Oldfield Tire Sales

National Labor Relations Board - Board Decisions

Dec 29, 1975

221 N.L.R.B. 1275 (N.L.R.B. 1975)

OLDFIELD TIRE SALES 1275
Albert L. Oldfield , d/b/a Oldfield Tire Sales and
Chauffeurs and Helpers , Local No. 50 , affiliated
with International , Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 14-CA-8562 and 14-CA-8711
December 29, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On the basis of charges filed by Chauffeurs and
Helpers, Local No. 50, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, hereafter referred to as
the Union, on June 2 and August 7, 1975,1 in Cases
14-CA-8562 and 14-CA-8711, respectively, the
Acting General Counsel of the National Labor
Relations Board, hereinafter the General Counsel, by
the Regional Director for Region 14, issued an order
consolidating cases, amended complaint, and notice
of hearing against Albert L. Oldfield, d/b/a Oldfield
Tire Sales, hereafter referred to as Respondent, on
September 5. The amended complaint alleges, inter
alia, that, since on or about March 1, Respondent
has violated Section 8(a)(1) of the Act by interfering
with, restraining, and coercing his employees in the
exercise of their rights guaranteed by Section 7 of the
Act, and that, since on or about July 21, Respondent
has violated Section 8(a)(1) and (5) of the Act by
refusing to bargain collectively with the Union as the
exclusive bargaining representative of all servicemen
employed at Respondent's Vandalia, Illinois, facility
by undermining the Union's status as exclusive
collective-bargaining representative and by bargain-
ing directly and individually with an employee in the
aforesaid unit. Respondent filed an answer to the
complaint on September 10 in which he admitted
certain allegations but denied the commission of any
unfair labor practices.
On September 23, the parties executed a stipulation
of facts and filed a motion to transfer the proceed-
ings to the Board wherein they agreed that certain
documents would constitute the entire record here-
in,2 waived all intermediate proceedings before an
Administrative Law Judge, and submitted this case
directly to the Board for findings of fact, conclusions
of law, and the issuance of a Decision and Order. On
September 30, the Board granted the motion,
approved the stipulation, and set a date for the
parties to file their briefs. Thereafter, a brief was filed
by General Counsel.
1 All dates hereinafter refer to 1975 unless otherwise specified
2 The parties agreed that the charges, order consolidating cases,
amended complaint and notice of hearing , answer to the amended
221 NLRB No. 200
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 entire record herein,
as stipulated to by the parties, as well as General
Counsel's brief, and makes the following findings of
fact and conclusions of law:
I. THE BUSINESS OF THE EMPLOYER
Respondent is, and has been at all times material
herein, an individual proprietorship engaged in the
wholesale and retail sale and distribution of tires and
related accessories. Respondent's principal office and
place of business is at Sixth and Orchard Street in
Vandalla, Illinois. During the year ending December
31, 1974, which period is representative of his
operations, Respondent, in the course of his business
operations, derived gross revenues in excess of
$500,000, and purchased and caused to be transport-
ed and delivered to his Vandalia, Illinois, facility,
tires and other goods and materials valued in excess
of $50,000, which goods and materials were trans-
ported and delivered to his facility from points
located outside the State of Illinois. Respondent
admitted, and we find, that Respondent is, and at all
times material herein has been, an employer engaged
in commerce or an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admitted, and we find, that the Union
is, and at all material times has been, a labor
organization within the meaning of Section 2(5) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admitted , and we find, that the Union
is, and at all material times has been , a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
On May 30, an election by secret ballot was
conducted by the Board among the employees of
Oldfield Tire Sales in the following appropriate unit:
All servicemen employed at the Employer's
facility at Sixth and Orchard, Vandalia, Illinois,
excluding outside salesmen , office clerical and
complaint , and the stipulation of facts, including exhibits attached thereto,
constitute the entire record in this case
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
professional employees , guards and supervisors as
defined in the Act.
On June 12, the Union was certified as the exclusive
collective-bargaining representative of the employees
in said unit for collective-bargaining purposes within
the meaning of Section 9(b) of the Act.
Prior to the certification, commencing on or about
March 1, Respondent engaged in certain conduct
which the parties stipulated violated Section 8(a)(1)
of the Act. Thus in March, Respondent interrogated
an employee by asking the employee if anyone from
the Union had spoken with him, and threatened an
employee by relating that he, Oldfield, wanted the
Union voted out so that he could terminate another
employee and make sure that the other employee
could not bring back the Union. On or about May 7,
Firestone District Representative Piazza3 told an
employee that employees would be under closer
scrutiny by Respondent Oldfield, because he would
be looking for an excuse to discharge employees who
engaged in union activity. On May 16, Oldfield
implicitly threatened to replace employees because of
their union activity by telling an employee that when
Respondent's labor problems were eliminated he
could hire decent help. On May 30, Oldfield created
an impression of surveillance by telling an employee
that he knew the employee had attended a meeting
concerning the Union; interrogated an employee by
asking the employee what occurred at a union
meeting; interrogated an employee by asking the
employee if the employee sided with Oldfield against
the Union; coerced an employee by telling the
employee that his job was conditioned on his
agreeing not to engage in union activities; promised
an employee improved employment opportunities if
the employee did not support the Union; and created
an impression of surveillance by telling an employee
that he knew which employees supported the Union.
