Oertle's

National Labor Relations Board - Board Decisions

Apr 29, 1977

229 N.L.R.B. 354 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MFY Industries, Inc., d/b/a Oertle's and Internation-
al Union of Operating Engineers Local Union No.
948, AFL-CIO. Case 16-CA-6318
April 29, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On January 24, 1977, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, l and
conclusions of the Administrative Law Judge and to
adopt her 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 Respondent, MFY Industries,
Inc., d/b/a Oertle's, Tulsa, Oklahoma, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I The Respondent 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,
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 her findings.
The Administrative Law Judge's Decision at sec. I is hereby modified by
substituting Wichita, Kansas, for Tulsa, Oklahoma, as Respondent's
principal place of business. However, the store involved herein is located in
Tulsa.
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge:
Upon a charge filed on or about November 14, 1975,1 by
International Union of Operating Engineers Local Union
No. 948, AFL-CIO, herein called the Charging Party or
the Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 16
(Fort Worth, Texas), issued a complaint and notice of
hearing on April 2, 1976. The complaint alleges that MFY
Industries, Inc., d/b/a Oertle's, herein called the Respon-
dent, since on or about October 17 has refused to bargain
with the Union as the certified collective-bargaining
representative of a unit of its employees; has refused to
reinstate certain employees who went on strike on or about
February 7, and who made unconditional requests for
reinstatement on or about September 18 and November 1,
because they joined or assisted the Union or engaged in
other protected concerted activities; and has thereby
engaged in unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the Act. The Respondent, in its
answer duly filed, admits some of the factual allegations of
the complaint, but denies the unfair labor practice
allegations.
Pursuant to notice, a hearing was held before me in
Tulsa, Oklahoma, on September 16, 1976. All the parties
appeared at the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and
to introduce relevant evidence. At the close of the hearing,
the General Counsel presented closing argument, and,
subsequent to the hearing, the Respondent on October 22,
1976, filed a brief, which argument and brief have been
duly considered.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is, and at all times material herein has
been, a corporation duly organized under, and existing by
virtue of, the laws of the State of Kansas, with its office and
principal place of business in Tulsa, Oklahoma, where it
operates a retail discount store under the name of Oertle's
Discount Center. The Respondent annually, in the course
and conduct of its business operations, receives gross
revenues in excess of $500,000 and purchases, transfers,
and delivers to its Tulsa facility goods and materials valued
in excess of $50,000 directly from States of the United
States other than the State of Oklahoma. The complaint
alleges, the Respondent in its answer admits, and I find
that the Respondent is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent in its answer
admits, and I find that International Union of Operating
Engineers Local Union No. 948, AFL-CIO, is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Principal Issues
The General Counsel contends that the Union obtained
membership cards on or about January 2 from the
operating engineers employed at the Respondent's store,
I All dates hereinafter refer to 1975 unless otherwise indicated.
229 NLRB No. 47
354
OERTLFS
and requested recognition; that the Respondent on or
about February 4 refused to recognize the Union; that the
unit employees went on strike on February 7; that the
Union was certified on or about July I as the representa-
tive of a unit of all full-time and part-time employees who
operate and maintain high-pressure and low-pressure
boilers and air-conditioning equipment and other station-
ary equipment at the Tulsa store, excluding all other
employees, guards, watchmen, and supervisors, as defined
in the Act; that the Respondent held some negotiation
meetings with the Union but has, since on or about
October 17, refused to recognize and bargain collectively
with the Union and, on or about September 18 and
November I, has refused to reinstate certain strikers who
made unconditional offers to return to work; and that the
Respondent thereby engaged in unfair labor practices in
violation of Section 8(a)(1), (3), and (5) of the Act.
The Respondent in its answer admits that the Union was
certified but denies knowledge, and demands strict proof,
of the unit allegations. It also asserts that it has no
employees in the unit and, when it does, will employ only
one operating engineer, and there is no obligation to
bargain for a no-man or one-man unit; that the strikers
who requested reinstatement were on-call employees
working a short time each month, had permanent jobs
elsewhere, and were not needed when they applied; and
"That they made a conditional offer to return to work,
conditioned upon the fact that respondent employ Carl
Briggs who was a supervisor, and who was legitimately
discharged. That said offer to return to work was
unconditional."
The principal issues are, therefore, whether or not certain
strikers made unconditional offers to return to work;
whether, if they did, the Respondent refused to reinstate
them for discriminatory reasons or for lack of work;
whether or not the unit became a no-man or one-man unit;
and whether the Respondent refused to bargain with the
certified representative of the unit employees because the
unit had been reduced to a no-man or one-man unit or in
violation of its statutory bargaining obligation.
