Crown Central Petroleum Corp.

National Labor Relations Board - Board Decisions

Dec 13, 1977

233 N.L.R.B. 1207 (N.L.R.B. 1977)

CROWN CENTRAL PETROLEUM CORP.
Crown Central Petroleum Corp. and Local 917,
International Brotherhood of Teamsters, Chauff-
eurs, Warehousemen and Helpers of America.
Case 29-CA-5245
December 13, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On August 18, 1977, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed cross-exceptions, a brief in support thereof,
and an answering brief to the General Counsel's
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 record and the
attached Decision1 in light of the exceptions2 and
briefs and has decided to affirm the rulings, find-
ings,3 and conclusions of the Administrative Law
Judge and to adopt his recommended 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 the complaint be, and it hereby is,
dismissed in its entirety.
I Under sec. III, A, 2, par. 3, of the Decision, the Administrative Law
Judge credited Metzler's denial that there was any mention of a wage survey
during the August 12 bargaining session. The Administrative Law Judge
concluded, apparently through inadvertence, however, "that Bove did ask to
see the survey at this meeting." It is clear from the Administrative Law
Judge's credibility resolutions that he intended to conclude that "Bove did
not ask to see the survey at this meeting." (Emphasis supplied.)
2 Respondent has excepted to the failure of the Administrative Law
Judge to dismiss the complaint on the basis that since the General Counsel
failed to establish that the Union ever represented a majority of Respon-
dent's employees there was no bargaining obligation on Respondent's part.
We find no merit in this contention. As Respondent voluntarily recognized
the Union pursuant to a settlement agreement executed on January 13,
1976, it is precluded by the proviso to Sec. 10(b) of the Act from challenging
the Union's initial majority at this time. Barrington Plaza and Tragniew, Inc.,
185 NLRB 962, 964 (1970), enforcement denied on other grounds sub nomn
N.L.R.B. v. Tragniew, Inc., and Consolidated Hotels of California, 470 F.2d
669 (C.A. 9, 1972). Inasmuch as the Union's present majority status is
presumed from the collective-bargaining agreement, General Counsel has
met his burden. Respondent was, of course, free to challenge the Union's
present majority status by relevant objective considerations. This it has
failed to do.
3 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule 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.
233 NLRB No. 180
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: On
October 14, 1976, the charge in this case was filed by Local
917, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter
referred to as the Union. On December 30, 1976, the
complaint issued alleging that Respondent violated Section
8(a)(1) and (5) of the Act by refusing to furnish the Union
with information relating to a wage survey and by
negotiating with the Union in bad faith and without any
intention to enter into a collective-bargaining agreement.
In its answer Respondent denies the commission of any
unfair labor practices.
A hearing was held before me in Brooklyn, New York,
on March 30, 1977. At the conclusion of the hearing
counsel for the General Counsel argued orally on the
record. Respondent has filed a brief.
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent's principal place of business is in Baltimore,
Maryland. It operates facilities in many States, including a
gasoline station located on Hempstead Turnpike in
Plainedge, New York, the facility involved herein. During a
representative 12-month period gross revenues at that
station exceeded $500,000, and Respondent had direct
inflow in excess of $50,000. I find that Respondent is an
employer engaged in commerce within the meaning of the
Act and that it will effectuate the policies of the Act to
assert jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
On June 11, 1975, the Union filed a representation
petition in Case 29-RC-3051 seeking an election in a unit
of gasoline service station attendants located at two service
stations operated by Respondent in Plainedge. Thereafter
the parties entered into a stipulation for certification upon
consent election providing for a secret-ballot election in a
unit of all full-time and regular part-time service station
employees of Respondent at its Hempstead Turnpike
station, excluding supervisors and guards as defined in the
Act. In the election on August 14, 1975, the vote was seven
to one against representation by the Union, with one
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
challenged ballot. The Union filed timely objections to the
election and unfair labor practice charges in Case 29-CA-
4559.
On November 26, 1975, the Regional Director issued a
complaint in Case 29-CA-4559 alleging that Respondent
had interrogated its employees, threatened them with
discharge and other reprisals, and promised and granted
wage increases and improvements in other benefits and
working conditions to induce them not to support the
Union. The complaint also alleged that after the charge
was filed Respondent withdrew the wage increases because
of the filing of the charge, assigned an employee to more
arduous tasks, and then discharged him because of his
union activities. The complaint further alleged that the
Union had requested recognition at a time when it
represented a majority of the employees in the appropriate
unit and that Respondent had refused to bargain with the
Union in violation of Section 8(a)(5) of the Act.
