Petrolane-Franklin Gas Service, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1969

174 N.L.R.B. 594 (N.L.R.B. 1969)

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petrolane-Franklin Gas Service , Inc. and
Miscellaneous Drivers and Helpers Union, Local
610, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and
Helpers of America
Petrolane-Franklin Gas Service , Inc. and James L.
Goodbar . Cases 14-CA-4542, 14-CA-4620, and
14-CA-4668
February 18, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 25, 1968, Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and Respondent
filed exceptions to the Trial Examiner's Decision
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner, as
modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Petrolane-Franklin
Gas Service, Inc., St. Clair, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified.
As the Trial Examiner properly dated the unlawful refusal to bargain on
July 18, 1967, the commencement of the 10 (b) period, we find that the
remedy should also take effect as of that time rather than on March 24,
1967, when the Union won the representation election
Contrary to the General Counsel, we do not deem it necessary to spell
out in the cease and desist order or the Notice the various elements of
Respondent conduct which were found by the Trial Examiner to constitute
the unlawful refusal to bargain.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Trial Examiner- These consolidated
cases were tried before me in St. Louis, Missouri, on July
16 and 17, 1968, upon an amended complaint issued
against Respondent, Petrolane-Franklin Gas Service, Inc.,
on June 4, 1968. The amended complaint was based upon
charges filed by Miscellaneous Drivers and Helpers
Union, Local 610, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, on
January 17 and March 27, 1968 and by James L.
Goodbar on May 6, 1968, and alleges that Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(1), (3), (4), and (5) of the Act. Respondent
filed an answer, denying that it had engaged in any of the
unfair labor practices alleged. Subsequent to the hearing
counsel for the General Counsel and for the Respondent
filed briefs, which have been carefully considered.
Upon the entire record in this case, and from my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
L THE BUSINESS OF RESPONDENT
Respondent is a Missouri corporation, having its
principal office and place of business, including a
warehouse, store and bulk plant, in St. Clair, Missouri,
where it is engaged in the sale and distribution of L-P gas,
petroleum products, cooking and heating appliances and
other related products to residential and industrial
consumers. Respondent is a wholly owned subsidiary of
Petrolane Gas Service, Inc., herein called Petrolane, a
California corporation with the principal offices located in
Long Beach, California. At all times material herein
Respondent and Petrolane have had common officers,
owners, directors and operators. Said officers, directors
and operators administer a common labor policy affecting
the employees of Respondent and Petrolane.
During the 1-year period ending December 31, 1967, a
representative period, Respondent and Petrolane sold gas
valued in excess of $500,000. During the same period
Respondent and Petrolane purchased and caused to be
transported and delivered to Respondent's Missouri places
of business, directly from points outside the State of
Missouri, L-P gas, petroleum products, cooking and
heating appliances and other goods and materials valued
in excess of $50,000.
Upon the above facts, which were stipulated, I find that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
IL THE LABOR ORGANIZATION INVOLVED
It is undisputed and I find that the Union is a labor
organization within the meaning of Section 2 (5) of the
Act.
174 NLRB No. 88
PETROLANE FRANKLIN GAS SERVICE 595
III. THE UNFAIR LABOR PRACTICES
A. The Issues
Following a representation election on March 24, 1967,
the Union was certified on April 3, 1967, as the
bargaining representative of Respondent's four employees
in a unit consisting of the drivers, servicemen, helpers and
meter readers at Respondent's St. Clair, Missouri,
facilities. It is alleged that Respondent thereafter failed
and refused to bargain in good faith with the Union (1) by
failing and refusing to meet at reasonable times and places
and with reasonable frequency; (2) by failing to submit
promised counterproposals; (3) by repudiating agreements
made in prior negotiations; (4) by failing since about
March 20, 1968, to provide a representative with authority
to negotiate and reach an agreement; and (5) by engaging
in numerous acts of interference, restraint and coercion
which were independently in violation of Section 8(a)(1) of
the Act and which were designed to undermine and
destroy the Union's majority status. It is also alleged that
Respondent unlawfully discharged employee James L.
Goodbar on May 3, 1968, because he had engaged in
protected union and concerted activities and gave a
statement to a Board agent who was investigating a
charge which the Union had filed.
There is no substantial dispute regarding most of the
subsidiary facts. The principal issues arise in drawing the
proper inferences from these subsidiary facts.
