Perfect Service Gas Co., Inc.

National Labor Relations Board - Board Decisions

May 15, 1964

146 N.L.R.B. 1686 (N.L.R.B. 1964)

1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agent one already selected by fewer than 70 employees of Worcester
Stamped would appear to be, by mandate, depriving them of the statutory right
accorded them as long ago as 1935 of selecting , as principals , their own bargaining
agent.
It may well be that the Board would determine the all-embracive unit claimed
by the Union and General Counsel to be appropriate for the purposes of collective
bargaining, but it is doubtful if it would certify any Union as the bargaining agent
of such unit without according the vast majority of employees involved the right,
by election , to record their choice.
In short, the Trial Examiner is not convinced that General Counsel has proven,
by a preponderance of the evidence , that the "accretion ," if any, here existing is of a
nature or degree sufficient to warrant the conclusion that the Respondent has violated
Section 8(a)(5) and ( 1) of the Act by declining, in effect, to bargain with the
Union as the exclusive representative of all employees in a unit consisting of main-
tenance and production employees of both Worcester Stamped and American
Emblem.'
It will therefore be recommended that the complaint be dismissed in its entirety.
RECOMMENDED ORDER
Having concluded that the evidence is insufficient to establish a violation of Sec-
tion 8 ( a)(5) and (1) of the Act, the Trial Examiner recommends that the com-
plaint in its entirety be dismissed.
IIt has appeared unnecessary to set out here undisputed details of conferences between
a Rice Barton and a union representative , before the actual purchase of American Emblem,
the substance of which indicates that the parent concern Itself wished to have the Union
represent employees of the company it was to absorb . Neither an employer nor a labor
organization , nor the two acting in concert, have any right under the Act except as pro-
vided in Section 8(f), not applicable here, to select and determine the bargaining agent
of employees.
Perfect Service Gas Company, Inc. and Local 863, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Cases Nos. 22-CA-1366 and P2-CA-1527.
May 15, 1964.
DECISION AND ORDER
On October 14, 1963, Trial Examiner John F. Funke issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had not engaged in unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Decision. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision and a supporting brief.
The Respondent filed a brief in reply to the General Counsel's excep-
tions and in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
146 NLRB No. 187.
PERFECT SERVICE GAS COMPANY, INC. 1687
record in this case, including the Trial Examiner's Decision, the ex-
ceptions and briefs, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendation.1
[The Board dismissed the complaint.]
' The General Counsel concedes in his brief to the Board that the Respondent had not
refused to bargain subsequent to the settlement agreement of January 18, 1963, but con-
tends that the discharge of Dorey on March 9, 1963, was discriminatory and warrants
setting aside the settlement agreement and issuing a remedial order for the alleged refusal
to bargain occurring before the date of the settlement agreement . As we conclude, in.
agreement with the Trial Examiner , that Dorey' s discharge was not discriminatorily
motivated , we do not pass upon Respondent 's presettlement bargaining , and absent ex-
ceptions thereto, we adopt pro forma the Trial Examiner 's finding that the Respondent
did not refuse to bargain in violation of Section 8(a)(5) of the Act, subsequent to the
settlement agreement.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed against Perfect Service Gas Company, herein called Perfect or
the Respondent , in Case No . 22-CA-1366 on September 26, 1962, and in Case No.
22-CA-1527 on March 11, 1963, by Local 863, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America , herein called Local
863 or the Union , the General Counsel issued an order consolidating the cases and
a complaint alleging Respondent engaged in unfair labor practices in violation of-
Section 8 ( a) (1), (3), and (5) of the Act.
The answer denied that Respondent was engaged in commerce within the meaning-
of the Act and denied the commission of unfair labor practices.
This proceeding , with all parties represented , was heard before Trial Examiner
John F . Funke on July 25, 29, 30, and 31 and August 1, 1963, at Newark, New
Jersey.
Upon the entire record 1 in this case, and from my observation of the witnesses,.
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Perfect is a New Jersey corporation having its principal place of business at Free--
hold, New Jersey, where it is engaged in the sale and distribution of bottled gas and'
related products . During 1961 Perfect had a gross income in excess of $100,000 and'
made gross purchases in excess of $70,000.