On December 3, 1975, the Regional Director issued his
Report on Objections, Order Consolidating Cases and
Notice of Hearing in which he found that one of the
Union's objections to the election was related to allegations
of the complaint and could best be resolved by a
consolidated hearing.
On January 13, 1976, after Respondent had filed an
answer denying the commission of any unfair labor
practices, the parties entered into a settlement agreement in
Case 29-CA-4559 and the Union withdrew its petition in
Case 29-RC-3051. The settlement agreement provided,
among other things, that Respondent would recognize and
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit,
would cease and desist from the commission of such acts as
had been alleged in the complaint to be unfair labor
practices, and would provide backpay but not reinstate-
ment for the discharged employee. The agreement provid-
ed also that Respondent was not to be deemed as admitting
that it had violated the Act.'
On March 2, 1976, Respondent and the Union entered
into a collective-bargaining agreement after two or three
negotiating sessions. The agreement was effective retroac-
tively to September 4, 1975, and was for a 1-year term, with
provision for automatic renewal in the absence of a 60-day
notice to terminate or modify the contract. The termina-
tion clause provided that "During the period of any
negotiations for renewal of this Agreement, extending
beyond the original or any extended or renewed term, and
until one (I) calendar week after such negotiations shall be
declared terminated by either party in writing delivered to
the other party, the terms and provisions of this Agreement
shall continue in full force and effect."
The agreement defined a part-time employee covered by
the contract as one regularly scheduled to work 24 hours or
i As background in this proceeding, the General Counsel presented
uncontradicted testimony by former employees Gragniello and Zafonte
that, before the election, Station Manager Gary Engle told employees that
they would be fired if they signed union authorization cards, asked
employees if they had signed cards, told Gragniello that if he kept pushing
the Union he would be fired, gave Zafonte two raises in quick succession,
asked Zafonte how he was going to vote, and, when Zafonte said that he was
undecided, responded, "I gave you two pay raises and you're still
undecided."
2 All dates which appear hereafter are in 1976, unless otherwise
indicated.
more but less than 40 hours a week. This definition was
taken from the Union's original proposal.
On April 12, 1976, the Regional Director sent Respon-
dent a letter indicating that satisfactory evidence had been
received of compliance with the settlement agreement, that
Case 29-CA-4559 was therefore closed, and that it would
remain closed conditioned upon continued compliance
with the settlement agreement.
2. The 1976 negotiations
On July i, 1976,2 Union Business Agent Andrew Bove
gave Respondent written notice that the Union desired to
terminate the agreement on September 3, 1977, its
expiration date, and requested a date to begin negotiations
for a new agreement. Upon receipt of Bove's letter, Philip
Metzler, Respondent's assistant director of personnel
relations, arranged to meet with Bove on August 12. On
that day they met in Metzler's motel room on Long Island.
At this meeting Bove and Metzler explored what the
Union sought in a new agreement. Bove had not yet drawn
up specific proposals but indicated the Union's position
with respect to several issues. Bove said that the Union
wanted a substantial wage increase, a reduction from 24 to
16 in the minimum number of hours required to meet the
definition of a part-time employee covered by the contract,
contributions by Respondent to the Union's welfare and
promotion funds, and a change in contract language to
permit a union representative to enter the station premises
with permission of the station manager rather than the
district manager as then provided. 3 Metzler indicated that
Respondent wanted more flexibility in scheduling shifts
than provided under the existing contract and offered in
return I week's notice to employees of such changes. Each
of these issues was discussed, but no resolutions were
reached.
According to Bove, during the discussion of wages,
Metzler said he had taken a wage survey of area gas
stations from which he concluded that Respondent's wages
were in line with those of others. Bove testified that he
asked to see the survey but that it was never shown to him.
Metzler denied that there was any mention of a wage
survey in this meeting and testified that as of that time he
had not yet conducted one. For reasons set forth below, I
have credited Metzler and find that Bove did ask to see the
survey at this meeting.
At the conclusion of the meeting, Metzler asked Bove to
bring written proposals to their next meeting, because he
preferred to negotiate from them, and Bove agreed to do
so.
4
On August 18, Metzler surveyed wages at company
operated service stations in the New York metropolitan
area by telephoning representatives of other companies
3 During this meeting Bove also raised a question as to Respondent's
obligation under the existing agreement to hire a full-time employee to
replace an employee who had been promoted out of the unit. At this time
there were three or four employees covered by the contract.