B. Acts of Interference, Restraint, and Coercion
following the Selection by Respondent's Employees of
the Union To Represent them
1. Background
The General Counsel contends that beginning
immediately after the Union won the election and
continuing throughout the certification year, Respondent
engaged in coercive conduct designed to induce the
employees to repudiate the Union as their bargaining
agent.
It is undisputed that on March 24, 1967, immediately
after the election, Respondent's vice president and
regional manager, Gerald G. (Jerry) McCaffrey, in the
presence of District Manager Robert W. (Bob) Sullentrup,
had a conversation with employee Obermark,
Respondent's most senior employee, in Lewis' Cafe near
Respondent's offices. McCaffrey told Obermark that he
did not understand why the Union was voted in.
Obermairk replied that working conditions had a lot to do
with it. McCaffrey then asked if Lawrence Ware, a
former employee, had been "pressuring" the employees.
Obermark replied that he could never understand why
Ware had been fired and McCaffrey explained that
Respondent was "afraid at that time that something like
what happened today was going to happen to them."
McCaffrey's remark was obviously intended to leave
Obermark with the impression that Ware had been
discharged for proselytizing for the Union and was an
implicit threat of what might happen to others who might
be too active in support of the Union.
Shortly after the election, District Manager Sullentrup
approached employee Hinson at his work, asked him how
he felt about the Union, whether it had done anything for
the employees and whether they had beard from the
Union. Later, during the summer, after having been told
by one of the employees that Sullentrup had suggested
that anyone interested in getting out of the Union should
see him at his home , where he was on vacation , Hinson
went to Sullentrup ' s home. Hinson gave the following
undenied and credited account of what was said on that
occasion:
Q. What was said during that conversation?
A. He wanted to know what I would have to have to
get out of the Union , and I told him I really hadn't
made up my mind . I wanted to know what they would
give, and he said I had two raises coming, and they
would give me them, that is all he would offer me. And
then he came up to one more figure.
Q And that was if you got out of the Union?
A. Yes.
Beginning in May and continuing throughout the year, the
Union was attempting fruitlessly to set up bargaining
conferences with Respondent . Sullentrup 's statements to
Hinson in these circumstances were clearly intended to
cause his disaffection from the Union and his rejection of
it as his bargaining representative.
No unfair labor practice finding is based upon the
conduct of Sullentrup or McCaffrey, described above,
because such a finding would be barred under the
limitations proviso to Section 10(b) of the Act. However,
this evidence is relevant as background to throw light
upon Respondent ' s motivation in connection with the
unfair labor practices alleged in the complaint.
2. McCaffrey's interview with employee Sullivan
In August 1967, about 2 days after Dale Sullivan had
been hired by Respondent as a serviceman, he was taken
by Sullentrup to Salem, Illinois, for an interview by
McCaffrey. During the conversation Sullivan asked
McCaffrey what the union situation was at Respondent's
facilities and McCaffrey replied that the Union had been
voted in. He asked Sullivan how he felt about unions.
Sullivan replied that he had only belonged to one union
,,and it was more or less an excuse for not belonging to a
union." McCaffrey explained that Respondent would have
to negotiate with the Union but that did not mean that
Respondent would have to sign a contract. Before being
employed by Respondent, Sullivan had just sold a small
business which he had owned and operated. McCaffrey
asked him if he would have wanted a union in that
business and Sullivan replied that he would not because it
was a small business. McCaffrey replied, "We don't like
unions either" and stated that Respondent did not need a
union.' In the context of McCaffrey's expressed dislike of
unions, his voluntary remark that the fact that
Respondent had to bargain with the Union did not mean
that it would have to sign a contract, could reasonably be
interpreted by Sullivan as an expression of an intent to
avoid signing an agreement with the Union. This
interpretation is borne out by Respondent's concurrent
and subsequent dealings with the Union, hereinafter
related. McCaffrey's statement accordingly constituted a
threat of the futility of having a union represent the
employees and, as alleged in the complaint, was an
unlawful interference with the employees' 'right to be
represented by a union.
