Bardahl Oil Co.

National Labor Relations Board - Board Decisions

Mar 7, 1967

163 N.L.R.B. 260 (N.L.R.B. 1967)

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bardahl Oil Company and Automotive,
Petroleum and Allied Industries Employees
Union , Local 618, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 14-CA-3978.
March 7,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On November 15, 1966, Trial Examiner Melvin
Pollack issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions
and brief, and the entire record in this case, and
hereby adopts the Trial Examiner's findings,
conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Bardahl Oil
Company, St. Louis, Missouri, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: This proceeding,
heard at St. Louis, Missouri, on September 21, 1966,
pursuant to a charge filed on May 23, 1966, and a
complaint issued July 26, 1966, presents the question
whether Respondent, Bardahl Oil Company, violated
Section 8(a)(5) and (1) of the National Labor Relations Act,
as amended, by refusing to bargain collectively with the
Charging Union as the exclusive representative of the
drivers-salesmen employed by Respondent at its branch
office in St. Louis, Missouri.
Upon the entire record,' and after due consideration of
the briefs filed by Respondent and the General Counsel, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is engaged in the manufacture, sale, and
distribution of an oil additive and related products. During
the fiscal year ending June 30, 1966, a representative
period, Respondent shipped products valued in excess of
$50,000 to points outside Missouri. I find that Respondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it would
effectuate the policies of the Act for the National Labor
Relations Board to assert its jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
Respondent employed five salesmen in the St. Louis
area in April 1966.2 Four salesmen signed cards
designating the Union as their bargaining agent between
April 19 and 22. By letter of April 22, Assistant Business
Representative William Shackles notified Vice President
Richard F. Fecht that the Union represented a majority of
Respondent's salesmen and requested a bargaining
meeting. On April 29, Vice Presidents Fecht and Frank A.
Gerardot met with Shackles and Carl Gibbs of the Union.
Shackles presented cards signed by salesmen Clarence L.
Ferguson, Richard N. Foppe, Daniel Lee Roessmer, and
Sidney J. Atkinson, Jr., to Fecht and Gerardot. He said the
fifth salesman, Frank Meyerkord, had not signed a card.3
Fecht and Gerardot said they had no doubt that the cards
were authentic and Fecht said he would present the
question of recognition to Respondent's board of directors.
He asked Shackles to submit a proposed contract and to
furnish copies of the Union's pension plan and health and
welfare plan. Shackles gave Fecht a copy of the pension
plan and said he would deliver or mail to Respondent a
contract proposal and a copy of the health and welfare
plan. Shackles delivered these documents to Respondent
on May 2.
Attorney Dewey Godfrey notified Shackles on May 6
that he was Respondent's "legal counsel" and met with
Shackles and Jim Kelly of the Union on May 18. Shackles
asked Godfrey if Respondent was going to recognize the
Union. Godfrey replied that Respondent had decided to
change its method of distribution and would not recognize
the Union because it was going "to do away" with its
salesmen. Shackles said Respondent's position left the
Union "very little alternative" and would "in all
probability" lead to a strike. Godfrey said he would report
' Motions by Respondent and the General Counsel to correct ' Meyerkord was hired by Respondent on October 15, 1956,
the record are granted and became a branch manager in June 1957 At the time of the
' All dates are in 1966 unless otherwise noted hearing, he was employed by Respondent in the St Louis area as
a "resident salesman " on a straight commission basis.
163 NLRB No. 32
BARDAHL OIL CO. 261
the Union's position to Respondent. On May 20, Godfrey
told Shackles that Respondent was "very firm" in its
position and would "stick to [its] guns." Shackles asked
Godfrey "what the new method of distribution would be"
and Godfrey replied that it did not include the salesmen.
Shackles met with the four salesmen who had signed
cards on Sunday, May 22, reported what Godfrey had said
to him, and recommended a strike. The men voted
unanimously to go on strike the next day.
The strike began Monday, May 23." Shackles and Carl
Gibbs of the Union met with Attorney Murray Randall,
who had replaced Godfrey as Respondent's counsel, on
June 23. Randall said Respondent considered the
salesmen "management trainees" rather than drivers-
salesmen and did not feel "their management should be
represented by a union." He showed Shackles minutes of
a February 1966 meeting at which Respondent's board of
directors had authorized Vice President Gerardot to
review its management -trainee program at St. Louis and
also showed him Gerardot's subsequent recommendation
that the program be discontinued in July." Shackles asked
Randall to find out if Respondent would consider using the
salesmen "under their new method of distribution" and
said the Union "would be glad to discuss any method they
might have of changing it to include these" men. Randall
said he would check with Respondent. He subsequently
advised Shackles that Respondent would not discuss
"anything along those lines" with the Union.
B. The Duties of the Salesmen
Salesmen Ferguson, Atkinson, Foppe, and Roessner
were hired on July 26, October 20, and November 4 and
29, 1965, respectively.6 At their hiring interviews, they
were told that they would work on a salary plus
commission, that they would have a sales territory and
would service accounts, and would also collect money due
Respondent. They were also told that chances for
advancement were excellent and that, depending on their
ability as salesmen , they might become branch managers.
