New Alaska Development Corp.

National Labor Relations Board - Board Decisions

Jan 27, 1970

180 N.L.R.B. 971 (N.L.R.B. 1970)

NEW ALASKA DEVELOPMENT CORP. 971
New Alaska Development Corp ., Alaska Housing
Corporation and Construction and General
Laborers Union Local 341, affiliated with
Laborers International Union of North America,
AFL-CIO. Cases 19-CA-3564, 19-CA-3841, and
19-R M-632
January 27, 1970
SUPPLEMENTAL DECISION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On April 30, 1969, the National Labor Relations
Board issued its Decision and Order in the
above-entitled proceeding,' finding that Respondent
had engaged in and was engaging in certain unfair
labor practices in violation of Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended,
and ordering Respondent to cease and desist
therefrom and take certain affirmative action
designed to effectuate the policies of the Act,
including bargaining with the Union. The Board
also set aside the representation election conducted
in Case 19-RM-632 and directed the dismissal of
that case in its entirety.
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, affirming
generally the Board's use of authorization cards in
determining a union's majority status and the
Board's power to issue a bargaining order based
upon such showing where the employer's unfair
labor practices had a tendency to undermine the
Union's majority and impede the election process.
On October 23, 1969, the Board informed the
parties that the Board would reconsider its 8(a)(5)
finding and the bargaining order in this case in the
light of the guidelines laid down by the Supreme
Court and invited the parties to file statements of
position. Such statements have been filed by the
General Counsel and Respondent. Respondent also
filed a motion to reopen the record to adduce
further evidence in support of its contention as
hereinafter set forth.
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
and, for the reasons set forth below, reaffirms its
original finding that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to recognize
the Union as majority representative of the
employees, and that a bargaining order is necessary
to effectuate the purposes and policies of the Act in
1175 NLRB No. 131.
this case.
In its original decision the Board found, in
agreement with the Trial Examiner, that
Respondent had violated Section 8(a)(1) of the Act
by interrogating an employee regarding her union
sympathies and threatening economic reprisals of an
unspecified but foreboding nature against employees
if the Union should win a representation election.
Thus, the record disclosed and the Board found, that
on the very morning of the election, one of
Respondent's supervisors spoke disparagingly of the
Union to three of the leading union adherents under
his supervision, warning them that if the Union were
voted in they would "see what was going to
happen." He informed these employees that he knew
what was going to happen, but added that he could
not tell them.
With respect to the allegation that Respondent
violated Section 8(a)(5) of the Act, the evidence
showed that the Union, on the date it had demanded
recognition, possessed valid cards authorizing it to
represent the employees in collective bargaining
from 13 of the Respondent's 19 employees. In view
of the seriousness of the unfair labor practices
found, the Board found that Respondent had
violated Section 8(a)(5) and issued an order
directing it to bargain with the Union=
We have reviewed the evidence in this case in the
light of the Supreme Court's decision in Gissel
Packing Company, supra, and are of the opinion
that the unfair labor practices committed by
Respondent were such as to preclude the holding of
a free and fair election. We are convinced that the
authorization cards executed by a majority of the
employees were a more reliable test of their desire
for representation by the Union than could have
been obtained by the holding of another election.
Accordingly, we reaffirm the findings and shall
reaffirm the remedy provided in the original
Decision and Order herein.
Respondent, however, contends that the effect of
any threat made 2 years ago, at the time of the
election, has long since been dissipated by the
passage of time and employee turnover and that a
free and fair election may now be held. In support
of its position Respondent has submitted affidavits
from 12 of its present complement of 15 employees
which indicate that these employees have no
knowledge of any threat made by any supervisor
concerning the Union. In the alternative Respondent
moves to reopen the hearing to hear evidence on the
question of whether or not the effects of the threat
have been dissipated.
It is now well settled that the Board is not
precluded from issuing a bargaining order even
though a great length of time and a substantial
turnover of personnel has occurred since the
,commission of the unfair labor practices. N.L.R.B.
'The Board also ordered the election, which the Union had lost seven to
six with one challenged ballot, set aside , and dismissed the petition.
180 NLRB No. 150
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
v. Katz, 369 U.S. 736; Franks Bros. Co. v.
N.L.R.B., 321 U.S. 702; N.L.R.B. v. P. Lorillard
Co., 314 U.S. 512. And the Supreme Court has
reaffirmed this authority in the Gissel Packing
Company case, supra, stating that "If the Board
could enter only a cease-and-desist order and direct
an election or a rerun, it would in effect be
rewarding the employer and allowing him to profit
from [his] own wrongful refusal to bargain.' "' Inthe
light of the unfair labor practices committed by
Respondent, which were of such a nature as to
preclude the holding of a free and fair election, we
believe that effectuation of statutory policies
requires the exercise of such authority in this case.
We therefore find no merit in Respondent's
contention and deny its Motion to Reopen the
Record.
SUPPLEMENTAL ORDER
Based on the foregoing, and the entire record in
this case, the National Labor Relations Board
hereby affirms its Order issued in this proceeding on
April 30, 1969.
'See N L.R B v L B Foster Company, 418 F 2d I (C A. 9), decided
October 31, 1969, where the court rejecting a contention similar to the one
made here , stated
Emphasis is given to the rapid turnover of the employer's personnel as a
reason for not enforcing the order But we think this is a reason to
enforce . Otherwise there will be an added inducement to the employer to
engage in unfair labor practices in order to defeat the union in an
election He will have as an ally, in addition to the attrition of union
support inevitably 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