B. The Negotiations
McEver, the Union's business manager, obtained signed
membership cards on about January 2 from Carl Briggs
and L. L. Howerton, 2 engineers who worked for the
Respondent full time, and Don Arnold, John Clark, and
Gerald Delay, engineers who worked for the Respondent
part time while holding other jobs. McEver on January 3
went to the Respondent's store with Briggs and 0. W.
Clark, International Representative of the Union, told
Tom Cobb, who was at that time the store manager, that
the Union represented a majority, and demanded recogni-
tion. McEver testified that Cobb said he had to consult his
boss, Downing,3 whose office was in Wichita, Kansas, and
that the union representatives met on January 24 with
Cobb and Downing, who refused to grant recognition and
said the Union had to take this matter up with Rheam, the
Respondent's attorney. Later McEver set up an appoint-
ment for January 28 and went to the store with O. W. Clark
and Howerton. Cobb and Downing were there, but said
they had been unable to reach Rheam. McEver comment-
ed that they were tired of coming there with the under-
standing they would see someone who could discuss
recognition only to find no one available to do so.
Another meeting was arranged for about February 4 and
was held in the management office of the store. McEver,
O. W. Clark, and Howerton were there for the Union.
Cobb, Downing, and Rheam represented the Respondent.
McEver claimed to represent a majority of employees in
the unit, offered to show the cards, and requested
recognition. Rheam refused this request and told the union
representatives to seek an election. On February 7 the
Union called a strike for recognition, and all five engineers
who had signed cards walked out. A few days later the
Union filed an election petition. When notified an election
was to be held, the Union pulled off its pickets.
The Decision and Direction of Election issued in the
representation proceeding (Case 16-RC-6868) found, on
the basis of facts set forth in the record and cited Board
and court authorities, that Briggs was a supervisor within
the meaning of the Act, and that the engineers who relieved
Briggs at times did not possess supervisory authority. The
parties herein stipulated that it also found that the part-
time engineers were regular part-time employees who were
included in the unit and eligible to vote. The contention
made by the Respondent that they should be excluded as
on-call employees was rejected. The election was held on
July 2. The Union was certified on July 11.
McEver called the Respondent several times after the
certification before he succeeded in reaching someone to
set up a meeting. He received a lengthy letter from Rheam,
dated August 8, which referred to the fact that Rheam on
July 15 had confirmed a meeting for "our first negotia-
tions" on August 13, but left the time and place open
because two of the Respondent's negotiators were coming
from Wichita; suggested the time of the meeting and that it
be held in "a neutral place" for which both sides would
split the expense equally; discussed a number of other
conditions for the general format of the negotiations;
stated that "Since a majority of our employees have
selected your Union to represent them. .... The Company
assures you that it intends to bargain in good faith, and we
know that your Union will do the same.... we demand
that negotiations be conducted in a gentlemanly manner
without threats or strong-arm tactics as your Union has
indulged in in the past. Should any strong-arm tactics be
used, you are advised that the Company negotiators will
walk out of the meeting." The letter also advised the Union
that Rheam intended, for several reasons that were set
forth, to use a tape recorder in the negotiation meetings.
The letter does not mention the place of the meeting,
which was held on August 13 at the Trade Winds Central,
with McEver, O. W. Clark, and Delay representing the
Union, and Kenneth McGee, who became manager of the
store on August 1, Downing, and Rheam representing the
Respondent. Rheam was seated at one end of a table about
8 feet long, with a tape recorder at that end and a
2 This name appears in the record at times as Hallerton.
355
3 Downing was not called as a witness.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
microphone in the middle of the table. McEver was seated
at the other end of the table. After introductions were
made, McEver said the tape recorder was not conducive to
good-faith negotiations and asked Rheam not to use it, but
Rheam said he had used it in other negotiations and would
at that time. After more discussion along this line, O. W.
Clark said Rheam would not use it and jerked out the plug
with such force it hit McEver on the forehead. Rheam said
they were there to negotiate as gentlemen and he would not
stay for this kind of conduct. The Respondent's representa-
tives then left the room about 5-10 minutes after the
meeting began, and they did not return although the union
representatives waited about 45 minutes.
McEver got in touch with Rheam and arranged another
meeting in late August, but a mediator who became
involved in these negotiations changed the date to
September 8. The meeting, held at a courthouse, was not a
face-to-face meeting but one with the mediator carrying
messages to each party. McEver, who was accompanied by
Arnold, Delay, and possibly also John Clark, gave a form
contract to the mediator as the Union's proposal. The
parties stipulated that the mediator gave it to the Respon-
dent. No proposals were forthcoming from the Respondent
on that date.