We agree with the stipulation of the parties that, by
the aforementioned conduct, Respondent violated
Section 8(a)(1) of the Act. We so find.
Following the certification, the parties held their
initial bargaining session on July 3. At that time,
representatives of the Respondent and the Union
reviewed the Union's proposals. On July 16, Respon-
dent wrote to the Union about the contract propos-
als. In his letter, Respondent commented on several
of the provisions, proposed several additions, and
suggested a further bargaining session.
Subsequently, on or about July 21 or 28, Respon-
dent engaged in conduct which the parties stipulated
violated Section 8(a)(1) of the Act. According to the
stipulation, Oldfield threatened to discharge an
employee if the employee joined the Union; told an
employee that he, Oldfield, did not intend to
negotiate with or to recognize the Union; and
threatened to discharge an employee if the employee
engaged in union activity. We agree with the parties
that the aforementioned conduct violated Section
8(a)(1) of the Act, and we so find.
On August 7, the Union filed charges with the
Board alleging that Respondent had violated Section
8(a)(1) and (5) of the Act. Thereafter, Respondent
engaged in further conduct which the parties have
agreed, in their stipulation, was violative of Section
8(a)(1). Thus, on or about August 23, Oldfield
interrogated' an employee by asking the employee
about his union sympathies and by asking the
employee if anyone from the Union had approached
him. On or about the same date, Oldfield promised
to grant the employees increased wages and more
overtime if he, Oldfield, was successful in getting rid
of the Union, and also threatened to close the
business if the employees engaged in a strike. We
agree with the parties' stipulation that, by the
aforementioned conduct, Respondent violated Sec-
tion 8(a)(1) of the Act. We so find.
The Union and Respondent met on September 4 to
discuss the contract proposals. At this meeting, the
Union agreed to modify and resubmit its proposal of
July 3. Thereafter, on September 23, the parties
executed the above-referenced stipulation.
B. Contentions of the Parties
General Counsel contends that Respondent violat-
ed Section 8(a)(5) and (1) of the Act by engaging in
conduct which is contrary to the concept of good-
faith bargaining at a time when he was obligated to
bargain and was ostensibly doing so. General
Counsel further contends that Respondent violated
Section 8 (a)(1) and (5) by attempting to undermine
the Union's majority status, and by attempting to
bargain individually with an employee concerning
conditions of employment.
Respondent did not file a brief with the Board, but
he refused to stipulate that he violated Section 8(a)(5)
of the Act. His apparent position , therefore, is that
despite his admitted violations of Section 8(a)(1) he
did not violate Section 8(a)(5).
C. Discussion and Conclusions
Having concluded, in agreement with the stipula-
tion of the parties, that Respondent has committed
numerous violations of Section 8(a)(1) of the Act,
both before and after the Union was certified and
bargaining had begun, the sole issue remaining for
our disposition is whether he also violated Section
3 Respondent admitted in his answer that Piazza was a supervisor within the meaning of Sec 2(11) of the Act, and Respondent 's agent.
OLDFIELD TIRE SALES
8(a)(5) of the Act. We find, for the reasons set forth
below, that Respondent, while ostensibly engaging in
bargaining, failed to bargain in good faith and in fact
attempted to undermine the Union, thereby violating
Section 8(a)(5) of the Act.
Subsequent to the, Union's certification as exclusive
bargaining representative of the unit employees,
Respondent, Oldfield, as stipulated to by the parties,
told an employee that he thought there would be a
strike because he did not intend to recognize the
Charging Party or negotiate with it. These comments
were made a few weeks after the parties' initial
bargaining session. In this context, considerable light
is shed on Respondent's attitude toward both
bargaining and his prospective relationship with the
Union. Clearly, Respondent was not seeking to
establish a bargaining relationship with the Union as
is required by law. Rather, he was meeting with the
Union while at the same time attempting to destroy
its majority and undermine its representative status.
That Respondent's primary objective was to oust
the certified representative of his employees is further
exemplified by his conduct on August 23. On that
date, as stipulated to by the parties, Oldfield told an
employee that when Respondent got rid of the
"damn Union" he could pay the employees $10 to
$15 more per week, and give them more overtime.4
In the face of these remarks, it cannot validly be
contended that Respondent was, at all sincere about
his obligations under Section 8(a)(5) of the Act.
Rather Respondent's conduct, as evidenced by his
numerous violations of Section 8(a)(1), is the very
antithesis of good-faith bargaining and belies any
claim that he was fulfilling-his statutory obligations.