4 My findings generally are based on a composite of the testimony of
Bove and Metzler where their testimony is not in conflict. I have not found
it necessary to treat all conflicts as to detail for purposes of this decision, but
where material conflicts exist, I have credited Metzler.
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CROWN CENTRAL PETROLEUM CORP.
that marketed in the area. From his notes his secretary
prepared a typed summary which was dated August 18.
Thereafter, on August 25, Bove and Metzler met again
pursuant to arrangements again made by Metzler. Respon-
dent's district sales supervisor, O'Neill, accompanied
Metzler to this meeting which was held in the lobby of the
International Hotel on Long Island and lasted about an
hour and a half.
At the outset of the meeting Bove handed Metzler a list
of 19 union contract proposals. Metzler looked it over and
commented that he could see that there were some
Respondent would have to reject but that he would like to
cover the items one at a time and give his reasons. The
parties proceeded to discuss each of the proposals although
not necessarily in the order in which they appeared. The
first proposal as clarified orally by Bove was to reduce the
number of hours required for coverage under the contract
from 24 to 16 hours a week. Metzler told Bove that the
part-timers were a high turnover group, that to reduce the
requirement might give both of them grief, and that
Respondent was satisfied with the 24-hour minimum which
had been in the Union's proposal in the first negotiations.
However, Metzler also told Bove that he would get back to
him on this proposal.
The second proposal was to reduce the trial period for
new employees from 90 to 30 days. Bove argued for the
change claiming that it was inequitable that an employee
could be required to become a member of the Union after
30 days but had to continue on probation for 90 days.
Metzler replied that in his experience he had seen many
contracts with similar requirements, and that he saw no
disparity or problem with it, but gave no final answer to
this proposal.
The third proposal called for overtime pay after 8 hours a
day or 40 hours a week and for assignment of overtime
work by seniority. Metzler told Bove that the contract
already provided that all hours over 40 a week were
overtime and stated that given the nature of the employ-
ment at the station he believed it was sufficient. With
respect to the assignment of overtime, discussion was
inconclusive, and Metzler said he would look into the
situation.
The fourth proposal was that 3 hours' notice to
employees be required for assignment of overtime. Metzler
told Bove that there were a lot of times when employees
gave notice that they were not coming in only 15 or 20
minutes before the beginning of their shifts and that
Respondent had to keep someone to cover for them from
the preceding shift. Metzler told Bove that Respondent had
to reject that proposal because it would be left without
proper coverage. The next proposal was for I week's notice
of any change of shifts. Metzler had told Bove at the first
meeting that Respondent wanted more flexibility in
scheduling and the right to change shift starting times by
more than I hour, which the expiring contract permitted.
Metzler told Bove that if the Union would give Respondent
flexibility to change starting times it would agree to a I-
week notice requirement. Metzler gained the impression
s Both Bove and Metzler testified that they did not believe Metzler said
anything about the wage survey at this meeting and there is no testimony
that Bove requested it at this time.
that Bove was inclined to agree but later Bove corrected
him.
The Union's sixth proposal was for 11 paid holidays and
increased vacations with 2 weeks' vacation after I year and
a progressive scale up to 5 weeks after 10 years of service.
Metzler told Bove that he could see some minor adjustment
to add possibly I or 2 holidays to the 3 then provided but
that I 11 holidays was unsound. Metzler observed that
Bove's vacation proposal was more generous than what
Respondent had agreed to in its larger agreements but
added that he could see the possibility of some minor
changes in the vacation schedule.
The next proposal was for $15 weekly wage increases per
year over a 3-year contract term. Metzler told Bove that his
proposal was 12-1/2 cents an hour higher than the wage
increase Bove had proposed at their first meeting. Bove
defended his right to change his mind and stated that the
Union must get a good wage increase. Metzler stated that
he had information which showed that Respondent's
current wage rates were competitive. Bove replied that he
was aware of that but that he had to go back to the
employees with something.5
The next proposal was to include a transfer of operations
and other location clause in the contract. Metzler asked
Bove what the proposal meant and Bove said that what he
wanted was commonly referred to as a successor clause.
Metzler told Bove that Respondent did not have successor
clauses in any of its collective-bargaining agreements and
that its position was definitive that it could not agree to
that proposal.
The Union's ninth proposal was for 8 sickdays a year for
all employees. Metzler said he did not think the employees
needed them, but took no definitive position, and said he
would get back to Bove on it.