'The occasion for calling Sullivan to Salem for an interview, according
to the credited testimony of McCaffrey , was McCaffrey's view, upon
studying Sullivan's application for employment , that Sullivan might be a
potential district manager . He was still of this view at the conclusion of the
interview
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Meetings of Sullentrup and Meador with the unit
employees
On January 3, 1968, Respondent's four employees met
with Sullentrup before work one morning to discuss their
dissatisfaction with working conditions. Among other
things, they asked Sullentrup why the employees at
Petrolane's Sullivan operation (who were not represented
by a union) were making more money than they were and
Sullentrup, pointing successively to each of the three
employees who were working at the time of the election
(Goodbar, Obermark and Hinson ), said , "You know, you
know, and you know why, because the Union was voted
in " At the time Sullentrup made this statement, he and
the Union had not yet been able to agree upon a date on
which they could sit down and bargain regarding the
wages and other working conditions proposed in the
Union's May 8, 1967 letter to Respondent, and as shown
infra, Respondent had been refusing to bargain in good
faith. Accordingly, Sullentrup's attempt on January 3, to
blame the Union for the employees' failure to receive as
much money as the nonunion operation at Sullivan, was
patently unlawful coercion of the employees in the
exercise of their organizational rights?
Shortly thereafter, on January 17, 1968, the Union filed
an unfair labor practice charge against Respondent,
alleging, inter alia, that it was unlawfully refusing to
bargain. Thereafter on February 19, 1968, the Union and
Respondent had their first bargaining conference.
Following that conference the parties entered into a
settlement agreement covering the unfair labor practice
charges. Thereafter between February 26 and March 26,
the parties held three more bargaining conferences. During
this period, as shown below, another representative of
Respondent, Francis Meador, made statements and
proposals to the employees, tending coercively to induce
them to repudiate the Union.
During the afternoon of March 14, Meador, Petrolane's
sales manager responsible for the promotion and
management of retail sales at Respondent's operations as
well as in 24 other Petrolane districts covering five states,
came to St. Clair and talked to Respondent's employees
about their various complaints and the Union. Meador's
headquarters are in Salem, Illinois, where Regional
Manager McCaffrey also has his headquarters, but
Meador visits the St. Clair, Missouri, operations, about
every 6 weeks. It is necessary for him to rely heavily upon
the drivers and servicemen at each operation in carrying
out his sales promotional duties and the employees'
morale, enthusiasm and efficiency are matters which
concern him as well as Respondent's local management.
Meador testified that his purpose in coming to St. Clair
on March 14, was to talk to District Manager Sullentrup
about a training program in connection with selling
kitchen ranges but he became sidetracked from that
purpose. While he was waiting for Sullentrup, employee
Goodbar walked into the office and Meador invited him
to a nearby cafe for a cup of coffee. Meador asked
Goodbar "how things were going" with the men and
Goodbar told him that they all needed more money, that
Goodbar had not received the raise in wages which was
due him and that he and the other employees did not
know what was going on and had no one they could talk
to.3 Meador then asked Goodbar what chance he thought
there might be of the men voting the Union out. Goodbar
'Other coercive conduct by Sullentrup around this period is treated infra
in connection with a recital of the events leading to Goodbar's discharge.
replied that he did not know and that Meador would have
to ask them Meador volunteered to talk to the rest of the
men if Goodbar could arrange to have them at the
warehouse at 4:30 that afternoon.
Pursuant to Meador's suggestion, all four men in the
bargaining unit did meet with Meador at the warehouse at
4:30 p.m. Meador assured them that they could say
anything that they wanted to and he would not betray
their confidence. He told them that he understood that
they were having problems and that he would like to help
solve them. One of the matters complained of was the
employees' wages. Obermark asked Meador why
Respondent's St. Clair employees were not earning as
high wages as the employees in Petrolane's nearby plants
(the Sullivan operation about 25 or 26 miles away and the
Washington operation about 12 miles away). The men
also complained of long hours they were working and of
having to stand by at home for emergency telephone calls
without being paid for such time. Meador appeared to
sympathize with their complaints. He stated that he did
not think all four men could be wrong or troublemakers.'
He asked the men if they had thought of voting the Union
out and expressed the view that if they did, they could
have the same wage rates as the Petrolane employees at
other plants and have their hours cut to about 40 in the
summer and 48 in the winter, with time and one-half for
overtime. He stated that if the employees wanted another
election, he would try to arrange it He asked Obermark
what the employees would have to have in round figures
to get out of the Union and Obermark replied "500, 550,
600."
,Meador then invited all the men to dinner and all
except Sullivan, who had a previous engagement,
accepted. Along with beer and steaks, the men continued
their discussion. Meador told the men that it was not
company policy to pay for standby time when the
employees were required to stay at home to receive
emergency calls but he sympathized with their complaint
and expressed a view that it should be the district
manager's job to take such calls. When the men voiced
some complaints about Sullentrup, Meador stated that he
could be replaced and that the business could be turned
over to the men to run. To the proposal that Sullentrup be
replaced, Obermark replied that Sullentrup was better
than the former district manager and Goodbar said, "No,
I do not want to see Bob lose his job or be transferred."