Fuelgas Corp. is a New York corporation maintaining its principal place of busi-
ness at Chester, New York, where it is engaged in the purchase , sale, and distribution
of gas and related products . Fuelgas, during 1961, had a gross revenue in excess of-
$500,000 and made purchases of goods and materials in excess of $50,000 which were
transported to Chester directly from States other than the State of New York.
It was stipulated by the parties 2 that Perfect and Fuelgas had common ownership,
directors , and officers ; that the common officers , directors, and stockholders were
Morris Birnbaum , president , and Daniel Birnbaum , secretary-treasurer ; 3 that these-
officers directed the operations of Fuelgas and Perfect and formulated and admin-
istered labor policies affecting both corporations ; that Fuelgas and Perfect maintained'
separate offices and places of business located at the same street address at Freehold;
that each maintained separate books of account ; that the payroll for employees for-
both Fuelgas and Perfect were prepared at the Chester, New York , plant; that
Perfect bought all the gas which it distributed from Fuelgas although the gas was not
delivered from the Chester plant of Fuelgas but from the refinery located at Bayonne,
New Jersey.
On the terms of this stipulation I find that Fuelgas and Perfect constitute a single-
employer within the meaning of the Act .4 I therefore find the Respondent 's opera
i Respondent's motion to correct the record Is hereby granted.
2 General Counsel's Exhibit No. 2.
8 The stipulation is in error. Birnbaum was secretary-assistant treasurer.
' Overton Markets, Inc., et at., d/b/a Overton Markets, 142 NLRB 015 ; N.L.R.B. v.
Stowe Spinning Company, et at ., 336 U.S. 226; Schnell Tool t Die Corporation, et at., 144
NLRB 385, and cases cited.
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions meet the Board's jurisdictional standards for a retail enterprise and that it
would effectuate the policies of the Act to assert jurisdiction.5
H. LABOR ORGANIZATION INVOLVED
Local 863 is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The fact
1. Background
In June 1962 Perfect employed five delivery-service drivers and two clericals at
its Freehold plant . They were under the immediate supervision of Michael Dorey,e
who, in turn, received his general instructions from the Chester plant of Fuelgas.
During June the five drivers signed applications for membership in Local 863 and on
June 23 all five drivers voted in favor of representation by Local 863? Negotiations
between Local 863 and Perfect commenced on June 2 and following a meeting on
August 14 the drivers voted to strike. The strike began the next day and on Sep-
tember 23, 1962, Local 863 filed unfair labor practices against Perfect in Case No.
22-CA-1366. A complaint was issued by the Regional Director on November 9,
1962, and an informal settlement agreement was executed by the parties on Jan-
uary 18, 1963, and approved by the Regional Director on January 21.
The immediate issue presented is whether there has been a breach of that settle-
ment agreement. The General Counsel has advanced two contentions to establish
such a breach. The first is that the discharge of Christopher Dorey, a brother of
Mike Dorey, was discriminatory within the meaning of Section 8(a)(3) of the Act
and the second is that, subsequent to the settlement agreement , the Respondent re-
fused to bargain in good faith with Local 863 in violation of Section 8(a) (5) of
the Act.
2. The discharge of Dorey
Christopher Dorey had been employed by Perfect as a delivery and service man e
for a period of over 7 years when he was discharged on March 9, 1963. In June 1962
he joined Local 863, he went out on strike on August 15, 1962, with the other drivers,
and performed picket duty during the strike. Dorey returned to work with the other
drivers when the strike was terminated in January 1963. He was also a member of
the negotiating committee of Local 863 which was attempting to negotiate a contract
with Perfect .9 His union membership and activities were, therefore, well known to
Perfect.
Sometime in 1959 Chris Dorey was working with his brother on a tubing installa-
tion when the tubing pierced the wall and struck Chris in the eye. Mike Dorey testi-
fied that he made a written report of the accident to Chester, New York, the office of
Fuelgas. In addition to this written report Dorey testified that he had conversations
with Kenneth Quick, treasurer of Perfect, Daniel Birnbaum, and Bruce McCoach.10
The condition of Chris Dorey's eye became progressively worse and Mike testified
that Chris lost the sight of it, he believed, sometime in 1.962,11 and that this fact was
mentioned to Quick, Birnbaum, and McCoach.12 Apart from these reports Mike
testified that he forwarded to Fuelgas doctors' bills which he received from Chris.