The Union's 10th proposal was for 8 personal days per
year. Metzler asked Bove if he was seeking 8 personal days
in addition to 8 sickdays. When Bove answered affirma-
tively, Metzler said that he thought they could work
something out to provide for excused unpaid absences with
no penalty but that he certainly could not agree to 8 paid
personal days off per year.
The next proposal was for "Health and Welfare Group
6." The written proposal indicated that its cost was $86 a
year, but Bove told Metzler that the cost was $86 a month
rather than a year, and Metzler commented that the
proposed plan must be the Union's most expensive plan.
Bove said that it was. Metzler told Bove that there was no
way that Respondent would contribute $86 a month to a
health and welfare plan for employees with a high turnover
rate.
The 12th proposal was for a contribution for pensions of
50 cents an hour for each employee. Metzler told Bove that
it was an expensive item for Respondent to provide for
employees whose average employment was of short
duration and that Respondent could not agree to it.
The next union proposal was for leave of absence. Bove
said he wanted provision for leaves of absence for a week
or two in case of emergencies. Metzler said that Respon-
dent could handle such leaves on an informal basis and
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he saw no need to put it in the contract. Bove said that
the employees had told him that it was hard to get leave
and he wanted something in the contract on it. Metzler said
he would consider it.
The next proposal was for a coffeebreak in the morning
and the afternoon. Metzler said that as it was employees
were free to go to a nearby facility to get food or coffee
when they wanted. Bove said that he wanted it in the
contract and Metzler said that Respondent would not
agree to it.
The 15th proposal was for washup time. Bove sought a
specific time before the end of each work shift to be set
aside for washup time. Metzler told Bove that the
attendants performed no maintenance work on cars and
did not get full of grease and oil like an attendant might at
a full service station. Metzler rejected the proposal.
The next proposal was for leave for jury duty. Metzler
told Bove that he thought it was unlikely that the
employees at the station would be called for jury duty,
because of their ages, but made no further response to the
proposal.
The next proposal was that a telephone be placed in
every island booth at the station. Bove stated that the
employees were unhappy because the manager locked the
phone up during the night shift and the lone night shift
attendant had no access to a phone in event of an
emergency. Metzler said that he had understood that there
had been a problem because some employees made
personal long distance calls on the company phone and
asked O'Neill if the problem had been rectified. O'Neill
said that he believed the phone was back in operation on
the night shift, and that the problem was resolved, but that
he would look into it further.
Proposal 18 was for bereavement leave of 3 days. Metzler
told Bove that if an employee needed leave Respondent
would give him time off. Bove said that the Union wanted
it in the contract. Metzler made no further response.
The final union proposal was for a 3-year contract term.
Metzler told Bove that Respondent still preferred for a
period of time to have a I-year agreement because it was in
a competitive wage situation and did not know what was
going to happen with other companies. He said that if
wages should mushroom all of a sudden it would be easier
to manage with a I-year agreement but that he would look
into it further.
Bove made an additional oral proposal for an unpaid
lunch period and said that he thought state law required it.
Metzler said that he was unfamiliar with such a law but
that he was informed that the employees were content
without a lunch period as an unpaid lunch period would
require employees to stay at the station an extra half hour
on each shift. Metzler again pointed out that employees
were free to get food and coffee and to eat lunch while on
the clock. Metzler said he would look into it.
After going through the union proposals, Bove and
Metzler discussed the number of full-time employees at the
station. Bove took the position that Respondent had cut
the number down to three and that there should be two on
the morning shift, two on the afternoon shift, and one on
the night shift for a total of five full-time employees.
Metzler replied that staffing and scheduling of personnel
was up to the station manager and that he did not see that
the contract limited how they were scheduled.
At the end of the meeting Metzler told Bove that he had
attempted to give him some definitive answers to a number
of the union proposals and that he would take the rest of
them with him, discuss them with management, and
arrange to meet Bove again to present a final offer.
Metzler also mentioned that they were about a week and
a half away from the end of the contract term. Bove replied
that there was no problem because the notification
procedure in the expiring contract would allow them to
continue beyond the expiration date. Metzler and Bove
discussed their respective commitments and the possibility
of meeting next during the week of September 13.
Sometime after this meeting Metzler contacted Bove and
arranged another meeting. Bove again represented the
Union, and Metzler attended for Respondent, accompa-
nied by John Conway, Respondent's regional manager.