McEver testified that he, Delay, and possibly Arnold
represented the Union at the next meeting, held on
September 18. He also testified that at this meeting, which
lasted about 1-1/2 hours, Rheam handed the mediator a
partial counterproposal, listing certain other provisions
that were to be presented at another time, and the mediator
transmitted this proposal to McEver; that the parties later
met face-to-face and went over both parties' proposals
article by article; that McEver pointed out that there was
no provision on wages in the Respondent's counterpropos-
al or in the list of items to be presented later, which Rheam
said was an oversight; and that they agreed to use the
preamble in Rheam's counterproposal, which was the only
agreement reached at this meeting.
The parties met again at the courthouse about September
30. McEver testified that he was accompanied at this time
by Delay and, he believed, also by John Clark. The
Respondent presented to the Union through the mediator
the remainder of its counterproposal on the items that had
been listed and on wages. The parties later met face-to-
face. McEver testified that he objected again to Rheam's
use of a tape recorder, which on this occasion was one that
made loud squealing noises, and explained that his
eardrums had been damaged in Navy service and shrill
noises were difficult for him to tolerate, but Rheam said he
would use the recorder nevertheless; that the mediator also
commented that the recorder was very noisy and asked if
they could get along without it; that Rheam cut it off but
kicked it on again whenever anyone began to talk and
insisted he would use it in all face-to-face sessions; that this
meeting, like the previous one, lasted about 1-1/2 hours;
and that no agreements were reached, with the result that
the parties had agreed, when that meeting ended, only on
the preamble in the Respondent's counterproposal.
McEver wrote a letter to Rheam on October 6 proposing
that he would set up the next meeting as all the meetings
thus far had been set up by the Respondent; suggesting
that they meet at the Union's conference room, at a time
and date convenient to the Respondent, and that he was
free for the first 2 weeks of October; and commenting that:
"In previous attempts to negotiate, you have refused unless
the use of a tape recorder was allowed. But, as you well
know the noisiness of your tape recorder at the last meeting
made it impossible to negotiate without any distractions.
We also stand firm on the belief that a tape recorder is not
conducive to good faith bargaining." McEver, who re-
ceived no response to this letter, wrote again on October
16, requesting a meeting as soon as possible, stating that
the union committee would meet at any time, and urging
that the tape recorder not be used.
McEver received a letter from Rheam dated October 17,
expressing regret at the delay in answering McEver's letter
of October 6 "due to death and illness of associates," and
stating further as follows:
Due to the strike which was called by your union,
you taught us something. Prior to the strike and
election we had two full time engineers and four who
were on call working part time, and we learned that we
were overloaded with engineers. We learned that we
need only one engineer.
We have a first class engineer who was a member of
your union. (We do not know his union status at this
time.) However, he is a supervisor, and therefore, we do
not have to bargain over his services. There are no
other engineering employees, and therefore, there are
no unit employees.
It is well settled by the Labor Board that the
principle of collective bargaining pre-supposes that
there is more than one eligible person who desires to
bargain. Accordingly, a one-man unit or a no-employee
unit is inappropriate. Therefore, under the holding of
the Labor Board, we do not believe that we are
obligated to bargain with your union. Therefore, we
refuse to do so.
McEver testified that Rheam never mentioned this reduc-
tion in the unit during negotiations.
C. Requests of Strikers To Return to Work
The Respondent placed in evidence, or requested that
judicial notice be taken of, certain documents pertaining to
other Board proceedings between the parties. These
documents included a letter from the Regional Office
dated September 12 refusing to issue a complaint on
charges (Case 16-CA-6161) alleging that the Respondent
discriminatorily rejected offers to return to work by Briggs,
Clark, Arnold, and Delay, on the ground that Briggs was
found in Case 16-RC--6868 to be a supervisor, and the
other three conditioned their offers to return on Briggs'
return; and a letter from the Regional Office dated October
I refusing to issue a complaint on charges in the same
numbered case alleging discrimination against Howerton,
on the ground that a settlement agreement, signed by
Rheam on September 25 and approved by the Regional
356
OERTLE'S
Director on September 30, provided for the posting of a
notice and the reinstatement of Howerton.4
McEver testified, on cross-examination, that, while
Clark, Arnold, and Delay had full-time jobs with American
Airlines, they had been employed by the Respondent for
years, not on an on-call basis but on a regular schedule of
about 12 hours a week, and, as the parties stipulated, the
Decision and Direction of Election included them in the
unit as regular part-time employees.