5 Siemens Mailing Service, 122 NLRB 81.
6 Mike Dorey resigned from Perfect on March 31, 1963.
7 See stipulation of the parties, General Counsel's Exhibit No. 2.
8 Dorey testified that he delivered gas cylinders to customers and that he repaired hot
water heaters, stoves, furnaces, etc.
0 The testimony Indicates that all of the drivers attended negotiating meetings and that
Chris participated to no greater extent than the others.
10 McCoach testified that he was a salesman for Fuelgas.
11 Chris testified that he lost the sight in his eye in 1961. On October 19, 1961, Kenneth
Quick wrote the insurance carrier, Michigan Mutual Liability Company, requesting In-
formation respecting Dorey's claim and fixing the date of injury as September 11, 1959.
This letter indicates that Quick was aware at that time that the sight had been lost.
(General Counsel's Exhibit No. 5.)
18 This is denied by Quick, Birnbaum, and McCoach, despite the letter of Quick referred
to above. Quick explained this by stating that Dorey told him his brother had lost "some
fight of his eye."
PERFECT SERVICE GAS COMPANY, INC. 1689
According to the testimony of Chris Dorey a settlement of his workmen's compensa-
tion claim was effected in October 1962, and that he had stopped forwarding bills to
Perfect sometime before the summer of 1962. During a negotiation meeting on Feb-
ruary 13, 1963, Chris gave Daniel Birnbaum some bills for further treatment of his
-eye with the request that they be taken care of under Perfect's hospitalization cover-
age. According to Birnbaum the bills were submitted by a Dr. Pietri and Birnbaum
:requested a detailed list of the bills and a medical statement respecting Chris Dorey
,from the doctor. He further testified that such a statement was received by him in
the early part of March and that he then learned for the first time that Chris Dorey
had lost the sight of his eye. It was then that Birnbaum decided that, due in part to
.the volatile nature of the material Dorey was delivering, he was no longer employ-
able as a driver. This safety factor was the single reason given by Birnbaum for the
discharge of Dorey and he expressly denied that Mike Dorey had at any time in-
formed him of Chris' complete loss of vision. On Friday, March 9. Chris was ad-
vised in a letter from Mike Dorey that he was fired due to this loss of vision.13
3. The refusal to bargain
The parties stipulated that on or about June 23, 1962, an election was held among
-the five drivers for Perfect and that all five voted for representation by Local 863.14
Although the answer of Respondent neither admitted nor denied the appropriateness
of the unit as set forth in paragraph 16 of the complaint this issue was not litigated
by Respondent and I find the unit set forth therein appropriate.
The complaint alleges two specific allegations of violations of Section 8(a)(5):
-(1) Respondent refused to embody an existing welfare plan in any agreement reached,
-and (2) Respondent refused to embody an existing profit-sharing plan in any agree-
ment reached. It also contains a general allegation that Respondent refused to bar-
gain in good faith. Again the General Counsel must first establish a breach of Sec-
tion 8(a)(5) following the settlement agreement of January 1963.
Clifford Fredricks, business agent and organizer for Local 863, was the sole witness
for General Counsel on this issue. Fredricks, unfortunately, appeared to have kept
no notes of the meetings and his recollection of exactly what transpired at specific
meetings was faulty and confused. According to Fredricks the first meeting follow-
•ing the settlement agreement was held in early February at the Robert Treat Hotel in
Newark. (The meeting was held February 4.) He testified that Local 863 wanted
"to pick up from where we left off. The Company didn't want it that way." His
explanation of this is that the Respondent wanted to hear what the Union had to say.
He also stated that Perfect asked the cost of a 2-year contract.15 Among the union
demands were a 40-cent increase, 16 an added holiday, 3-day death benefits, and sick
leave. Local 863 also asked for information regarding the profit-sharing plan and
the welfare (hospitalization) plan which Respondent offered to provide. According
to Fredricks, Respondent still refused, as it had since the beginning of negotiations, to
put the plans in any contract.
