Red Barn System, Inc., 1586 (1976)

Red Barn System, Inc and Retail Clerks Local Union 298, affiliated with Retail Clerks International Association, AFL-CIO Cases 8-CA-8422 and 8RC-9367

June 22, 1976 DECISION AND ORDER

By CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO

On February 24, 1975, Administrative Law Judge Frank H Itkin issued the attached Decision in this proceeding Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in support of the Administrative Law Judge's Decision Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified below We find, in agreement with the Administrative Law Judge, that a remedial bargaining order is warranted in the circumstances herein In so finding, however, we believe some additional comments are in order This is not one of those cases where the unfair labor practices committed are either so minor in character or so isolated in nature that no bargaining order remedy is required On the contrary, the conduct engaged in by Respondent can only properly be described as a massive and blatantly unlawful response to employee organizational activities, the impact of which reached all employees in the bargaining unit After being presented with a claim for recognition by the Union, Respondent immediately embarked upon a program designed to eliminate employee support for the Union How successful Respondent was in achieving its objective can perhaps best be demonstrated by the fact that prior to the commencement of this unlawful campaign the Union had valid authorization cards from 20 of the 23 unit i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to over rule an Administrative Law Judge s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products Inc 91

NLRB 544 (1950) enfd 188 F 2d 362 (CA 3, 1951) We have carefully examined the record and find no basis for reversing his fmding^ employees, yet only 3 months later the Union only received 3 votes at a Board-conducted election Respondent's campaign was launched with Store Manager Hovanic's questioning of 14 to 16 of the 23 unit employees for the purpose of learning 'who's behind this union thing' and what the employees expected to gain by a union Upon learning the identity of two of the Union's leading adherents, Hovanic then subjected the two individuals to a detailed and patently coercive interrogation It was during these latter interrogations that Hovanic learned that the employees wanted a hospitalization insurance program Soon thereafter, Hovamc responded by distributing to all unit employees the 'Highlight Summary' and 'Employee Enrollment Application' for a group life and health benefits program for Respondent's hourly paid employees and their families By this conduct Respondent granted a new benefit to employees, and such action is patently unlawful The employees would not be likely to miss the inference that the source of benefits so conferred is also the source from which all future benefits must flow Also, and perhaps more important from the standpoint of a remedy, the unlawful effects of this conduct cannot easily be erased for the benefit remains in effect and, if another election is held, it will serve as a constant reminder to employees of the Respondent's use of economic weapons to defeat the Union Nor is this by any means the only unlawful conduct which would have a lingering effect The discriminatory delay in rehiring employee D'Amato and the circumstances which prompted her rehire are not likely to be forgotten by the employees D'Amato, who had been identified as one of the union ringleaders during Respondent's unlawful interrogation of its employees, quit herjob after being criticized by management officials Within an hour D'Amato reconsidered her decision and asked for her job back She explained to Store Manager Hovanic that she acted impulsively and asked if she really had to quit Hovanic replied 'Under the circumstances, yes ' D'Amato then asked, '[W]hat circumstances,' and Hovanic explained '[T]he circumstances regarding the Union and the hearing ' 2 The following day, Hovanic told D'Amato that the only way he would be able to rehire her was if the Union lost the election After reflecting on this comment for several days,

D'Amato returned to the store to tell Hovanic that she wanted to have nothing more to do with the Union and once again asked if she could be hired She was rehired that same day As one might expect in such circumstances, D'Am2 D Amato had only a week earlier testified as a witness for the Union at a Board conducted hearing on the Union s representation petition 224 NLRB No 207

RED BARN SYSTEM, INC 1587 ato shifted her allegiance to Respondent and became active on its behalf After her rehire, D'Amato tape recorded the discussion at a union meeting and replayed the tape for Hovanic 4 days before the election D'Amato also served as the Company's observer at the Board-conducted representation election and, after the election, was promoted to the position of 'Relief Manager ' The unfair labor practices committed against D'Amato would of necessity have a deep and lasting effect on the other employees From the employees' viewpoint, the lesson to be learned was that the Respondent would show no leniency to those who supported the Umon, but those who renounced it and pledged their allegiance to Respondent would be rewarded Having witnessed the fact that one of the leading union activists was unable to withstand Respondent's unlawful pressures, it is unlikely that a less committed employee would be willing to accept the risk that a decision to support the Union would not result in retaliation from Respondent Indeed,

D'Amato's continued presence at the store would insure that the painfully learned lesson as to how Respondent treats supporters of the Union would not be forgotten Accordingly, the unfair labor practices committed with respect to D'Amato necessarily must be viewed as having a continuing impact on the employees' exercise of their Section 7 rights under our Act Just as D'Amato's job hinged on whether she was willing to forgo her union activities, other employees were faced with a similar election by reason of Respondent's unlawful threat to impose more rigid working hours by discontinuing the existing policy of allowing the employees to leave work 10 minutes early or to report to work 10 minutes late This was no small matter because many of the unit employees worked on a part-time basis for the Respondent while pursuing their education as full-time students at a nearby university The policy of granting students 10 minutes leeway in reporting or leaving was a recognition of the difficulty the students experienced in attempting to balance their class and work schedules If Respondent had withdrawn this condition, as it threatened to do, many students would have been forced to choose between work and class commitments Obviously, this threatened change, had it been carried out, would have had a substantial impact on the employees We must recognize that Respondent's work force was and is now a group which contains a large number of students and is subject to a rapid turnover As such, the work force is particularly vulnerable to the type of unlawful economic pressures employed by Respondent here Furthermore, it should also be recognized that employees whose employment is to be for a limited period of time can have their desire for union representation thwarted simply by the realization that their employment will have ended long before the Respondent can be legally forced to sit down and bargain with the duly authorized representative of its employees Just in case this was not clear to all the employees, however, Respondent held a series of meetings with the employees to drive this point home At these meetings employees were told that Respondent 'was so powerful that the Union couldn't make them do anything [or] agree to anything [but Respondent would just] sit down and bargain in good faith [which] might be tied up in court for a long time and [the employees] wouldn't benefit from it because of the great turnover ' We find that the remarks in question were designed to convince the employees that the selection of a bargaining representative would be a futile act and that by engaging in such conduct, Respondent seriously interfered with its employees' right to exercise their Section 7 rights under our Act The remarks in question merely give voice to Respondent's determination to use whatever means were necessary, be they lawful or unlawful, to keep the Union out of its store Such fixed determination is not likely to be overcome by a conventional cease-and-desist remedy Therefore, we agree with the Administrative Law Judge that a bargaining order is warranted to remedy the extensive and pervasive unfair labor practices committed by Respondent We further find that Respondent's refusal to recognize and bargain with the Union on and after Jr nuary 16, 1974, in the circumstances here, violated Section 8(a)(5) of the Act Although the consolidated complaint did not specifically allege an 8(a)(5) violation, we assume that this failure resulted from our decision in Steel-Fab, Inc, 212 NLRB 169 (1974), which was modified in Trading Port, Inc, 219 NLRB 298 (1975) In any event, the record discloses that the issue of Respondent's obligation to bargain was fully litigated at the hearing Thus, the...

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