The mere fact that Respondent met with the Union
and gave the appearance of bargaining about terms
and conditions of employment does not alter this
conclusion under the totality of circumstances here
present. Accordingly, we find that Respondent
violated Section 8(a)(5) and (1) of the Act.-9
IV. THE REMEDY
Having found that Respondent, Albert L. Oldfield,
d/b/a Oldfield Tire Sales, has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act, we shall order that he
cease and desist therefrom, and, take certain affirma-
tive action necessary to remove the effects of the
unfair labor practices and to effectuate the policies of
the Act.
Having also found that Respondent has refused to
bargain in good faith with the Union in violation of
4 General Counsel contended that this remark constituted an attempt by
the Respondent to bargain individually with the unit employees in violation
of Sec 8(a)(5) of the Act Although we do not agree that this remark alone
can establish an attempt to bargain individually with employees in the unit,
1277
Section 8(a)(5) and (1) of the Act, we shall order that
he cease and desist from such unlawful conduct, and
affirmatively that he bargain in good faith with the
Union upon request.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate unit. See Mar Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964),,enfd. 350 F.2d 57 (C.A..10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Albert L. Oldfield, d/b/a Oldfield Tire Sales, is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Chauffeurs and Helpers, Local No. 50, affiliat-
ed with 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 unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act is: All servicemen employed at
Employer's facility at Sixth and Orchard, Vandalia,
Illinois, excluding outside salesmen, office clerical
and professional employees, guards and supervisors
as defined in the Act.
4. -Since June 12, 1975, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By interrogating employees about their and
other employees' union activities; coercing them by
directing them to vote out the Union and telling
them he would not recognize or bargain with the
Union; threatening them with reprisals for their
union activities, including discharge and plant
closure; creating the impression of surveillance over
their union activities; conditioning employment and
promising benefits on their abandonment of the
Union; and otherwise interfering with, restraining,
we find that this statement demonstrates Respondent's bad faith in
bargaining with the Union.
5 Valley Oil Co, Inc, 210 NLRB 370 (1974), see Romo Paper Products
Corp., 208 NLRB 644 at fn. 3 (19-74)
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act, the
Respondent has engaged, and is engaging, in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act. ,
6. By seeking to undermine the Union and to
destroy its, majority status, and by refusing to bargain
in good faith with the above-named labor organiza-
tion, Respondent has engaged, and is engaging, in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
7. By the aforesaid refusal to bargain Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations, Act, as amended, the National Labor
Relations Board hereby orders that,, Respondent,
Albert L. Oldfield, d/b/a Oldfield Tire Sales,
Vandalia, Illinois, his agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Chauffeurs and
Helpers, Local No. 50, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive
bargaining representative of his employees in the
following appropriate, unit:
All servicemen employed at the Employer's
facility at Sixth and Orchard, Vandalia, Illinois,
excluding outside salesmen, office clerical and
professional employees, guards and supervisors as
defined in the Act.
(b) Interrogating employees about their union
activities; coercing them by directing them to vote
out the Union or telling them he would not recognize
or bargain with the Union; threatening them with
reprisals for their union activities, including dis-
charge and plant closure; engaging in surveillance of
their union activities or creating the impression of
such surveillance; or conditioning employment on
their abandonment of the Union or promising them
benefits if they abandoned the Union.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain in, good faith with the
above-named labor, organization as the exclusive
representative of all employees in the aforesaid
appropriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at his Vandalia, Illinois, facility copies of
the attached notice marked "Appendix."6 Copies of
said notice, on forms provided by the Regional
Director for Region 14, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
6 In the event that this 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
I WILL NOT refuse to bargain in good faith
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Chauf-
feurs and Helpers; Local No. 50, affiliated with
"International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as
the exclusive representative of my employees in
the appropriate unit described below:
All servicemen employed at the Employer's
facility at Sixth and Orchard, Vandalia,
Illinois, excluding outside salesmen, office
clerical and professional employees, guards
and supervisors as defined in the Act.
I WILL NOT interrogate my employees about
their union activities, coerce them by directing
OLDFIELD TIRE SALES
them to vote out the Union or telling them I will
not recognize or bargain with the Union, threaten
them with reprisals for their union activities,
including discharge and plant closure, engage, in
surveillance of their union activities or create the
impression of such surveillance, or condition
employment on their abandonment of the Union
or promise them benefits if they abandon the
Union.
I WILL NOT in any like or related manner
interfere with; restrain, or coerce employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
1279
I WILL, upon request, bargain in good faith with
the above-named labor. organization as the
exclusive representative of all employees in the
aforesaid appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions
of employment and, if an understanding is
reached, embody such understanding in a signed
agreement.
ALBERT L. OLDFIELD,
D/B/A OLDFIELD TIRE
SALES