The next meeting was held February 13. Respondent then offered 1 week's vaca-
tion after 1 year and 2 weeks' vacation after 3 years, a retreat from its previous posi-
tion of only 1 week for all employees. Fredrick stated that the Respondent agreed
to put the hospitalization in the contract but not the profit-sharing plan.17 Respond-
ent dropped the idea of a 2-year contract. Respondent, according to Fredricks, still
refused sick leave and stuck to its offer of a 10-cent increase. Another issue on which
there was disagreement was the retroactivity of any pay increase. On July 13, 1962,
the Respondent had agreed that any pay increase would be retroactive to July 11.18
17 General Counsel's Exhibit No. 4.
14 General Counsel's Exhibit No. 2.
16 Although prior discussions had considered only a 1-year contract I find no bad faith
in asking the cost of a 2-year contract . Absent evidence that Respondent knew or believed
a 2-year contract would be disadvantageous to the Union it is not an unreasonable pro-
posal . For the most part it is unions which seek longer term contracts . Respondent
abandoned this request at the next meeting.
11 The Union 's original demand was for an increase of about 90 cents.
17 Fredricks ' testimony is contradictory on this . At one point he testified the Respond-
ent agreed to put the plan in the contract at possibly the sixth or seventh meeting. He
then agreed it could have been the fifth meeting , which was the second after the settlement.
Birnbaum unequivocally testified the Respondent agreed at the second meeting after the
settlement and I so find.
18 General Counsel ' s Exhibit No. 6.
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fredricks testified that at the February 13 meeting Respondent informed him that it
was reneging on this agreement due to the strike.19 The third poststrike meeting was
held in either late February or early March and at this meeting, which according to
Fredricks was largely devoted to the mechanics of the profit-sharing plan, agreement
was reached on sick leave and vacations.
Fredricks testified that sometime prior to the last meeting Respondent increased its
wage offer to 121/2 cents per hour. This offer was rejected by Local 863 since it was
still based on a staggered workweek. Under this system one driver would start on
Monday, another on Tuesday, etc., and the Respondent refused to make Saturday a
premium or overtime day. The Respondent was willing to grant time-and-one-half
for all work in excess of 40 hours but it would not grant automatic overtime for
Saturday. Local 863 claimed the men would not receive overtime under the stag-
gered plan although it is not made clear and perhaps the local itself did not under-
stand why this would be so. There is no reason why there would not be as many
hours of work available for five drivers under either plan and overtime would be paid
regardless of whether the excess work fell on a Saturday. While Respondent agreed
to put the profit-sharing plan in the contract Local 863 objected to the plan itself on
the ground that it did not want its members "to buy a pig in a blanket." Since the
General Counsel agreed that there was no failure to provide adequate information
this statement has little meaning. In any event the reasons given by Fredricks for
his objections to the staggered workweek and the profit-sharing plan are so ambiguous
as to make any finding of bad faith on the part of Respondent impossible on these
issues.
Although Birnbaum was a clearer and more convincing witness I have set forth the
testimony of Fredricks because it is the testimony on which the General Counsel must
rely. I have quoted and shall quote the testimony of Birnbaum only where it is con-
tradictory or is required to clarify ambiguity.
B. Conclusions
1. The discharge of Dorey
In reaching a conclusion as to the discharge of Dorey I have not considered as
material the testimony that, on the day before the hearing in this case opened, Dorey
approached Perfect with an offer to "be gone" and to fail to appear as a witness at the
hearing for the sum of $5,000.20 Nor do I consider the alleged threats made by Mike
Dorey to the drivers that two employees, including his brother, might be fired on
the grounds of physical defects, if the men selected Local 863 as their bargaining
agent as establishing Birnbaum's motive in discharging Chris Dorey. Although
Mike Dorey was a supervisor and the threats would be binding upon Respondent if
I were considering them as violations of Section 8(a)(1),21 there is nothing in the
record to indicate that Birnbaum knew of these physical defects at the time the threats
were made or that he authorized them. While, therefore, they could be binding upon
him under Section 8(a)(1) they could not be binding to establish his subsequent
motive in discharging Chris. There is evidence, based on the testimony of Mike
Dorey and the letter of Quick to the insurance carrier, that Dorey advised not only
Quick but also Birnbaum of Chris Dorey's blindness sometime in 1962 and that he
kept working despite that knowledge. On the other hand, if Birnbaum was to seize
upon the blindness as a pretext for the discharge there is no reason why he should
have kept Chris working from June 23, when he acquired knowledge of the union
membership of Chris Dorey, until the strike, rehired him after the strike and kept
him working until March 9. There was no discrimination in regard to hire or con-
ditions of employment respecting any of the other strikers.