Clark testified that he went to the Respondent's store
with Arnold, Delay, and Briggs in September, and they
made an unconditional request to return to work; that he,
Arnold, and Delay went to the store again in November,
accompanied by McEver, and, as instructed, each of the
three employees made a request to return to work using the
word "unconditional"; that McGee, then store manager,
said there was no work available; and that he did not recall
McGee saying they would be called if work became
available but admitted McGee might have said this. The
parties stipulated that the testimony of Arnold and Delay,
if called, would be the same as that of Clark.
McEver testified that he went with Arnold, Clark, and
Delay in November, that each of them told McGee he was
making an unconditional offer to return to work, that
McGee said he recognized that they were there to make an
unconditional offer but he had to get in touch with
someone, and that McGee when he returned said he had
made a telephone call and there were no jobs open.
McEver testified, on cross-examination, that he did not
recall McGee saying he would call these men if jobs
became available, doubted that McGee said it, but
admitted that McGee might have said it.
McGee testified that Delay, Clark, and Arnold came
twice to see him; that the first time they came, in mid-
September, Frances Gamboa, who has been personnel
director for many years and sometime before the hearing
became assistant store manager also, was with him; that
the three men introduced themselves, said they wanted to
meet him, and were ready to return to work; and that he
said he did not have any jobs then and would let them
know if anything came up. Gamboa testified that the three
introduced themselves and said they wanted to meet
McGee so he would know they were available for work,
and that McGee said he did not need any engineers and
would call if he did. McGee and Gamboa did not mention
Briggs being present or any reference made to Briggs.
McGee testified that on the second occasion Gann 5 was
with him, and McEver was with Arnold, Clark, and Delay;
that they had basically the same conversation, with each of
the three saying he was available for work; and that his
response was that he did not have anything and would call
if he did. He asserted, on cross-examination, that he was
positive the word "unconditional" was not used.
The parties stipulated at the hearing that, on or about
September 17, Arnold, Clark, and Delay, who had
T4 he notice, dated October 22, provided that the Respondent would not
fail or refuse to reinstate economic strkers who have unconditionally
requested reinstatement, and had offered to reinstate Howerton and to
make him whole for any loss of earnings he may have suffered because of
failure to accept his unconditional request for reinstatement. The settlement
agreement provided for no backpay.
5 Gann was not called to testify.
participated in the strike, "made an unconditional offer to
return to work to the Employer, which offer was denied,"
and that the same three individuals, on or about November
13, "made a second unconditional offer to return to work,
which offer was denied."
D. Scope of the Unit
Roscoe Turner, who is the boiler inspector of the city of
Tulsa, was called as a witness by the General Counsel. He
testified that the Respondent's store, classified by the Tulsa
Code as a mercantile building, must have an engineer in
the equipment room an hour before and an hour after
public occupancy; that this would require, if there was only
one engineer, that he work over 90 hours a week, which
cannot be done and maintain safe operation; and that he
believed the equipment had to be used about 46 weeks a
year, and required three operators and at times a fourth
part time. Turner stated, in a letter to McEver dated
January 7, 1976, placed in evidence by the Respondent,
that the code "states that an operator of the class required
shall be on duty 'from one (1) hour before until one (I)
hour after public occupancy when the equipment is in
operation.' " Turner admitted that the boilerroom equip-
ment was not in operation at the time of some of his
inspections. Turner also testified that the code requires the
posting of a log in the equipment room showing an
operator's time on duty, date, and signature, but he never
found such a log posted on several visits to the Respon-
dent's premises although he called the matter to the
attention of the operator on duty; that the certificate of the
operator must be hung on the wall under glass; and that he
was at the store in March when no license was on display,
in April and May when the only certificate was that of
Stolba, in June when two certificates, of Stolba and
Hebard, were on display, and in December and again in
June 1976, his last inspection, when on both occasions only
Howerton's license was on display.7
Cobb and Gamboa testified that Turner came to the
store about February 10, inspected the operating equip-
ment while they were present, and was told that the
equipment had not been operated since the engineers went
on strike. Cobb also testified that when Stolba was hired as
an engineer in March, he called Turner, as Turner had
requested, to come in to watch when the equipment was
started; that the equipment could not be started and later it
was discovered a part was missing; and that the part was
obtained and, finally, after about 2 weeks of work on it, the
equipment was running.
Cobb testified further that Turner on his first visit said
the Respondent had to have an operator present when the
equipment was in operation. He also testified that the
heating equipment was shut off on February 7, that the
temperature was below zero that night and the weather was
very cold for some time thereafter, that he left the
6 The store has one story and a basement. It is open for business 7 days a
week, on Monday through Saturday from 9:30 a.m. to 9:30 p.m.. and on
Sunday from noon to 7 p.m.