The salesmen, including Meyerkord, attended training
meetings which were conducted approximately once a
month by Sales Manager Frank E. Kaveney and
Supervisor Charles Ostrander. The salesmen were shown
films on sales techniques, and Kaveney and Ostrander
gave them "tips on sales" and sometimes showed them
how to demonstrate a product Respondent wanted to push.
C. Discussion and Conclusions
The evidence adduced at the hearing establishes, and
Respondent does not dispute, that the Union represents a
majority of its salesmen in the St. Louis area. Respondent
contends, however, that only Meyerkord, who did not sign
a union card, is a regular salesman and that the four
striking salesmen are "management trainees" who do not
properly belong in any bargaining unit. The pertinent
evidence on this issue may be summarized as follows:
Respondent distributes its products through distributors
and through 11 branch offices. Normally the salesmen in
all branch offices work on commission. In 1956,
Respondent set up a branch manager training program in
St. Louis. Under "phase one" of this program, salesmen
are paid a fixed salary plus commission and receive
training by supervisors on how to demonstrate and sell
Respondent's specialized products. Salesmen with
excellent sales records may be selected for "phase two" of
the program, during which they receive training from Vice
President Gerardot on "how to be a good sales manager."
Fourteen trainees became branch managers during the
period January 1956-November 1962. Since 1962,
Respondent has not filled a branch manager position from
the program. Such vacancies have been filled by
promoting branch supervisors who are, in effect, assistant
branch managers, after they have attended a "class"
conducted by Gerardot.
While the four strikers were told at their hiring
interviews that they might qualify for promotion to a
branch manager, they were not assured of such a position,
nor was their continued employment made expressly
contingent upon their qualifying for such a position. They
were never selected for "phase two" of Respondent's
training program and worked for Respondent until they
struck on May 23 as route salesmen, performing the same
work and attending the same sales meetings as
Meyerkord, admittedly a regular salesman. In these
circumstances, I find that the four strikers are not
management personnel and that together with Meyerkord
they constitute an appropriate bargaining unit . Cf. Barker-
Colman Company, 130 NLRB 478, 480.
Respondent also contends that its refusal to bargain
with the Union stems from its good-faith belief that the
strikers are part of management and therefore, even if
wrong in this belief, that its refusal to bargain is not a
violation of the Act. The Board holds, however, that an
employer's good or bad faith in challenging the
appropriateness of a unit does not affect the efficacy of a
Section 8(a)(5) proceeding to determine that question. Tom
Thumb Stores, Inc., 123 NLRB 833; Hearst Consolidated
Publications, Inc., 156 NLRB 210. In any event, the record
shows that the strikers had no management attributes
whatever and worked as ordinary route salesmen, that
Respondent, in apparent recognition of this fact, initially
refused to bargain with the Union on the sole ground that it
was going to change its method of distribution and let the
salesmen go, and that Respondent first claimed that the
strikers were "management trainees" after the strike had
been in progress for a month. In these circumstances, I
find that Respondent's belated claim that all the salesmen
but Meyerkord are management personnel is not made in
good faith.
I therefore conclude, as alleged in the complaint, that
Respondent ,iolated Section 8(a)(5) and (1) of the Act by
refusing to bargain collectively with the Union on and after
April 29, 1966, as the representative of its salesmen in the
St. Louis area.
' The stoke was contmumg at the time of the hearing on
September 21
S The facts pertaining to Respondent 's contention that the
striking salesmen are management personnel are summarized,
infra
" Ferguson answered a newspaper advertisement , reading in
part
Salesman
We are looking for an aggressive salesman, who is ambitious
and desires advancement Our branch managers are chosen
from this program Monthly salary plus vehicle and expenses,
plus all company benefits Experience in selling automotive
field specialties preferred, but not essential Age 25-45
Atkinson applied for work with Respondent at Ferguson's
suggestion Foppe and Roessner answered an advertisement
similar to the one answered by Ferguson
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record establishes that the salesmen struck on
May 23 in protest against Respondent's unlawful refusal to
bargain with the Union and that Respondent refused on
June 23 to discuss with the Union even the "possibility" of
using the strikers under any new method of distribution
that might be established. I therefore find that the strike
was caused and prolonged by Respondent's unlawful
refusal to bargain with the Union.
CONCLUSIONS OF LAW
1. By refusing to bargain with the Union as the
bargaining representative of its salesmen in St. Louis,
Missouri, Respondent has engaged in and is engaging in an
unfair labor practice affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
2. The strike which began on May 23, 1966, is a strike
caused and prolonged by Respondent's unlawful refusal to
bargain with the Union.
THE REMEDY
I shall recommend that Respondent cease and desist
from its unlawful conduct, and, affirmatively, that it
bargain with the Union, upon its request, and post an
appropriate notice.
