Condon Transport, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1974

211 N.L.R.B. 297 (N.L.R.B. 1974)

CONDON TRANSPORT, INC. 297
Condon Transport, Inc. and General Teamsters,
Warehouse and Dairy Employees Union Local 126,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Help-
ers of America. Cases 30-CA-2188 and
30-CA-2405
June 10, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On February 25, 1974, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, the Respondent
filed a brief in opposition thereto as well as cross-
exceptions and a supporting brief, and the Charging
Party filed a brief in reply to Respondent's opposi-
tion and in opposition to the cross-exceptions.
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 attached Decision in
light of the exceptions 1 and briefs and has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Condon Transport,
Inc., Ripon, Wisconsin, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order.
I The General Counsel's exceptions include a request that the Order
provide that Respondent pay to the Board and the Union the costs and
expenses incurred by each in the investigation , preparation , presentation,
and conduct of this case as provided in Tiidee Products, Inc., 194 NLRB
1234. We do not find sufficient evidence to support a finding that
Respondent's defenses constituted frivolous litigation within the meaning of
Tiidee Products and, accordingly , deny the General Counsel 's request.
Thus, having denied the General Counsel 's request , we find Respondent's
exception to be moot.
Members Fanning and Jenkins do not rely on the Administrative Law
Judge's dictum concerning Telautograph Corporation, 199 NLRB 892.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This case
was heard in Green Lake, Wisconsin, on October 16 and
17, and December 11 and 12, 1973, upon charges filed on
December 21, 1972, and July 18, 1973, and a consolidated
complaint which issued on August 27, 1973, alleging that
Respondent independently violated Section 8(a)(1) of the
Act by unlawfully assisting employees in the filing of a
decertification petition, and Section 8(a)(5) of the Act by
withdrawing recognition and refusing, since October 10,
1972, to bargain with the Union as majority representative
of employees in the appropriate bargaining unit. Respon-
dent filed an answer, admitting certain facts, but denying
the commission of any unfair labor practices. After the
hearing, the General Counsel, Charging Party, and
Respondent filed briefs.
Upon the entire record, including consideration of the
briefs, and my observation of the demeanor of the
witnesses while testifying, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, Condon Transport, Inc., is a Wisconsin
corporation engaged in the transportation of petroleum
products by motor truck from its place of business in
Ripon, Wisconsin. During the calendar year preceding
issuance of the consolidated complaint, a representative
period, Respondent in the course and conduct of said
operations derived revenues in excess of $50,000 for
services performed for Condon Oil Co., a Wisconsin
corporation, located in Ripon, Wisconsin. Condon Oil Co.,
during said calendar year, purchased goods valued in
excess of $50,000 from points located directly outside the
State of Wisconsin, and had gross revenues exceeding
$500,000.
The complaint alleges, the answer admits, and I find that
the Respondent is and, at all times material , has been an
employer as defined in Section 2(2) of the Act, engaged in
commerce and in operations affecting commerce as
defined in Section 2(6) and (7) of the-Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
General Teamsters, Warehouse and Dairy Employees
Union Local 126, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The ultimate issue in this case is whether Respondent,
following recognition of the Union, acted lawfully in
subsequently withdrawing recognition and refusing to
bargain further. Respondent argues that said action was
perfectly legitimate in view of the decertification activities
of unit employees and a good-faith doubt that the Union
continued to represent a majority. The General Counsel,
with concurrence of the Charging Party, asserts that
Respondent was not free to assert such a defense, in view
of its unlawful assistance of the decertification activity, as
confirmed by background evidence, which, as the argu-
211 NLRB No. 37
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment goes, shows that Respondent, at all times , was guilty
of bad faith , and intent on undermining the Union's
representative status . Finally, Respondent argues that,
even if the General Counsel were sustained as to the above
matters, any bargaining order should be withheld pursuant
to the policy set forth by the Board in Laura Modes
Company, 144 NLRB 1592.
B. Bargaining History
The duty to bargain with the Union first inured to
Respondent through a private settlement of an earlier
complaint issued by the Regional Director in Case
30-.CA- 1862. The settlement was effected on May 10,
1972, and consisted of an agreement whereby the parties
would be bound by various bargaining agreements and
Teamster-sponsored fringe benefit programs . The settle-
ment terms, in accordance with Section 8(d) of the Act,
plainly contemplated the parties execution of the govern-
ing documents . The Respondent's assistance to employee
decertification activity, which is the subject of the instant
complaint, allegedly began on May 11, 1972, the day after
an administrative law judge accepted the above agreement
adjusting the complaint in the earlier case.
C. Background
Condon Transport, Inc., is affiliated with and exclusively
engaged in the cartage of bulk petroleum products for
Condon Oil Company, which, in turn , is engaged in the
wholesale distribution and sale of Texaco products. Prior
to January 10, 1972, Condon Oil utilized independent
common carriers for over-the-road transport of its prod-
ucts, principally Bulk Transport Company. Bulk Transport
Company was under contract with the Charging Union.
Two of Bulk's drivers, Joseph M. Davis and Roy Voss,
were primarily engaged in servicing Bulk's Condon Oil
account. Some time in late 1970, Condon Oil began to
consider the possibility of purchasing equipment and
performing its own over-the-road hauling . In the spring of
1971, B. Kent Bauman, a vice president of Condon Oil
Company, began discussions with Voss and Davis as to
their possible employment with the new trucking opera-
tion . Bauman also sought the advice of Davis and Voss as
to their preferences for equipment and, ultimately, in
ordering same , accepted some of their recommendations.
