Henry Colder Co.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 118 (N.L.R.B. 1970)

118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henry Colder Company and Retail Store Employees
Local No. 44 , affiliated with Retail Clerks Inter-
national Association , AFL-CIO. Cases
30-CA-124 and 30-CA-167
June 30, 1970
SECOND SUPPLEMENTAL DECISION AND
ORDER DENYING MOTIOt'
By MEMBERS FANNING , MCCULLOCH, BROWN, AND
JENKINS
The National Labor Relations Board, on Februa-
ry 27, 1970, following consideration of the parties'
statements of position with respect to the effect of
N.L.R.B. v. Gissel Packing Company, 395 U.S. 595,
on the Board's original Decision and Order,' issued
a Supplemental Decision herein.' In its Supplemen-
tal Decision, the Board affirmed its finding that the
Respondent violated Section 8(a)(5) of the Act by
refusing, on and after October 19, 1964. to recog-
nize and bargain with the Union which represented
a majority of the employees in the appropriate unit,
and its Order that the Respondent bargain with the
Union.
On March 26, 1970, the Respondent filed a mo-
tion to reopen the record, to which was attached an
affidavit from its general manager asserting that of
the 33 employees employed in the bargaining unit
as of March 20, 1970, only 4 had been employed at
the time of the damand for recognition by the
Union in October 1964. In its motion, the Respon-
dent moves the Board to reopen the record to ad-
duce evidence of such turnover in order to recon-
sider the propriety of the Board's finding that a bar-
gaining order is appropriate, and asks that the ac-
tion of the Board in its Supplemental Decision be
stayed.
The Board, having duly considered the matter,
herewith denies the motion filed by the Respon-
dent, for the following reasons:
1. The motion does not comply with the Board's
Rules and Regulations. By notice dated November
7, 1969, the parties were given until November 21,
1969, to file with the Board statements of position
with respect to the effect of the opinion of the
Supreme Court of the United States in N.L.R.B. v.
Gissel Packing Company, supra, on the bargaining
order originally issued in this case . In its statement
of position filed in response to the notice, the
Respondent argued that the lapse of time since the
Union's demand for recognition was a factor which
the Board should consider in deciding whether to
1163 NLRB 105
' 181 NLRB 320
' The Board finds that the instant case is procedurally distinguishable
from N L R B v American Cable Systems, Inc, 427 F 2d 446 (C A 5) The
reaffirm its bargaining order or to direct an elec-
tion. The Respondent made no contention based
upon turnover. The Board duly considered the
lapse of time, as stated in the Board's Supplemental
Decision, but found that it did not prevent affirma-
tion of the bargaining order. The present motion
does not comply with applicable Section 102.48(d)
of the Board's Rules and Regulations, Series 8, as
amended, in that (1) it is not supported by an al-
legation or evidence that the matters raised therein
are in the nature of newly discovered evidence or
for any other merireason merit consideration at this
stage of this proceeding; and (2) in the light of (1),
since the Respondent's motion was filed more than
20 days after the Board's Supplemental Decision, it
therefore is untimely.
2. In any event, the Board finds that the motion
is lacking in merit . The Board interprets the
opinion of the Supreme Court of the United States
in N.L.R.B. v. Gissel Packing Company, supra,
610-13, as permitting the issuance of a bargaining
order where, as here, the standards therein are met,
regardless of the passage of time and the union's
loss of majority by turnover or otherwise since the
commission of the unfair labor practices and the
union's demand for recognition. See, e.g., Horace
Simmons, d/b/a Vaca Valley Bus Lines, 179 NLRB
641. See also N.L.R.B. v. L. B. Foster Company,
418 F.2d 1 (C.A. 9), cert. denied 397 U.S. 9903' As
the court of appeals pointed out in Foster, to permit
turnover to preclude the issuance of a bargaining
order would "be an added inducement to the em-
ployer to indulge in unfair practices in order to de-
feat the union in an election. He will have as an
ally, in addition to the attrition of union support in-
evitably springing from delay in accomplishing
results, the fact that turnover itself will help him, so
that the longer he can hold out the better his
chances of victory will be." (Supra, 5.)
Once an employer's obligation to recognize and
bargain with a union arises, the union's majority
status must be presumed to continue and may not
be attacked at least until the employer has satisfied
his statutory obligation. Through prolongation of
litigation herein Respondent has thwarted the statu-
tory command at all times since 1964, and the
Board is not now disposed to reward Respondent's
efforts by relieving it of its still unfulfilled obliga-
tion.
Accordingly,
It is hereby ordered that the motion to reopen
the record filed by the Respondent on March 26,
1970, be, and it hereby is, denied.
court remanded that case for consideration of evidence of turnover
proffered before the issuance of the Board 's Supplemental Decision and
Order In any event , the Board respectfully disagrees with the court's deci-
sion in that case
184 NLRB No. 13