Having found that the strike which began on May 23,
1966, was an unfair labor practice strike, I shall
recommend that Respondent, upon application by the
strikers, offer them immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
dismissing, if necessary, all persons hired on and after
May 23, 1966, and make the applicants whole for any loss
of pay suffered by reason of Respondent's refusal, if any,
to reinstate them, by payment to each of them of a sum of
money equal to that which he normally would have earned
less his net earnings, during the period from 5 days after
the date on which he applies or has applied for
reinstatement to the date of Respondent's offer of
reinstatement. Backpay shall be computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289,
with interest added thereto in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
there is hereby issued, pursuant to Section 10(c) of the
Act, the following:
RECOMMENDED ORDER
Respondent, Bardahl Oil Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with the Union as the exclusive
bargaining representative of its salesmen at its branch
office in St. Louis, Missouri.
(b) In any manner interfering with the efforts of the
Union to bargain collectively with Bardahl Oil Company,
St. Louis, Missouri.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive bargaining representative of its salesmen at
its branch office in St. louts, Missouri.
(b) Upon application, offer immediate and full
reinstatement to their former or substantially equivalent
positions to the salesmen at its St. Louis, Missouri, branch
office, who went on strike on May 23, 1966, without
prejudice to their seniority or other rights and privileges,
dismissing, if necessary, all persons hired on and after that
date, and make such applicants whole for any loss of pay
suffered by reason of Respondent's refusal, if any, to
reinstate them by payment to each of them of a sum of
money computed in the manner set forth in the section
hereof entitled "The Remedy."
(c) Post at its branch office in St. Louis, Missouri,
copies of the attached notice marked "Appendix."7 Copies
of said notice, to be furnished by the Regional Director for
Region 14 of the Board (St. Louis, Missouri), shall, after
being duly signed by an authorized representative, be
posted by Respondent immediately on receipt thereof, and
be maintained for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by other material.
(d) Notify the aforesaid Regional Director, in writing,
within 20 days from receipt of this Decision, what steps it
has taken to comply herewith."
' In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL bargain collectively with Automotive,
Petroleum and Allied Industries Employees Union,
Local 618, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining
representative of all employees in the following
bargaining unit:
All drivers-salesmen at our St Louis, Missouri,
branch office, exclusive of office clerical
employees, guards, professional employees, and
supervisory employees, as defined in the Act.
WE WILL, upon application, offer to all strikers at
our St. Louis, Missouri, branch office, immediate and
full reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of pay they may suffer as a
ST. LOUIS COUNTY WATER CO. 263
result of any refusal to reinstate them upon such
application.
BARDAHL OIL COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any othei material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directiy with the Board' s Regional Office, 1040 Boatmen's
Bank Building, 314 North Broadway, St. Louis, Missouri
63102, Telephone 622-4154.
St. Louis County Water Company and Walter
V. Jones . Case 14-CA-4077.
March 7, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 22, 1966, Trial Examiner John F.
Funke issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief and the Respondent
filed a brief in support of the Trial Examiner'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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this
case, including the exceptions and briefs, and
' The General Counsel's exceptions related almost solely to the
Trial Examiner's credibility findings upon which he based his
recommendation for dismissal On the basis of our own careful
review of the record, we conclude that these credibility
resolutions are not contiary to the clear preponderance of all the
relevant evidence Accordingly, we find no basis for disturbing
those findings Standard Dry Wall Products, Inc , 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We note that Jones, the alleged
discriminatee, was originally employed by Respondent on
April 20,1966, as asserted by the General Counsel, rather than on
April 8, 1966, as set forth by the Trial Examiner, but deem this
discrepancy to be of no significance No exception was taken to
the Trial Examiner's findings concerning commerce jurisdiction
hereby adopts the findings, conclusions, and
recommendation of the Trial Examiner.[
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint be, and it hereby is,
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon a charge filed
August 9, 1966,i by Walter V. Jones, herein Jones, against
St. Louis Water Company, herein the Water Company or
Respondent, the General Counsel issued a complaint
alleging Respondent violated Section 8(a)(3) and (1) of the
Act by terminating the employment of Jones because he
asked for and took time off to vote in a general primary
election for the State of Missouri on August 2.
The answer of Respondent denied the commission of
any unfair labor practices.
This proceeding, with all parties represented, was heard
before me at St. Louis, Missouri, on October 17, and at the
conclusion of the hearing the parties were granted leave to
submit briefs. Briefs were received from the General
Counsel and the Respondent on November 7.
Upon the entire record in this case and upon my
observation of the witnesses while testifying, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent has its principal place of business at
University City, Missouri , where it is engaged in the
manufacture , sale, and distribution of potable water at its
water processing plant at Chesterfield , Missouri , the only
plant involved in this proceeding.
During the calendar year 1965, a representative year,
Respondent manufactured , sold, and distributed water
valued in excess of $250,000.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
Utility Workers Union of America, AFL-CIO, is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
Walter V. Jones, the Charging Party, was employed by
the Water Company on April 8, 1966, as a groundsman. As
a new employee he was subject to a probationary period of
120 days, pursuant to an agreement between the Water
Company and Utility Workers Union of America,
AFL-CIO, herein the Union. The Water Company and the
Union had in effect at all times during the employment of
' Unless otherwise noted all dates refer to 1966
163 NLRB No. 33