I As the Respondent argues, its failure to comply with the requirements
of the Tulsa Code is not in issue herein. The testimony as to these
requirements is relevant, however, to the extent that it indicates whether
compliance would require employment of more than one engineer.
357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fluorescent lights on at night and found the store
temperature was generally 70 to 72 degrees without any
heat, that he was not an engineer and had no idea how
much heat came from a fluorescent light, that the store did
not need any heating all winter and the boiler was not used
for heating from February until warm weather, and that he
would have liked to have an engineer but did not need one
to heat the store. Cobb admitted, on cross-examination,
that the office personnel used portable heaters after the
strike began, that he did not recall if the store clerks did,
that heaters were available in stock if the clerks wanted to
use them, and that they might have been used without his
noticing it.
Cobb testified further that he decided, after discussions
with other managerial personnel, that the Respondent
"could get by with one engineer." Cobb admitted, however,
he could not recall, as to any particular discussions, the
dates when they occurred, which management representa-
tives participated, or what was said. Gamboa did not testify
about this. Cobb testified that he also discussed with
Rheam the use of one engineer and the requirements of the
Tulsa Code; that Rheam was to check on this for the
Respondent, and later reported that the Respondent had to
have an engineer while the equipment was in operation;
and that he did not believe Rheam ever got into the
number of hours an engineer would have to work under the
code, but he discussed this with Arbuckle.8
When Cobb testified that he decided the Respondent
"could get by with one engineer," counsel for the
Respondent asked, "Did the engineer that you hired
replace Carl Briggs, who was a supervisor?" Cobb
answered, "I did hire Mr. Stolba in a supervisory capacity,
yes." Cobb also testified that, when Stolba was hired, "we
had no one for him to supervise," then Stolba supervised
the janitorial crew and the basket boys as the chief
engineer had done in the past.
Cobb also testified that he thought the engineer was
hired for a 54-hour week, and that his workweek would
vary from 54 in the summer, when air-conditioning was
needed, to as few as 30 in cold weather, when heat was not
needed. Cobb testified that, about 2 weeks after Stolba was
hired, Hebard was hired on a contractual basis to help get
the equipment in working order and to relieve Stolba
occasionally, with the amount of work Hebard did left up
to him and Stolba to decide, and that Hebard, who was
there about 4 to 6 weeks, worked 50 to 60 hours a week for
the first few weeks to get the equipment operating and
because of maintenance problems, but did not work many
hours after the equipment was functioning again. Cobb
testified further that he used some part-time engineers
during the summer of 1975 after Hebard left, but did not
remember their names; that there were two licensed
engineers Stolba called when he had maintenance work to
be done or needed time off, and it was up to Stolba to call
them as needed; that these engineers billed the store for
their time, which varied from week-to-week but, Cobb
thought, amounted to about 15 or 20 hours a week; that he
did not recall how much they were paid or whether they
billed weekly or biweekly; that he thought they were paid
s Arbuckle was not called to testify.
9 N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967); The
Laidlow Corporation v. N.L.R.B., 414 F.2d 99 (C.A. 7, 1969).
out of the store's cash fund, then recalled that their time
was sent to Wichita and they were paid out of Wichita as
were the other employees; and that he did not see all the
bills for their time as Stolba gave them to an office clerk.
Gamboa testified that there has been no heating in the
store since the strike; that some heaters were used in the
offices after the strike, but were before the strike as well;
and that she saw no heaters around the store. She testified
further that she knew Stolba, after he was hired, had
trouble getting the system working and was calling in
people to help; that Stolba thereafter used a service when
he needed help; that she knew Hebard came in to help
Stolba, and probably two others; that she could not recall
their names and did not know how long Stolba continued
to use them; that the service that Stolba called on for help
"was billing us on an invoice through accounts payable for
the work they were doing in helping him"; and that she had
no role in Stolba's use of part-time engineers and did not
see the invoices, which were sent to the Wichita office for
payroll purposes.
After McGee had testified, he was recalled by counsel for
the Respondent, and was asked: "Mr. McGee, you have
successfully operated the store with one engineer, is that
not correct?" McGee answered "Yes." McGee also
testified that his plans were to continue operating with one
engineer, and that this was a decision he made on his own
authority. He was not asked anything about utilization of
part-time or contract engineers.