The meeting lasted about 2 hours and took place at the rear
of the International Hotel lobby.
Metzler told Bove that he had considered his proposal
and had discussed it with management. He said that they
were dealing with a nonindustrial environment with
turnover and a different wage and benefit structure than
Respondent would consider in a refinery or a large
terminal operation. He told Bove that in that light
Respondent was willing to make several changes in the
expiring agreement to reach a new contract. Metzler said
that he felt Respondent's wage rates were competitive for
the area under the old agreement but that he recognized
that a contract is not usually reached without some
increase and that Respondent was willing to offer a 5-cent
hourly increase across the board. Metzler said that
Respondent would extend the vacation to 2 weeks'
vacation for employees with 2 years or more of service and
would add Independence Day as an additional holiday.
Metzler also said that he believed Respondent could
accede to a request of Bove that it schedule employees so
that they would have 2 consecutive days off and, after
confirming the possibility with Conway, offered to put that
in the contract. Metzler also proposed contract language to
give Respondent more than I hour of flexibility in
scheduling starting times with I week's notice of any
change to each affected employee. Metzler also proposed a
change in the last article of the contract, and said that this
was the extent of Respondent's proposal which it put
forward as a final offer to wrap up an agreement so that
they could go about their other business.
After Metzler finished his presentation of Respondent's
proposal, Bove asserted that it was ridiculous and said that
he could not go back to the employees with a nickel an
hour. Bove stated that as far as he was concerned
Respondent was bargaining in bad faith. Metzler told Bove
that Respondent was convinced that its wages were
competitive but was offering a moderate adjustment
anyway. Bove said that he had recently settled a couple of
contracts for more money at other stations and that he
could not go back with a nickel an hour. Bove also said
that Metzler had not responded to many of his proposals.
Metzler commented that it was a heavy list and Bove
replied that that was what Metzler had asked for. Metzler
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CROWN CENTRAL PETROLEUM CORP.
said that Respondent's proposal represented the extent of
its thinking at that time and that that was the final offer.
Bove said that he felt the Company's offer was unfair and
that the making of a final proposal without any prior offer
was not negotiating. Metzler replied that Respondent
wanted a contract, and said that he had gone as far as he
was prepared to go, but asked what the Union would settle
for as a basis for agreement and if Bove could give him
something that he could take back to his management as a
possible basis for agreement. Metzler said that he could
give Bove no guarantees but that he would like to know
what the Union's thinking was. Bove said that if Respon-
dent gave 10-cent hourly increases for each year of a 3-year
contract, and reduced the minimum number of hours for
part-time status from 24 hours to 16 hours, he thought that
would be the least the Union could agree to. Metzler told
Bove that he would try to get back to him the next day with
an answer. At the conclusion of the meeting, Metzler told
Bove that he was prepared to give him a written notice to
terminate the agreement to comply with the termination
clause of the contract. Bove replied that it was not
necessary and that they would consider each to have given
the other such notice at that point. 6
According to Bove, at one point during the meeting
Conway left temporarily to greet two other men who had
entered the lobby, and while he was gone Metzler said to
him, "You know, I can decertify you in a minute." Bove
testified that he replied that that was not negotiating.
Metzler and Conway denied that Conway left the other
group at any time before the meeting broke up and denied
that Metzler said anything about decertification. I have
credited their denial. Apart from some inconsistency
between Bove's testimony and an affidavit he gave during
the investigation of this case over the reason Conway left
him and Metzler, Bove's affidavit attributes to Conway a
blatant offer to pay Bove off personally in order to settle
the matter, which Bove did not refer to in his direct
testimony. When Bove was asked about it on cross-
examination, he denied that he knew what Conway meant
by his alleged statement, said he did not recall whether
Conway offered him the money for himself, testified that at
the time he gave his affidavit he recalled that Conway had
said that it was for himself, and conceded that he had not
reported the offer to any authority. When asked why he
had not mentioned the offer during his direct testimony
Bove answered that he was not asked about it. When Bove
was reminded that he had been asked to tell what
happened at the meeting, Bove again equivocated as to
whether Conway had told him he was offering him money
for himself. It is impossible to believe that Bove would have
failed to recall at the time of his testimony any offer by
Conway to pay him off personally and that such a
statement would not have stood out more vividly in Bove's
recollection than anything else which occurred at that
meeting. Yet not only did Bove fail to mention such a
statement on his direct examination, but on cross-examina-
tion his testimony as to the statement in his affidavit was
evasive, and produced an obvious display of discomfort.