As between Bauman , Davis, and Voss, there was no
question that Davis and Voss would be hired as drivers
when the new trucking operation commenced.
On January 10, 1972, Condon Transport formally began
operations . Davis and Voss were the only two drivers in its
employ at that time. Previous to that date, both had
discussed with Bauman the terms under which they would
be employed . Davis supplied Bauman with a copy of the
collective-bargaining agreement covering them at Bulk
Transport . Bauman assured them that, though he intended
to compensate them on a percentage -of-volume-handled
basis , rather than the hourly basis in effect at Bulk, both
I Prior to this , Davis and Voss had been working a substantial number of
overtime hours.
2 Prior to January 17, Voss and Davis were the only drivers in
Respondent's employ. A third driver, Richard Dykstra , was hired on that
would take home at least the equivalent of their prior
earnings . There was also discussion as to whether the
drivers would continue to be covered by the pension and
health and welfare plans which were in effect at Bulk under
auspices of the latter 's bargaining agreement with the
Charging Union. Although both men considered continued
coverage under these programs as extremely important,
Bauman did not provide conclusive assurances in this
regard.
Davis and Voss, in December 1971, contacted Donald F.
Wetzel, the Union's secretary-treasurer, urging him to
contact Bauman and consult him in their behalf. Wetzel,
since this was prior to actual employment of the two
drivers, advised them that, upon their execution of
membership applications , he would take action when the
time became appropriate. As indicated on January 10,
1972, Davis and Voss began their employment with
Respondent . That same day, both executed membership
applications and representation authorizations for Wetzel.
On January 12, 1972, Wetzel formally notified Respondent
that the Union represented the drivers and demanded
recognition . The demand letter further requested that
Bauman appear at the Union's office in Fond du Lac,
Wisconsin, either on January 17, 18, or 19, 1972. Bauman,
pursuant to this request, appeared at union headquarters
on January 19, 1972. At that time, he expressed an interest
in participating in the Union's pension and welfare
programs , but apparently was uncertain as to his interest in
being obligated to the Union in other respects . At this
meeting, Wetzel and Bauman discussed the latter 's desire
for a percentage method of compensation-such a system
of compensation differed from either the hourly or mileage
methods usually endorsed by the Union, but Wetzel was
open to such possibility. The meeting ended with Wetzel
giving Bauman copies of various agreements necessary to
operate as a Teamsters shop, and Bauman advising that he
would get back in touch after trying to further research the
percentage formula he planned to adopt.
When Wetzel subsequently heard nothing from Bauman,
he sent a letter to Bauman , acknowledging the initial
meeting, and requesting another . In the meantime, Davis
and Voss had become somewhat concerned at certain of
Bauman's activities . Both credibly testified that, shortly
after the Union's demand for recognition , Bauman
repeatedly questioned them as to "who signed the Union
cards." Voss further credibly testified that , the day after
Bauman's meeting with Wetzel , Bauman told him "There
would be no need for Teamsters because we would be paid
as good or better than what we were getting when we
worked for Bulk Transport ." Davis also credibly testified
that in late January 1972 Bauman told him "He could not
see paying the big overtime that the Union would demand,
and that if Roy [Voss ] and I [Davis] kept pushing the
Union, that he would have to go to maybe 40 hours and
maybe it would be a swing shift." ' Fearing that Bauman
was intent upon hiring new employees to pack the unit,2
Davis and Voss reported this possibility to Wetzel. As a
date . The suspicion of Voss and Davis as to possible packing of the unit was
probably based upon Bauman 's antiunion statements set forth above, as
well as their having seen Bauman's notation on certain employment
applications taken in the winter of 1971 to the effect that certain applicants
"Dislike Unions."
CONDON TRANSPORT, INC. 299
result, Wetzel, on February 2, 1972, filed a representation
petition.
Shortly after the filing of said petition, Bauman orally
agreed with a Board agent to execute a stipulation upon
consent election agreement. However, when the Regional
Office submitted such a document for Bauman's execution,
he failed to respond. Following successive inquiries by the
Region , Bauman on February 10, 1972, finally indicated he
would decline to sign on the stated ground that an election
ought to be deferred to afford the opportunity to vote to an
additional driver that Respondent planned to hire.
In the interim, on February 5, 1972, Bauman telephoned
Wetzel, and when Wetzel could not be reached, Bauman
requested his secretary to forward copies of the pension
plan and health and welfare programs, which in due course
were forwarded to Bauman.
On or about February 7, Bauman approached the drivers
with proposals on a percentage that would constitute their
basis for compensation. Davis and Voss refused to discuss
this with Bauman , referring him to their bargaining
representative.
On February 16, 1972, Bauman hired Preuss, a fourth
driver, who was added to the existing unit of Dykstra,
Davis, and Voss. Davis and Voss contacted Wetzel,
reporting that the Company was cutting runs and hiring
additional drivers. After consulting with Wetzel, they
tentatively decided to strike. The strike commenced on
February 22, 1972, and unfair labor practice charges in
Case 30-CA-1862 were filed that same day. On February
28 and 29, Wetzel by telephone and telegram contacted
Bauman , and indicated that Voss and Davis would return
to work. Both were reinstated on March 6, 1972.