The inference that Chris Dorey was discharged for discriminatory reasons finds no
support in the record unless resort is made to violation of Section 8(a) (1) on the
part of supervisors prior to the settlement agreement and that evidence I do not be-
lieve competent until a breach of the settlement has been established. On the other
hand I do have the fact that Chris Dorey went to Birnbaum with his medical bills on
February 13 and that Birnbaum then asked for a report from Dr. Pietri and learned
ID The Respondent took the position that the strike had terminated negotiations and that
bargaining began de novo.
20 The General Counsel estimated the backpay which might be due as between $'800
and $1,200.
n There is no allegation of independent violation of Section 8(a) (1) following the
settlement agreement.
PERFECT SERVICE GAS COMPANY, INC. 1691
definitely in early March that Chris was blind in one eye 22 The date of his discharge
is proximate to the time this knowledge was acquired. The more reasonable infer-
ence to be drawn from these facts is that the discharge was not in violation of Sec-
tion 8 (a)(3) and I so find.
2. The refusal to bargain
I find no violation with respect to the two specific issues cited by General Counsel
as violative of Section 8(a)(5), namely, the refusal to incorporate the profit-sharing
and hospitalization plans into the contract. While there is evidence of such refusal
before the settlement agreement there is none thereafter unless Fredricks' testimony
is accepted that such a refusal occurred at the first meeting after the settlement
(February 4, 1962)23 Both Fredricks and Birnbaum are in accord that the Respond-
ent agreed to such incorporation at the second meeting held on February 13. 1 am
unwilling to find a violation which, if it occurred at all,24 lasted only for the period
from one bargaining meeting to the next and which was not an issue at the time of
the hearing. If the Board were to intrude at every bargaining session to evaluate
each position taken by the parties on each particular issue, however temporary that
position, its caseload would proliferate beyond manageable proportions (if, indeed,
it has not done so already) in the service of no purpose except the gratification of
administrative authoritarianism.
Nor do I agree that Respondent's general course of conduct indicated bad faith.
The General Counsel asserts that the Union "accepted" many of the Respondent's
proposals. This is a strained use of that word since the agreements reached on these
issues were reached as the result of negotiation and were "accepted" by both parties.
Thus, while the Respondent originally offered no sick leave and the Union requested
1 day per month, agreement was reached on 5 days per year. Respondent agreed to
seniority as to layoff and recall, but not as to promotions. The Union asked for
11 paid holidays and agreement was reached on 8 (there had previously been 7).
But there is little purpose in reviewing this case issue by issue to determine how much
Respondent should have conceded on this issue, how much on that, which demand
,of the Union was reasonable, and which was not. As has been stated above, that is
not the responsibility of the Board and would approach compulsory arbitration rather
than the prevention of unfair labor practices. It suffices to say that the parties
reached agreement on many issues and remained apart on others. The demands may
have been excessive on some of these, the Respondent's rejection adamant on others.
I have studied the testimony of Fredricks and Birnbaum with relation to the bargain-
ing negotiations from the meeting of February 4, 1963, to the last meeting with care.
I cannot find that Respondent, by the totality of its conduct during this period, in-
dicated a refusal to bargain in good faith.
In view of my finding that the Respondent did not engage in unfair labor practices
as alleged in Case No. 22-CA-1527, I find it unnecessary to consider whether it com-
mitted unfair labor practices in Case No. 22-CA-1366. There has been no sub-
sequent breach of the settlement agreement in that case and the agreement remains in
full force and effect.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the Act.
2. Local 863 is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices in violation of Section
S(a)(1), (3), and (5) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
22 Dr. Pietri was not called as a witness by either party.
03B1rnbaum testified that the Respondent made no response to the Union's proposals at
this meeting but told the Union the Respondent would consider them.
24I make no finding upon the qualification imposed by Birnbaum that the incorporation
be subject to approval by the Treasury Department. There is no evidence that Birnbaum
knew that such approval was not required (nor any evidence that it was not, in fact,
required) and no evidence that the qualification was suggested in bad faith.
O