The Pembek Oil Corp.

National Labor Relations Board - Board Decisions

Jan 27, 1970

180 N.L.R.B. 967 (N.L.R.B. 1970)

PEMBEK OIL CORP. 967
The Pembek ON Corporation and International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 677. Case I-CA-5652
January 27, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On June 14, 1967, the National Labor Relations
Board issued its Decision and Order in the
above-entitled proceeding,' finding that Respondent
had engaged in conduct violative of Section 8( a)(1),
(3), and (5) of the National Labor Relations Act, as
amended, and ordering Respondent to cease and
desist therefrom and to take certain affirmative
action set forth therein. Thereafter, the Court of
Appeals for the Second Circuit enforced the Board's
Order in all respects excepting that portion thereof
requiring Respondent to recognize and bargain with
the Union on the basis of the Union's authorization
card majority.' Subsequently, the Supreme Court of
the United States, which upheld a similar Board
bargaining order in N.L.R.B. v. Gissel Packing
Company, 395 U.S. 575, granted the Board's
petition for certiorari' and remanded the proceeding
to the Second Circuit Court of Appeals with
instructions to remand same to the Board for
reexamination of the Board 's 8(a)(5) order to
bargain in the light of Gissel. On July 9, 1969,
Respondent filed a Motion for Permission to File
Brief and for oral argument. Thereafter, the Second
Circuit Court of Appeals vacated its earlier
judgment and entered an Order of Remand to the
Board. On August 12, 1969, the Board notified the
parties of its decision to reconsider its 8(a)(5)
findings and order, and invited statements of
position with respect to the remanded issue. Such
statements have been filed by Respondent and the
General Counsel.
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 again reviewed the entire record in
this case, including the statements of position,' and,
for the reasons stated below, affirms its original
findings that Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to recognize and
bargain with the Union as majority representative of
the employees in an appropriate unit, and that a
bargaining order is necessary to effectuate the
purposes and policies of the Act.
'165 NLRB No. 51.
1404 F.2d 105.
3395 U.S. 828.
The record shows that on September 12, 1966, the
Union possessed valid authorization cards from a
majority of the employees, notified Respondent of
its majority status, and requested recognition and
bargaining. A few hours later, Collins, the initiator
of the union movement at Respondent and the
distributor of authorization cards, was unlawfully
discharged for reasons which not only were contrary
to Respondent's policy, but which were not fully
known by the supervisor who effectuated the
discharge. Within the next few days, Respondent
rejected the Union's request to bargain, and the
employees struck to protest both this rejection and
Collins' unlawful discharge. At the conclusion of the
strike, Respondent ignored the Union, met and
bargained directly with the employees, and
suggested that they prepare proposals for future
meetings which Respondent promised to hold,
thereby instilling in the employees the hope that
future benefits might be forthcoming. During this
meeting, however, acting ostensibly on the advice of
its attorney who returned a phone call which had
been placed to him by Respondent prior to the
beginning of the meeting, Respondent told the
employees that it could not meet further with them
because of their union representation. Later this
same day, all employees except Collins rescinded the
authority previously given the Union to represent
them.
The Board found that Respondent not only
refused in the first instance to bargain with a validly
designated majority representative, but also violated
Section 8(a)(3) by discharging the most active union
protagonist because of his union activities; violated
Section 8(a)(5) by bypassing the Union and dealing
directly with the employees; and violated Section
8(a)(1) by conduct which induced employees to
repudiate the representative of their choice. The
Court of Appeals for the Second Circuit agreed with
such findings.
We have carefully reconsidered the issues in this
case in the light of the Supreme Court's opinion in
Gissel, supra. We are of the opinion that the
Respondent's violations of the Act, as set forth
above, were of such a nature as to have lingering
effects which make the possibility of erasing those
effects and ensuring a fair election by the use of
traditional remedies slight, if not impossible. In
these circumstances, we find that the rights of the
employees can best be protected, and the purposes
of the Act most fully effectuated, by reliance on the
employees sentiments expressed by the authorization
cards.' Accordingly, we shall affirm the unfair labor
practice findings and the remedy provided therefor
in the original Decision and Order herein.
'As the record herein adequately presents the positions of the parties,
Respondent 's request for oral argument is hereby denied
'In light of Glssel. which was issued subsequent to the Second Circuit's
decision herein , we respectfully disagree with the conclusion of the Court
of Appeals for the Second Circuit in its initial decision herein that the
finding of an unlawful refusal to bargain need not necessarily be remedied
by a bargaining order.
180 NLRB No. 87
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL ORDER record as a whole, the National Labor Relations
Board affirms its Order of June 14 , 1967, in this
In view of the foregoing , and on the basis of the proceeding.