On April 7, 1972, the Regional Director issued a
complaint in Case 30-CA-1862, alleging that Respondent
independently violated Section 8(a)(1) by threatening
employees that no union member would ever drive
Respondent's trucks, by coercive interrogation, threatening
to change work hours if employees selected a union,
threatening to fight to keep a union from representing
employees, and by bargaining individually with employees.
Said complaint further alleged that Respondent violated
Section 8(a)(3) of the Act by according preferential
consideration to applicants who signified a dislike of
unions, by assigning Davis and Voss less desirable work,
and by laying off Davis. Finally, the complaint alleged that
Respondent violated Section 8(a)(5) by granting, then
withdrawing, recognition of the Union, and, in any event,
that a bargaining order would be warranted in view of the
3 At the original hearing in this proceeding , I denied, on objection of
Respondent , the General Counsel the opportunity to litigate the allegations
in Case 30-CA-1862, as background . That complaint had been withdrawn
on the basis of a private settlement agreement , which the Regional Director
had no authority to set aside in issuing the instant complaint. By telegraphic
order, dated November 2, 1973, the Board , pursuant to the General
Counsel's appeal , reversed my ruling and remanded for hearing with respect
to "unlawful interrogation of prospective new employees and certain other
activities designed to destroy union status ...: At a resumption of the
hearing on December I I and 12, 1973, these additional matters were
litigated . On the basis thereof, I find that Respondent, through Bauman, did
engage in the acts of interrogation and revealed his antiunion sentiment
through coercive expressions set forth in the above text . Further, the
background evidence does contribute to my conclusion that Bauman was
pervasive nature of the other violations of Section 8(a)(1)
and (3).3
A hearing on said complaint opened on May 9. On May
10, the hearing was closed in view of the private settlement
reached by the parties with respect to the issues raised
therein.
As will be seen in greater detail, infra, the unfair labor
practices, which are the subject of the instant complaint,
allegedly commenced immediately after settlement of Case
30-CA-1862. However, a brief chronology of the ensuing
events may prove helpful.
Respondent did not immediately execute the supplemen-
tal agreement or rider that formed the predicate of the
above settlement. However, after several efforts by the
Union to obtain execution thereof, Respondent finally did
so on September 12, 1972.
That supplemental agreement, by its terms, was sched-
uled to expire on December 31, 1972. On October 10, 1972,
the Union notified Respondent of its intention to terminate
said agreement, and sought information as to a possible
meeting date for negotiation of a new contract .4 Thereaf-
ter, a decertification petition was filed with respect to
Respondent's drivers on October 30, 1972. No response to
the Union's request for renegotiation having been received,
the Union again wrote the Company on January 11, 1973,
forwarding a contract proposal and requesting a meeting
date. On January 16, 1973, Bauman wrote the Union,
stating:
We cannot meet or negotiate while a question of
representation is pending.
On January 23, 1973, the Union again requested that
Respondent bargain. On January 24, 1973, the instant
complaint issued. On January 30, 1973, Respondent
informed the Union that:
Because Condon Transport, Inc. has a good faith
doubt of the majority status of your Union and there
has been no adjudication that the petition for decertifi-
cation was in fact and in law illegally asserted, it
cannot agree to your demand to make arrangements
for a date, time and place to negotiate a new agreement
covering its employees represented by your Union.
In the meantime, Respondent, upon expiration of the
supplemental agreement, on December 31, 1972, unilater-
ally ceased contributing to the Union's health, welfare, and
pension programs. On February 1, 1973, Respondent
unilaterally put into effect a private health insurance plan.
not above interference with Sec. 7 rights of employees to any extent
necessary to accomplish his own objectives with respect to the ultimate
labor costs of Respondent's operations . On the other hand, Case
30-CA-1862 also alleged that Respondent engaged in certain discriminato-
ry actions with respect to applicants, as well as Davis and Voss. However,
the evidence adduced, in my opinion, does not substantiate these
allegations . Nonetheless , since the reasons for that conclusion would require
elaborate discussion , and the issues presented thereby are plainly cumula-
tive, it would be inappropriate to render a detailed accounting of these
academic matters at the expense of further delays in issuance of the remedy
called for by the record made on the instant complaint.
4 There is no merit in Respondent 's contention that this letter was not a
proper demand for a resumption of negotiations.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
Lending some support to Respondent's position that the
withdrawal of recognition in this case was perfectly
legitimate, is the Board's decision in Telautograph Corpora-
tion,5 which, in effect, held that a decertification petition,
supported by an adequate showing of interest, which raises
a real question concerning representations may alone
provide a defense to an employer 's refusal to participate in
further contract negotiations . However , in National Cash
Register Company,7 the Board distinguished Telautograph,
supra, by holding that a decertification petition furnished
no defense to a refusal to bargain where the employer had
inspired the filing of such a petition. A parallel to that
proposition is the long-established Board policy which
precludes an employer from asserting a good-faith doubt
of majority where the employer has engaged in misconduct
tending to dissipate the union 's majority and thereby to
induce said loss of majority .8
Turning to the evidence adduced in support of the
General Counsel's cause , it is conceded fact on this record
that Respondent ( 1) initially furnished employees informa-
tion as to how the decertification process could be invoked,
(2) obtained and supplied the decertification petition forms
for employees, (3) supplied employees information re-
quired by the petition forms, and (4) advised employees as
to the open period dates within which a timely petition
could be filed. The General Counsel is not off the mark in
observing that virtually every act, other than the mailing of
the final petition, was the work of the Respondent .9
Nonetheless , Respondent argues that there was nothing
illegal in this course of conduct since , in each instance, the
assistance provided was on request of employees. Respon-
dent also observes that it never suggested to employess that
they get rid of the Union, and, further, that Respondent,
when responsive to employee requests, repeatedly cau-
tioned that it could not help the employees in any way.