6 On October 20, Metzler sent Bove a letter referring to this conversation
and stating that Respondent deemed negotiations and the old agreement
terminated.
There is little question in my mind that the statement Bove
attributed to Conway in his affidavit had no foundation in
fact. True, counsel for the General Counsel did not adduce
or rely on testimony concerning the alleged offer of a
payoff, but Bove's affidavit no less than his testimony was
given under oath, and the inclusion of the disputed
statement in Bove's affidavit coupled with his evasiveness,
equivocation, and discomfort during his cross-examination
destroys all confidence in Bove's testimony under oath.
Accordingly, I have not credited Bove where his testimony
is in conflict with that of Metzler or Conway.
Metzler was unable to discuss the matter with other
management officials for several days following the
September 15 meeting and did not call Bove back within a
day or two as he had promised. Bove placed one or two
calls to Metzler on September 16, and a few days later,
which Metzler did not immediately return. However, on
September 22 or 23, Metzler telephoned Bove and told him
that the offer that Respondent had made at the September
15 meeting "was it." Bove said that he was disappointed,
and Metzler said that Respondent's management was
pretty firm that its offer was equitable in the light of the
nature of the operation involved. Bove said that he would
have to take the offer to the employees and see where they
went from there.7 Metzler did not hear from Bove again
with respect to the contract and the Union made no further
request for bargaining.
On September 30, a decertification petition dated
September 27 was filed for the unit involved in this
proceeding. On October 8, a hearing date on the petition
was set for October 15, but the charge in this case was filed
on October 14, and the hearing was postponed. After
issuance of the complaint in this case the decertification
petition was dismissed without a hearing.
B. Conclusions
The allegation of the complaint that Respondent refused
to furnish the wage survey after Bove requested it must fail
with the rejection of Bove's testimony as to the request.
The General Counsel contends, however, that even under
the facts as found above the evidence shows that Respon-
dent bargained in bad faith and without any intention to
enter an agreement.
There are some factors which may be viewed as indicia
of bad-faith bargaining. Metzler rejected about a third of
the Union's proposals immediately, including some which
sought only the inclusion of existing practices in the
agreement. After indicating at the second meeting that he
would consider a number of the other proposals, Metzler
presented an offer which addressed only a few of the union
proposals. Metzler came to the final meeting apparently
without any authority to go beyond Respondent's final and
only offer, and after promising to check further with
management and get back to Bove promptly, Metzler
delayed for more than a week and failed even to return
Bove's calls. At the conclusion of the last meeting, despite
his offer to consider further Bove's reduced proposal,
T Metzler so testified. Bove denied that he received any call from Metzler
after September 15. 1 have credited Metzler.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metzler gave notice that negotiations were terminated
showing intent not to engage in any further negotiation.
However, other evidence points in the opposite direction.
Respondent met promptly at Bove's request, and each time
Metzler took the initiative to arrange the meetings after
Bove gave notice of reopening. Respondent requested
written proposals, and while it rejected a number of them,
Metzler went through the union proposals, stated a
position with respect to each of them, and gave reasons for
it. At no time did he indicate any unwillingness to discuss
them further. Respondent offered some concessions in
areas which the Union had raised, and although termed a
final proposal, Metzler held out the possibility of change by
soliciting a reduced proposal from Bove and offering to
consider it. Although Metzler gave notice of termination of
negotiations, Bove did not object but joined in the notice,
and Bove did not seek further negotiation then or later
when Metzler called him. Although the terms of Respon-
dent's offer may not be characterized as generous, they
represented improvement over the term of the agreement
which had been entered into only 6 months before.
In these circumstances, while there may be some
suspicion as to Respondent's intent, the evidence falls short
of establishing any more than that Respondent sought to
conclude negotiations for a relatively small bargaining unit
with a minimum number of meetings, a minimum amount
of discussion, and minimum cost to Respondent. It does
I 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.
not establish that Respondent only went through the
motions and bargained without any intention to enter into
a further agreement. Accordingly, I shall recommend that
the complaint be dismissed.
CONCLUSIONS OF LAW
I. Crown Central Petroleum Corp. is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 917, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The General Counsel has failed to establish that
Respondent has engaged in unfair labor practices as
alleged in the complaint.
Upon the basis of the above findings of fact and
conclusions of law and the entire record in this case and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby issue the following recommend-
ed:
ORDER8
It is hereby ordered that the complaint be dismissed in its
entirety.
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.
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