Concluding Findings
As noted above, the Regional Director, in the Decision
and Direction of Election, found the Respondent's part-
time engineers to be regular part-time employees who were
included in the unit and eligible to vote in the election,
rejecting the Respondent's contention that they were on-
call employees. The Respondent in its answer again asserts
that they were on-call employees. There is no evidence,
however, that the Respondent appealed the decision of the
Regional Director, and no evidence was presented in the
instant proceeding to warrant a different disposition of this
issue. I find, on the entire record, that Arnold, Clark, and
Delay were regular part-time employees of the Respon-
dent.
I find further that Arnold, Clark, and Delay, who had
gone on strike on February 7, retained their employee
status while on strike,9 and made requests to go back to
work on or about September 17 and November 13. The
Respondent points to a Regional Office letter, issued in
Case 16-CA-6161, stating that investigation showed a
request made on September 10 was conditioned upon the
reinstatement of Briggs, who had been found to be a
supervisor. This was an administrative determination,
however, made in another case and not based upon
litigation of the issues at a hearing. I find this determina-
tion not binding as the evidence presented in this
proceeding shows, and I find that no such condition, or
any other condition, was attached to the request to come
back to work made by Arnold, Clark, and Delay on or
358
hired as an engineer for a 54-hour week during the summer,
to vary to as few as 30 in cold weather, but did not explain
what functions would be performed by an engineer for 30
hours a week if the heating equipment was not in
operation.
Moreover, the testimony presented by the Respondent as
to the employment of engineers to assist Stolba was
exceedingly hazy. One name, Hebard, was given, and
testimony that he worked 50-60 hours the first few weeks
he worked. Cobb, the former store manager, and Gamboa,
the assistant manager and personnel director, did not
know, and McGee, the present store manager, was not
asked, the names of the other engineers who assisted Stolba
for, Cobb thought, about 15 or 20 hours a week, the dates
when they were employed, how many hours they worked,
or how much they were paid. The records that would show
this, which were within the Respondent's control, were not
produced. There was also no explanation of the situation as
to Howerton, who had been a full-time employee and who,
according to a settlement agreement Rheam signed on
September 25, was to be offered reinstatement. Further-
more, Howerton, according to a posted notice, dated
October 22 and signed by McGee, had been offered
reinstatement and, according to Turner's testimony, had a
license on display in the boilerroom in December 1975 and
in June 1976.
The Respondent in its brief cites a number of Board and
court decisions holding that an employer will not be
ordered to bargain collectively with a representative on
behalf of an appropriate unit that has been reduced to a
one-man unit. The Respondent's claim that the certified
unit was reduced to a no-man or one-man unit was made
for the first time in a letter to the Union dated October 17,
about 8 months after Cobb discovered, as he testified, that
the store did not need any heating even in very cold
weather. It was also about a month after the Respondent
refused discriminatorily, as found above, to reinstate three
striking employees; about a month and a half after Cobb,
who testified he decided the store could operate with one
engineer, had been replaced as store manager by McGee,
and after McGee, as he testified, had been operating with
one engineer and would continue to do so; and about 3
months after the Union was certified.
It is long-established Board and court law that a certified
union is entitled to an irrebuttable presumption of
continued majority status during its certification year
absent unusual circumstances," that "an employer must
bargain with the certified representative during the certifi-
cation year even if the union has lost its majority status"'2
that, "If an employer has doubts about his duty to continue
bargaining, it is his responsibility to petition the Board for
relief, while continuing to bargain in good faith at least
II Ray Brooks v. N.LR.B., 348 U.S. 96, 103 (1954); Adams Potato Chips,
Inc., 176 NLRB 130 (1969).
12 N.LR.B. v. F Strauss and Son, Inc., 536 F.2d 60, 64 (C.A. 5, 1976).
about September 17. Another request was made on or
about November 13 by the same three individuals, who
were accompanied on this occasion by the union represen-
tative. I credit the testimony that each of the three made an
unconditional request to return to work. McGee, who had
replaced Cobb as store manager, told the three on both
occasions there was no work. On the second occasion, he
checked with someone on the telephone before stating
there was no work.
The Respondent maintains that on both of these
occasions McGee said not only that there were no jobs
open but also that he would call if work became available.
The General Counsel disputes that McGee said he would
call if work became available. I find, based on testimony of
the Respondent's witnesses, and on admissions of the
General Counsel's witnesses that it might have occurred,
that McGee also said on each occasion he would call these
men if work became available. I also find, however, that
work did become available but McGee did not call them.