The only witnesses called to relate the circumstances
surrounding the Respondent 's involvement with the
decertification activity were Bauman , Reiser,10 and em-
ployee Dickerson, a cosigner of the decertification petition.
Their accounts are in essential respects set forth below.
Those of Bauman and Reiser show a substantial degree of
assistance by the employer, which they attempt to excuse
as having been in each instance provoked by spontaneous
employee inquiry. As will be seen , infra, I do not believe
this mitigating testimony.
On May 10, 1972, when Respondent entered the
settlement agreement , there were four drivers in Respon-
5 199 NLRB 892
9 The fact that a decertification petition has been administratively
dismissed because of a pending 8(a)(5) complaint does not vitiate the
defense raised here . The administrative determination that no question
concerning representation exists is not conclusive, and is disregarded where
through litigation of the complaint no possible connection between
employer misconduct and employee decertification activity is shown. See
Deblin Manufacturing Corporation, 208 NLRB No. 24.
r 201 NLRB 1034.
8-Celanese Corporation of America, 95 NLRB 664, 673 ; Plastiline, Inc.,
190 NLRB 365, 374; General Motors Acceptance Corporation, 196 NLRB
137, and cases cited at In . 8 thereof.
9 1 am not entirely certain as to the reliability of the testimony of James
Dickerson , the principal protagonist of decertification, to the effect that he
mailed said petition without aid of Respondent. It is noted that Dickerson
dent's employ. Davis and Voss worked days. And
Dickerson, who had just been hired on May 7, 1972, and
Dykstra worked nights. The day drivers were known to be
union, and the night drivers were believed by Respondent
to be nonunion.
According to Bauman, who was called as a 43 (b) witness
by the General Counsel, on the evening of May 10,
Bauman, having entered the settlement agreement that
very day, asked his attorney for information as to what
employees could do if they didn 't like the union contract.
Bauman testified that, when accorded legal advice as to the
possibility of a decertification petition, he jotted it down
because , as he testified, ". . . I wanted to give a full
account to the employees as I have the past 18 years, as
long as I've been in personnel management. " The next day,
Bauman called a meeting limited to Dykstra and Dicker-
son, the night drivers , who were regarded by Respondent
as nonunion . Dykstra and Dickerson did not attend the
unfair labor practice hearing which culminated in the
contract with the Union , and, according to Bauman, both
had requested information as to what had transpired, from
Bob Reiser, the dispatcher." Bauman told them they
would be under a union contract which would run until
December 31, 1972 . According to Bauman , when one of
the drivers asked what they could do if they weren't happy
with the Union,12 Bauman relayed the information he had
obtained from his attorney the previous night concerning
the decertification process, with the admonition that they
would have to contact the NLRB or get their own attorney
to take such action.
It is conceded on the face of the testimony of Bauman
and Reiser that , if this latter admonition was in fact
expressed, the Company did not stand behind it. Following
the May 11 meeting, and beginning sometime in August,
Dykstra and Dickerson repeatedly requested of Reiser that
the Company obtain decertification forms for them. Reiser
on these occasions told the men that he would have to
check with Bauman . When Reiser did so , Bauman told him
that he would have to check with Respondent's attorney.
On the first occasion, the attorney advised Bauman that
the men would have to get their own lawyer, and this was
relayed to Dickerson and Dykstra. Neither was in favor of
getting a lawyer because of the expense involved.
Thereafter , the two drivers again requested that Reiser
obtain the forms . He again told them that he would check
with Bauman, which he did, and was again informed by
Bauman that he would check with the Company's attorney.
Thereafter Bauman advised that they could find out
"where to get . . . the application or whatever ...," but
testified that before he obtained the petition forms he requested the
Company to provide them because he was unable to obtain information as
to the address of the NLRB Regional Office . The Company's subsequent
cooperation with Dickerson would hardly have encouraged him to act on
his own in taking the steps necessary to the mailing of the petition.
iO Robert Reiser is the Respondent's dispatcher and personnel manager
and an admitted agent.
ii Reiser testified in corroboration of Bauman , indicating that Dykstra
had been inquiring as to what was happening, and the main purpose of the
meeting was to explain to Dickerson and Dykstra what had transpired at
the hearing.
i2 Reiser also corroborated Bauman in this respect , stating that one of
the drivers , whose identity he could not recall , raised the question of how
they could ". . . get rid of the union or something to that effect."
CONDON TRANSPORT, INC. 301
Bauman emphasized that the Company would ".. .
definitely not assist them in any way." When Reiser
reported back to Dickerson and Dykstra, they again
requested that the Company obtain the forms. At this
point, Reiser told Bauman to get the form.
