2, 1970

180 N.L.R.B. 530 (N.L.R.B. 1970)

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heck's Inc. and Chauffeurs , Teamsters and Helpers
Local Union No. 175, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America . Cases 9-CA-3356 and
9-CA-3477
January 2, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On June 30, 1967, the National Labor Relations
Board issued its Decision and Order in the
above-entitled proceeding , finding that the
Respondent had engaged in and was engaging in
unfair labor practices in violation of Section 8(a)(l),
(3), and (5) of the National Labor Relations Act, as
amended, and ordered that the Respondent cease
and desist therefrom and take certain affirmative
action to remedy the unfair labor practices.'
Thereafter, on June 28, 1968, the United States
Court of Appeals for the Fourth Circuit affirmed
the Board 's findings that the Respondent engaged in
conduct violative of Section 8(a)(1) and (3) of the
Act, but reversed the Board's findings that the
Respondent refused to bargain with the Union in
violation of Section 8(a)(5) of the Act.' The court
rejected the Board's holding that the Respondent did
not have a good-faith doubt as to the Union's
majority status, which was established by signed
authorization cards, when the Respondent was
confronted with a demand for recognition by the
Union. The court indicated that it considered
authorization cards unreliable indicators of the
desires of the employees and that an employer is
justified in entertaining a good-faith doubt of a
union's claims when confronted with a demand for
recognition based solely upon authorization cards.
The court denied enforcement of that portion of the
Board's order requiring the Respondent to bargain
with the Union.
On June 16, 1969, the Supreme Court of the
United States issued its opinion in this proceeding.'
Although it made clear that refusal-to-bargain
violations may no longer be predicated upon an
employer's subjective motivation when confronted
by a Union's demand for recognition, i.e., his good
or bad faith concerning the Union's majority status,
the Court affirmed generally the Board's use of
authorization cards as a basis for establishing a
union's majority status and the Board 's power to
issue a bargaining order based upon such showing.
The Supreme Court, in setting forth general
principles applicable to the issuance of bargaining
orders, held that the Board has authority to issue
'166 NLRB No. 38.
'N.L R B v. Heck 's Inc . 398 F 2d 337, cert. granted 393 U S 997
'N.L R B v GLcsel Packing Company . 395 U S 575
180 NLRB No. 82
such orders to remedy 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]." In addition, the Court held
that, in cases where the unlawful conduct is less
flagrant in nature, the Board may find an 8(a)(5)
violation and issue a bargaining order if "the
possibility of erasing the effects of [the] past
practices and ensuring a fair election . . . by use of
traditional remedies . . . is slight and ... [therefore]
employee sentiment once expressed through cards
would, on balance , be better protected by a
bargaining order . ." In the instant case, the
Board did not make a finding that a bargaining
order would have been necessary even in the absence
of an unlawful refusal to bargain; nor did it make a
finding that, even though traditional remedies might
be able to ensure a fair election, there was
insufficient indication that an election would
definitely be a more reliable test of the employees'
desires than the authorization cards. The Court
noted that the requisite findings to support a
violation of Section 8(a)(5) and the issuance of a
remedial bargaining order in the instant case were
possibly implicit in the Board's decision, but
remanded the case to the Board for a specific
determination as to whether the Respondent's
unlawful conduct was of such a character as to
constitute a violation of Section 8(a)(5) of the Act
and to warrant a bargaining order as an appropriate
remedy.
Thereafter, the Board issued a notice granting all
parties the opportunity to file statements of position
with respect to the matters raised by the Court's
remand. Such statements were filed by the
Respondent,' the General Counsel, and the Union.
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 in
the light of the Court's opinion and, for the reasons
set forth below, affirms its original findings that the
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to recognize and bargain with the
Union as the majority representative of the
employees, and that a bargaining order is necessary
to effectuate the purposes of the Act in this case.
In its decision of June 30, 1967, the Board found
that the Respondent engaged in the following
unlawful conduct in violation of Section 8(a)(1) of
The Respondent, prior to the issuance of the Board's Notice granting
all parties an opportunity to file statements of position filed a Motion for
Oral Argument ; the General Counsel filed a memorandum in opposition
thereto . In response to the Board 's Notice the Respondent renewed its
Motion for Oral Argument. Respondent 's request for oral argument is
hereby denied , as in our opinion, this case can be fully considered on the
basis of the record herein , which adequately presents the facts necessary to
make the findings required by the Supreme Court's remand
HECK'S INC.
the Act: coercively interrogated its employees about
their union activities; threatened employees with
reprisals if the Union's campaign were successful;
and offered or granted employees wage increases
and/or promotions for opposing the Union. The
Board also found that the Respondent
discriminatorily discharged the leading employee
organizer in violation of Section 8(a)(3) and (I) of
the Act. With respect to the 8(a)(5) allegation of the
complaint, it was found (1) that the Union had
established and maintained its majority status in an
appropriate unit and (2) that the Respondent was
engaged in a course of conduct calculated to
undermine the Union and reflecting a rejection of
the principles of collective bargaining , and that its
refusal to bargain with the Union as a majority
representative was not grounded upon any element
of good faith but constituted a refusal to bargain in
violation of Section 8(a)(5) of the Act. The Board
issued a bargaining order.
We are convinced after a reexamination of the
facts herein in the light of the Court's opinion, that
a bargaining order is warranted . The Respondent's
relentless campaign to defeat the Union's
organizational efforts consisted not only of serious
and extensive acts of interference , restraint, and
coercion against its employees in violation of
Section 8(a)(1), but included the discriminatory
531
discharge of the leading Union adherent in violation
of Section 8(a)(3). These unfair labor practices
tended to destroy the Union's majority status
achieved by authorization cards and were so flagrant
and coercive in nature as to require, even in the
absence of an 8(a)(5) violation, a bargaining order
to remedy their effect. We also find that the
Respondent's unlawful conduct and its refusal to
recognize and bargain with the Union violated
Section 8(a)(5) and (1) of the Act. In our view, it is
unlikely that the effect of these unfair labor
practices could be neutralized by conventional
remedies which would ensure a fair election. We
therefore find that the employees' 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. Accordingly, we affirm the findings, as
modified herein, and shall affirm the remedy
provided in the original Decision and Order.
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 on June 30, 1967, in
this proceeding.