Accordingly, I find, based on all the relevant evidence,
including stipulations of the parties, that Arnold, Clark,
and Delay made unconditional offers to return to work on
September 17 and again on November 13, which the
Respondent rejected; that the Respondent did not tell the
three on September 17, or tell the Union at the negotiation
session on September 18, that the unit had been reduced to
a no-man or one-man unit; and that the Respondent, after
telling these three part-time employees there was no work,
employed others on a part-time basis to do unit work. In
conclusion, therefore, I find, based upon the entire record,
that the Respondent refused to reinstate these employees
not for lack of work, as it asserted, but because of their
union membership and activities and in order to dissipate
the Union's representative status, and that the Respondent
thereby discriminated against these employees in violation
of Section 8(a)(3) and (1) of the Act.'l
With regard to the refusal-to-bargain allegations, the
Respondent points to a Regional Office letter refusing to
issue a complaint in this proceeding on the ground that the
Respondent had shown it was operating with only one
engineer. On appeal by the Union, however, a complaint
was issued. The issues herein will, therefore, be determined
on the basis of the evidence developed at the instant
hearing.
Cobb, who was then the store manager, testified that he
decided the store could operate with only one engineer
after discussions with other managerial personnel as to the
feasibility of doing so. He admitted he could not recall,
however, when any particular discussions of this matter
were held, with whom, or what was said. He also discussed
this with Rheam. Evidently Cobb had some question about
compliance with the city code if there was only one
engineer as he asked Rheam to check on this matter. Cobb
testified further that, even though he did not need an
engineer to heat the store, he would have liked to have one,
but did not state what functions the engineer would
perform. Cobb also testified that he thought Stolba was
10 See Global Automotive Enterprises, 172 NLRB 627 (1968); C. H.
Sprague & Son Co., 175 NLRB 378 (1969); Selecto-Flash, Inc., 176 NLRB
170 (1969); Skaggs Drug Centers, Inc., 176 NLRB 737 (1969); Lou Taylor,
Inc. and Mr. T., Inc., 226 NLRB 1024 (1976); Swearingen Aviation
Corporation, 227 NLRB 228 (1976).
OERTLFS 359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until the Board has given some indication that his claim
has merit"; 13 and that, in a withdrawal of recognition case,
the employer bears the burden of proving the Union's loss
of majority and the presumption of majority must be
rebutted by clear, cogent, and convincing evidence.' 4
I find that the Respondent failed in its obligation to
continue bargaining while petitioning the Board for relief,
and failed also to show "unusual circumstances" existed in
this case to justify its withdrawal of recognition of a
certified union. While the Respondent contends that its
obligation to bargain ended when the unit was reduced to a
no-man or one-man unit, it failed to establish that the unit
was in fact so reduced, or that this situation, if it existed,
was permanent.
I do not credit the assertions of Cobb that, as store
manager, he hired only one engineer and that one had
supervisory status, or the assertions of McGee that, as store
manager, he operated successfully and would continue to
operate with only one engineer, on the basis of their
demeanor as witnesses, the inconsistencies, contradictions,
and improbabilities in their testimony, and the evidence,
presented by the Respondent, that during the period in
question the store employed as engineers Stolba, Hebard,
Howerton, and unnamed individuals who did unit work
about 15 or 20 hours a week. The Respondent introduced
no payroll records or other documentary evidence showing
the employment status or tenure of any of these engineers.
And the Respondent, as found above, attempted to
dissipate the Union's representative status by discriminato-
rily rejecting the requests of striking unit employees to
return to work.
Accordingly I conclude and find, on the entire record in
this proceeding, that the Respondent has, since on or about
October 17, refused to bargain collectively with the Union
as the certified collective-bargaining representative of the
Respondent's employees in an appropriate unit, and
thereby violated Section 8(a)(5) and (I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(l),
(3), and (5) of the Act, I shall recommend that the
Respondent be ordered to cease and desist therefrom and
from in any other manner infringing upon its employees'
13 Brooks v. N.L.R.B., supra, N.L.R.B. v. U.S. Sonics Corporation, 312
F.2d 610, 616 (C.A. 1, 1963); International Harvester Company, 227 NLRB
85 (1976); Tahoe Nugget, Inc., 227 NLRB 357 (1976).
14 N.L.R.B. v. Vegas Vic, Inc. d/b/a Pioneer Club, 546 F.2d 828 (C.A. 9,
1976).
Section 7 rights,15 and to take certain affirmative action
designed to effectuate the policies of the Act.
I have found that the Respondent, on and after
September 17, 1975, discriminatorily refused to reinstate
striking employees Don Arnold, John Clark, and Gerald
Delay upon their unconditional requests for reinstatement.