Reiser further testified that in late September the
decertification petition form was furnished by the Compa-
ny's attorney.13 A few days after its receipt, the form was
given to Dickerson. Dickerson, after receiving the form,
went to Reiser, seeking assistance with respect to certain
parts of the petition he did not understand. Reiser did not
immediately provide the information. According to his
testimony, he again indicated he would have to check with
Bauman , who again indicated he would have to check with
Respondent's attorney. Thereafter, the information was
provided to Dickerson.14 Subsequently, Dickerson had
another problem with the mechanics of signing the
petition . He again sought Reiser's assistance . Reiser
testified that he again would contact Bauman, who again
indicated he would check with the Company's attorney.
Bauman thereafter provided the information for relay to
Dickerson, again admonishing Reiser "not to assist"
Dickerson.
Bauman also testified that in late September or October
Dickerson had inquired as to when the petition had to be
filed. Bauman called his attorney, and obtained the open
period dates from him, which Bauman relayed to Reiser
with the understanding that Reiser would so advise
Dickerson.
In addition to the testimony of Reiser and Bauman,
James Dickerson, testified that he was initially employed
by Respondent on May 7, 1972. Dickerson, who impressed
me while testifying, as highly concerned with the possibility
that he might give testimony prejudicial to Respondent and
fearful of that possibility, did relate credibly as to certain
matters contrary to Respondent's interest. Thus, he did
indicate that during his prehire interview, shortly before
the May 11 meeting, Bauman asked him what he thought
of unions. Dickerson replied that he "didn't think . . . [he]
... was interested in the union." Bauman also told him
that the two day drivers were union and the night driver
was nonunion.
Dickerson also credibly testified to a conversation with
13 It was stipulated that September 14, 1972, was Dykstra's last day of
employment . From that point until October 20, 1972, the only drivers
employed by Respondent were Davis , Voss, and Dickerson.
14 The RD petition is in evidence as G.C. Exh. 8. Reiser conceded that
he obtained the information used in answering items, 5, 6-A, 6-B, 10, and
I 1-B therein . Reiser provided the information on a separate piece of paper
on advise of Respondent's counsel. At least part of the information
furnished Dickerson was supplied by that attorney.
15 Birkholz subsequently joined Dickerson as a cosponsor of the petition.
It is apparent from Dickerson 's account of the information supplied him by
the Company that Respondent was of the view that the RD petition
required signatures of two drivers. I do believe that Dickerson was
interrogated by Bauman as to Birkholz ' union attitudes . I find incredible
Bauman's testimony that on an earlier date Birkholz had come into his
office and officiously bared his antiunion sentiments . As will subsequently
be indicated , I was totally unimpressed with Bauman 's demeanor, and it is
my belief that Dickerson would not have testified as to this instance of
interrogation had it not occurred . I also believe that at the time Bauman was
highly interested in Birkholz ' attitudes because of concern that two
signatures were needed on the petition.
16 Dykstra testified at a resumption of the hearing in this case , pursuant
to the remand order of the Board , requiring me to permit the General
Bauman relative to another driver, James Birkholz, who
commenced working for the Respondent as a night driver
on October 20, 1972, as Dykstra' s replacement. Bauman
asked Dickerson on or about that date if he knew what Mr.
Birkholz' feelings were towards the Union.15 Dickerson
responded that, as far as he knew, Birkholz would just as
soon not have the Union. Birkholz did ultimately sign the
petition a few days prior to its filing.
Analysis of whether or not the Company was unlawfully
involved in the decertification activity must start with the
May meeting. It is my conclusion, from an assessment of
the testimony of Dickerson, Bauman, and Reiser, that
Bauman the previous evening had obtained the legal
advice relative to decertification on his own, and without a
reasonable basis for believing that employees would raise
this issue. Apart from the testimony of Bauman and Reiser,
there is no evidence that Dykstra or Dickerson were so
openly antiunion that, without knowing whether or not the
settlement agreement enhanced their conditions of work,
they would have expressed anything to Reiser or Bauman
which would lead the latter to believe that they were intent
on getting rid of the Union from the very outset of the
bargaining relationship.16 I am satisfied that Bauman on
May 10 obtained the decertification information with the
plain intention of implanting the decertification idea
among the night drivers, in order eventually to evade the
bargaining obligation that he had agreed to assume that
same day.
Bauman was hardly an impressive witness. His testimony
was shifting, contradictory, and marked by frequent
insertions of either a lack of knowledge as to the law or a
lack of recollection which impressed me as Bauman's
chosen means of excusing improprieties or foreclosing
effective scrutiny of the Company's defense. He impressed
me as a schemer, who, while willing to give lip service to
the interests and rights of his employees, was intent on
retaining absolute control over Respondent's operations,
and willing to engage in whatever manipulation of
employees, the Union, and the law that he deemed
necessary to meet these ends. His own testimony and that
of Reiser 17 plainly evidences Bauman's practice of making
statements to employees to the effect that he would abide
by the law, while turning around and doing the exact
Counsel to litigate as background the matters raised by the settled
complaint in Case 30-CA- 1862 . Dykstra was not examined as to the events
preceding or what had transpired at the May I I meeting. He did testify that,
at the time of his employment with Respondent , he was a member of a sister
local to the Charging Party. It was not my impression that Dykstra was as
militantly antiunion as Bauman and Reiser would have me believe.
Dickerson testified that in conversations with Dykstra prior to Dickerson's
hire Dykstra never commented on his feelings towards unions, and
Dickerson had no idea of Dykstra 's attitudes in this regard . This, despite the
fact that Dykstra had recruited Dickerson for employment with the
Company and had taken him on student runs . Dickerson further testified
that he had no discussions with Dykstra about the Union until after the
hearing.
As for Dickerson's sentiments, he testified that at the time of his hire on
May 7, just 2 days prior to the opening of the hearing in 30-CA- 1862, he
did not know of the organization drive by the Charging Union . Although
Dickerson , on questioning by Bauman , had indicated that he was not
"interested" in unions , there is no evidence that he said anything to Bauman
that would lead Bauman to believe that Dickerson would subsequently raise
any question as to how to get rid of the Union . Indeed, it is the sense of
Dickerson 's testimony that he did not do so at the May 11 meeting.
17 I was also unimpressed with the corroborative testimony of Reiser,
(Continued)
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opposite . Furthermore , there is no question in my mind
that Bauman , though professing to adopt a stance of
neutrality and disinterest , would long ago have suppressed
the interests of nonunion employees had the Union offered
a deal to his suiting.
I am satisfied and find that not only was the decertifica-
tion possibility conceived by Bauman, but that he
implanted that idea without specific request for such
information by either Dickerson or Dykstra. Aside from
my impression as to the means by which Bauman operated,
and the fact that I do not believe either his exculpating
testimony or that of Reiser, I believe it entirely implausible
that as of May 10, 1972, Dykstra or Dickerson, without
prodding from management, would have inquired as to the
means of getting rid of the Union.18 The suspicion
generated by the timing of Bauman 's having obtained the
information on decertification is enforced by his passing
on this information at a meeting of employees who would
be most sympathetic . I note that I am satisfied that
Bauman was mindful of the potential for rivalry between
the day and night drivers, based upon the more desirable
nature of day work. This factor would encourage the night
drivers to nurture the good graces of the Company. The
exclusion of Davis and Voss from that meeting plainly
reveals that Bauman was not acting out of complete
objectivity and, in my opinion, was calculated to impress
Dickerson and Dykstra with the implicit assurances that
the Company fostered and would support the decertifica-
tion effort . As events subsequently unfolded, this proved to
have been the case. Neither Dykstra nor Dickerson at any
time saw the need to seek assistance from independent
sources. If company spokesmen had advised them that it
would not lend assistance and that they should get
independent counsel, neither Dykstra nor Dickerson took
these words seriously. At every turn, they went to the
Company for whatever information, data, or documents
they needed to perfect the filing of a timely petition. As I
am certain they would anticipate , in each instance, the
Company was responsive . 19 In these circumstances, it is
immaterial that the Respondent did not expressly advise
them to get rid of the Union, for such a desire was implicit
from the comprehensive assistance afforded them.
Based upon the foregoing , I find that Respondent
violated Section 8(a)(1) by its overall assistance to and
support of the decertification activity.20 I would further
note that even were I to accept the entirety of the
whose testimony amounted to a "pat" outline of Respondent's legal defense
In observing Reiser on the stand , it was my impression that he was intent on
relaying testimony which would absolve the Company of wrongdoing,
rather than the facts as they occurred.
is I note that portions of Dickerson 's testimony on cross-examination by
Respondent's counsel does suggest that the decertification issue was raised
by either he or Dykstra . Although the entirety of Dickerson 's testimony is
somewhat vague on this point , other points in his testimony indicate that his
response on cross -examination may well have been the byproduct of leading
questions by Respondent 's counsel . In the total circumstances , I regard
Dickerson 's testimony on this point as entitled to no weight
ie In contrast to his cooperative efforts with respect to the decertification
activity , Bauman 's dealings with the Union may hardly be viewed as
receptive to the principles of collective bargaining . He first delayed
execution of the agreement required by the settlement until September 12,
1972, and did so on highly technical , and legally erroneous , grounds.
Secondly, he declined to acknowledge or respond to the Union's request of
October 10, 1972, for a meeting date to negotiate a new contract, even
testimony of Bauman and Reiser my conclusion in this
regard would not be altered. It may well be that the law
permits an employer, on request of employees, to provide
on an isolated and limited basis certain information
otherwise unavailable to them, or beyond their personal
knowledge 21 However , such privilege may not be con-
strued as a license for an employer to use employee
requests as a pretext for enmeshing itself in virtually every
stage of the decertification process . The degree of involve-
ment here , even on the testimony of Respondent 's agents,
was such as to make the Respondent a full partner in the
effort to oust the Union, and would create an atmosphere
whereby employees, despite indifference or only marginal
opposition to the Union, would be encouraged to support
management's implicit intention in this regard . For these
reasons , I would find the 8 (a)(l) violation even were I to
believe that Bauman, at the May 11 meeting, raised the
decertification issue only in response to specific inquiry by
an employee.
Having so found, it follows that Respondent is not free
to invoke the decertification petition as a defense to its
refusal to bargain with the Union beginning on October 10,
1972.22 It is my further finding that , as Respondent's
unlawful participation in the decertification activity tended
to dissipate and induce the Union's loss of majority, the
Respondent could not assert a good-faith doubt of a
majority in defense of its aforedescribed refusal to
bargain.23 Accordingly, I find that Respondent since
October 12, 1972, violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with the Union in the historic
collective-bargaining unit.