I shall therefore recommend that the Respondent be
ordered to offer these three employees reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, discharging, if
necessary, any individuals employed to do engineering
work part-time since September 17, 1975, and to make each
of these employees whole for any loss of earnings he may
have suffered by reason of the Respondent's discrimination
against him, by payment to each of a sum of money equal
to the amount he normally would have earned during said
period, less his net earnings in an equivalent part-time job
during such period, with backpay computed on a quarterly
basis, plus interest at 6 percent per annum, as prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).16
I have also found that the Respondent unlawfully
refused to bargain with the Union as the certified
representative of its employees in an appropriate unit. I
shall therefore recommend that it be ordered to bargain
collectively with the Union, upon request, concerning rates
of pay, wages, hours, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
I. The Respondent, MFY Industries, Inc., d/b/a
Oertle's, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers Local
Union No. 948, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By refusing on and after September 17, 1975, to
reinstate striking employees Don Arnold, John Clark, and
Gerald Delay upon their unconditional request for rein-
statement, because of their union membership and activi-
ties and in order to dissipate the Union's representative
status, the Respondent has discriminated against employ-
ees in regard to their hire or tenure of employment, and has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. All full-time and part-time employees who operate
and maintain high-pressure and low-pressure boilers and
air-conditioning equipment and other stationary equip-
ment at the Respondent's Tulsa, Oklahoma, store, exclud-
ing all other employees, guards, watchmen, and supervi-
sors, as defined in the Act, constitute a unit appropriate for
15 N.LR.B. v. Express Publishing Company, 312 U.S. 426, 437 (1941);
N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A. 4,
1941).
16 See Hargis Mine Supply, Inc., 225 NLRB 660 (1976); P. B. Mutrie
Motor Transportation, Inc., 226 NLRB 1325 (1976).
360
OERTLE'S
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
5. At all times since July 11, 1975, International Union
of Operating Engineers Local Union No. 948, AFL-CIO,
has been the certified representative of the employees in
the aforesaid appropriate unit.
6. By refusing on and after October 17, 1975, to bargain
collectively with International Union of Operating Engi-
neers Local Union No. 948, AFL-CIO, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER t 7
The Respondent, MFY Industries, Inc., d/b/a Oertle's,
Tulsa, Oklahoma, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to reinstate striking employees upon their
unconditional request for reinstatement, or in any other
manner discriminating against employees in regard to their
hire or tenure of employment, because of their membership
in or activities on behalf of International Union of
Operating Engineers Local Union No. 948, AFL-CIO, or
in order to dissipate that Union's representative status.
(b) Refusing to bargain collectively with International
Union of Operating Engineers Local Union No. 948, AFL-
CIO, as the certified collective-bargaining representative of
its employees in the unit found appropriate herein.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Don Arnold, John Clark, and Gerald Delay
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make each of them whole for any loss of earnings they
may have suffered by reason of the Respondent's discrimi-
nation against them, in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under the
terms of this recommended Order.
(c) Upon request, bargain collectively with International
Union of Operating Engineers Local Union No. 948, AFL-
CIO, as the certified representative of the employees in the
unit found appropriate with respect to rates of pay, wages,
hours, and other terms and conditions of employment, and
embody in a signed agreement any understanding reached.
The bargaining unit is:
All full-time and part-time employees who operate and
maintain high-pressure and low-pressure boilers and
air-conditioning equipment and other stationary equip-
ment at the Respondent's Tulsa, Oklahoma, store,
excluding all other employees, guards, watchmen, and
supervisors, as defined in the Act.
(d) Post at its place of business in Tulsa, Oklahoma,
copies of the attached notice marked "Appendix."' 8
Copies of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by the
Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
17 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.
1s 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 refuse to reinstate striking employees
upon their unconditional request for reinstatement, or
in any other manner discriminate against employees in
regard to their hire or tenure of employment, because
of their membership in or activities on behalf of
International Union of Operating Engineers Local
Union No. 948, AFL-CIO, or in order to dissipate that
Union's representative status.
WE WILL NOT refuse to bargain collectively with the
aforesaid Union as the certified collective-bargaining
representative of our employees in an appropriate unit.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 of the National Labor
Relations Act.
WE WILL offer to Don Arnold, John Clark, and
Gerald Delay reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and WE WILL make each of them
whole for any loss of earnings they may have suffered
as a result of the discrimination against them.
WE WILL, upon request, bargain collectively with the
aforesaid Union as the certified representative of our
361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in an appropriate unit with respect to rates
of pay, wages, hours, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached. The bargaining unit is:
All full-time and part-time employees who oper-
ate and maintain high-pressure and low-pressure
boilers and air-conditioning equipment and other
stationary equipment at our Tulsa, Oklahoma,
store, excluding all other employees, guards,
watchmen, and supervisors, as defined in the Act.
MFY INDUSTRIES, INC.,
D/B/A OERTLE'S
362