Further, there being no dispute that Respondent on
February 1, 1972, without bargaining or notification to the
Union, established a private insurance plan and suspended
contributions to the previously negotiated health and
welfare plans, I find that, by such unilateral action,
Respondent further violated Section 8(a)(5) and ( 1) of the
Act.
CONCLUSIONS OF LAW
1. Condon Transport, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. General Teamsters, Warehouse and Dairy Employ-
ees Union Local 126, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
though no arguable bar existed to recognition until some 3 weeks thereafter.
2O I also find that Respondent violated Sec . 8(axl) by Bauman 's coercive
interrogation of Dickerson as to Birkholz' union sentiments.
21 See, e.g., North American Aviation, 163 NLRB 863; Keno-TV-Mission,
163 NLRB 1005; Consolidated Rebuilders, Inc., 171 NLRB 1415. A fourth
case cited by Respondent , Clark Control Division ofA 0 Smith Corp., 166
NLRB 266, is distinguishable as it does not involve employer assistance in
the context of an existing bargaining relationship, but involves an initial
organization campaign , in the course of which, certain employees having
signed authorization cards, sought information as to how they could be
revoked . Considering the nature of authorization cards and conditions
prevailing during an organization campaign, employers are afforded
considerably more latitude in furnishing assistance to employees in such
circumstances . In any event , the degree of assistance involved there is
significantly more limited than that of Respondent in this case.
22 National Cash Register Company, supra.
23 Cases cited at In . 8, supra.
CONDON TRANSPORT, INC. 303
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees who perform semidriving services,
excluding office -clerical employees, salesmen, guards, and
supervisors as defined in the Act, constitute a unit
appropriate for collective bargaining within the meaning of
Section 9(b) of the Act.
4. Respondent, by implicitly suggesting to employees
that they file a decertification petition with the Board, by
obtaining the decertification forms for employees, by
obtaining and providing information for employees re-
quired to perfect filing of the decertification petition, and
by interrogating employees regarding union sympathies of
other employees, violated Section 8(a)(1) of the Act.
5. Respondent, by refusing to bargain since October 12,
1972, with the Union as exclusive bargaining representative
of employees in the appropriate bargaining unit set forth
above, and by unilaterally establishing a private insurance
plan and eliminating other employee pension and health
and welfare benefits, has violated Section 8(a)(5) and (1) of
the Act.
6. The aforesaid unfair labor practices constitute unfair
labor practices which affect commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
violations of Section 8(a)(5) and (1) of the Act, it shall be
recommended that Respondent cease and desist therefrom
and that it take certain affirmative action which is
necessary to effectuate the policies of the Act.
Respondent contends that, despite any refusal to
bargain , a recommended order that it bargain with the
Union would in this case be inappropriate. In this regard
Respondent relies upon Allou Distributors, Inc., 201 NLRB
47, and Laura Modes Company, 144 NLRB 1592, where
such a remedy was withheld against a background of union
violence and intimidation calculated to insure employee
adherence to a union. In my opinion the principles of the
cited cases are inapplicable here. The only misconduct
attributable to the charging Union in this case relates to a
prior charge in Case 30-CB-580. A complaint issued on
that charge alleging that, on or about November 20, 1972,
the Union violated Section 8(b)(1)(a) and (2) of the Act by
threatening to cause the discharges of Birkholz and
Dickerson, because of their failure to become members of
the Union when not obligated to do so. That complaint
was disposed of by the Regional Office through execution
of an informal settlement agreement, with a nonadmission
clause . As to the issue underlying that dispute, I am
satisfied that it involved a good-faith attempt by the Union
to enforce the union-security clause of the subsisting
collective-bargaining agreement, with the lawfulness of
that action turning upon whether or not the laws of the
State of Wisconsin precluded enforcement of such provi-
sions at that time . The conduct in Case 30-CB-580, at
worst, was limited to an effort by the Union to enforce
contractual membership obligations, was not otherwise
designed to influence employee attitudes towards the
Union, and was an isolated, violence-free incident which
hardly suffices to bear upon the appropriateness of the
conventional Board remedy in this type of case. See, e.g.,
World Carpets of New York, Inc., 188 NLRB 122, fn. 5; and
New Fairview Hall Convalescent Home, 206 NLRB No. 108.
Accordingly, I shall order Respondent to bargain upon
request with the Union, and to embody any agreement
reached in a written contract.
To redress the unilateral termination of employee
benefits under the joint management-Teamsters pension,
health and welfare programs, I shall recommend that
Respondent restore such benefit programs and make
employees whole for any losses they may have sustained by
virtue of the lapse in coverage resulting from Respondent's
unlawful refusal to bargain, including the payment of
unpaid contributions to said plans to the extent necessary
to redress any prejudice to employees with respect to
conditions of eligibility, service credits, or other terms
which employees would have enjoyed had their participa-
tion been continuous.24
The Charging Party requests certain extraordinary
remedies, including (1) reinstitution of the expired collec-
tive-bargaining agreement until an impasse is reached
pursuant to the bargaining order; (2) reimbursement of the
Union for loss of any dues not checked off; and (3)
reimbursement of the Board and the Union for the cost of
investigation, preparation, presentation, conducting of the
case, reasonable attorney's fees, salaries , witness fees,
transcript and records, printing costs, travel expenses, per
diem allowances, and any other reasonable costs and
expenses incurred. In my opinion, such relief is unwarrant-
ed in the circumstances of this case. As to (1) and (2)
above, existing law protects employees against unilateral
changes with respect to contractual terms constituting
wages, hours, and terms and conditions of employment as
defined in the Act, and insofar as the contract includes
matters not fitting that definition, here again, I see no
reason why the remedial processes of the Board should be
substituted for collective bargaining. As to (3) above, the
Charging Party cites Tiidee Products, Inc., 194 NLRB 1234,
where the Board, following a remand from the United
States Court of Appeals for the District of Columbia,25
afforded such relief because the respondent's action in that
case had produced frivilous, unwarranted litigation. The
Charging Party also cites Food Store Employees Local 347
[Heck's, Inc.] v. N.L.R.B., 476 F.2d 546 (C.A.D.C.), cert.
denied 414 U.S. 1069 (1973), where the circuit court
enlarged the Board's remedy to include reimbursement for
expenses similar to that requested here where the employer
had persisted in an unlawful pattern of resisting union
organization. With respect to the Heck's case, it is noted
that the Board did not accept the court's decision, and
instead sought certiorari, which was denied by the Supreme
Court. Until a conclusive determination by the Supreme
Court on this major issue affecting the remedial discretion
24 This provision is not to be construed as requiring the Respondent to
make contributions in amounts exceeding preexisting contribution levels
Restoration of the status quo ante may be accomplished without imposition
of new terms and conditions of employment at the expense of collective
bargaining
25 International Union of Electrical, Radio and Machine Workers,
AFL-CIO v. N.L.R B, 426 F.2d 1243 (C A.D.C.), cert. denied 400 U.S. 950
(1970).
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Board, there will be no clear guidelines for insure that said notices are not altered, defaced, or covered
determining the appropriateness of such relief in any given by any other material.
case. However, while it is my opinion that the violations (e) Notify the Regional Director for Region 30, in
here add up to a serious and flagrant breach of statutory writing, within 20 days from the date of this Order, what
obligations, I do not see this case as sufficiently out of the steps the Respondent has taken to comply herewith.
mainstream of cases in which Board processes are invoked
and where no such relief has been granted, to warrant
imposition of such extraordinary remedies. Accordingly, I
do not deem it appropriate to grant the Charging Party's
request in this case.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER26
Respondent, Condon Transport, Inc., Ripon, Wisconsin,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating, implicitly suggesting to
employees that they file a decertification petition, obtain-
ing decertification petition forms for employees, obtaining
for and providing information to employees required to
perfect filing of such petitions, or in any other manner
assisting employees in decertification activity.
(b) Refusing to bargain collectively with the Union as
exclusive bargaining representative of all employees in the
appropriate bargaining unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment.
(c) Unilaterally changing the terms and conditions of
employment of employees in the appropriate collective-
bargaining unit without prior notification, consultation,
and bargaining in good faith with the Union as their
exclusive representative.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Upon request, bargain collectively with the Union as
the exclusive representative of employees in the appropri-
ate unit and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Upon request, rescind any unilateral changes in the
terms of employment effectuated by the Respondent after
January 1, 1973.
(c) Make whole employees in the bargaining unit for
monetary and other losses incurred as a result of the
unlawful unilateral changes in terms and cond-ons of
employment, in the manner set forth in the portion of this
Decision entitled "The Remedy."
(d) Post in conspicuous places at its Ripon, Wisconsin,
facility, including all places where notices to employees are
customarily posted, copies of the attached notice marked
"Appendix."27 Copies of the notice, on forms provided by
the Regional Director for Region 30, shall, after being duly
signed by an authorized representative of the Respondent,
be posted by it, immediately upon receipt thereof and
maintained for at least 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to
26 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
27 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees
concerning union activity or in any manner assist them
in efforts to decertify General Teamsters, Warehouse
and Dairy Employees Union Local 126, affiliated with
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
WE WILL NOT change any existing terms and
conditions of employment negotiated by the above
Union, without first notifying, consulting, and bargain-
ing with the Union as exclusive representative of
employees in the appropriate collective-bargaining
unit, consisting of :
All employees who perform semidriving services,
excluding office clerical employees, salesmen,
guards, and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations,
to bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
WE WILL, upon request, recognize and bargain with
the above named Union as the exclusive representative
of all our employees in the above bargaining unit with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment and, if
an understanding is reached, embody such understand-
ing in a signed agreement.
WE WILL make whole our employees for any losses
sustained by our unilateral cancellation of the pension,
health, and welfare programs previously negotiated by
the Union in the manner set forth in the section entitled
"The Remedy" in the Decision of the Administrative
Law Judge.
CONDON TRANSPORT, INC.
(Employer)
CONDON TRANSPORT, INC. 305
Dated By from the date of posting and must not be altered, defaced,
(Representative) (Title) or covered by any other material.
Any questions concerning this notice or compliance with
This is an official notice and must not be defaced by its provisions may be directed to the Board's Office,
anyone . Commerce Building , Second Floor , 744 North Fourth
This notice must remain posted for 60 consecutive days Street, Milwaukee, Wisconsin 53203, Telephone
414-224-3861.