Meador told the men that if they wanted the Union out,
he would see that they got raises and that he would try to
get them whatever price they named up to $700 a month
but warned them that they had better not fill in their
paycheck for more than they were worth or they might be
dismissed. He told them that if they voted the Union out,
he would go to McCaffrey and, if necessary, over
McCaffrey's head to the president of the Company to get
the men the working conditions they were requesting.' At
'In the early part of March, Sullentrup had written McCaffrey a letter,
which all the employees saw, in which Sullentrup asked McCaffrey, "How
do I tell the guys here that we want to give them an increase ," and stated
"They haven' t received a raise for about a year now. They are way
overdue." Shortly thereafter employee Sullivan, in the presence of
employee Hinson, asked McCaffrey and Sullentrup about the meaning of
the letter and why Sullivan had not received an increase but he received no
explanation.
'As noted, infra, District Manager Sullentrup had accused Goodbar of
being the troublemaker
'As employee Obermark explained at the hearing , he knew that Meador
did not himself have authority to put into effect what he was proposing to
do for them but he hoped that by talking to Meador the men might be
PETROLANE FRANKLIN GAS SERVICE 597
the completion of the dinner Meador drove the men back
to the office and, in parting, asked them to think about it
and let him know whether they decided to vote the Union
out. He gave Goodbar his business card.
On the following day, March 15, Meador stopped
Sullivan on his route and told him some of the things he
had told the other three employees at the dinner which
Sullivan missed. He mentioned, among other things, that
he thought he could clear up the salary problem if the
men would decide how much they wanted and would fill
in a- form stating the amount they thought they should
have but warned that if the figure was too high,
Respondent would have to let them go. He asked Sullivan
to think about it and let him know what the men had
decided.
Meador met with the four employees again at the
warehouse toward quitting time on April 2. He asked
whether they had reached any decision on the proposition
he had made to them at their last meeting. They indicated
that they were concerned about their job security and
asked how long they would have their jobs if they acceded
to his proposal to vote the Union out and then wrote their
own salary checks in amounts not to exceed $700 a
month. Meador replied that Respondent would put
sufficient money in a bank as security to pay them for at
least a year. He explained that Respondent needed them,
that they were trained and that Respondent could not go
on the street and find replacements for them. The
employees then asked him other questions, - why they
were not getting the raises which were "coming" to them,
why the employees at other Petrolane facilities nearby
were making more than those at St. Clair, why employee
Sullivan (who had been hired subsequent to the Union's
certification) was being paid more than the other St. Clair
employees, and whether Respondent was negotiating with
the Union in good faith.6 Except to state that the
employees' salaries would be increased if they voted the
Union out, Meador professed not to know the answers to
the other questions He promised, however, to try to find
the answers.
On April 4, Meador again met with the four employees.
He told them that he had talked to McCaffrey and had
the answers to some of the questions which he could not
answer at his previous session with them.? With respect to
the overdue raises in pay about which the men had been
complaining, he explained that Respondent could not
grant the raises then because the employees had voted the
Union in and Respondent had to negotiate with the Union
about salaries, starting with their current salaries. Meador
told them that in^ the nearby Washington operation of
Petrolane, the salary increase "matter was taken care of"
because there had been a representation election and the
Union had been voted out. He told them that Sullivan had
been hired at a higher salary than the other employees
were receiving because Respondent believed he had
management capabilities. He also told them that
getting through to McCaffrey and having some decisions made by the
latter. Hinson similarly testified that he understood that Meador himself
could not change working conditions but Hinson talked to hun because
Meador "said he would try to help us."
'After each bargaining session Union Representative Boyer or Kuper
would call one of the four employees in the unit , give a report on what had
happened , and that employee would then inform the other employees. The
employees therefore presumably knew when meeting with Meador that
bargaining negotiations had terminated on Maich 26, with an
announcement by the union representatives that they did not believe that
Respondent was bargaining in good faith and that the Union intended to
file unfair labor practice charges.
Respondent was going to negotiate in good faith and that
Sullentrup had full authority to negotiate.'
On March 20, shortly after one of the meetings between
Meador and the employees, District Manager Sullentrup
sought out employee Goodbar at the bottle dock and
asked him what Meador had wanted. Goodbar said that
they had discussed the Union. Sullentrup then stated that
Petrolane could ask for another election. Goodbar replied
that the employees were not going to ask for one.
Sullentrup then asked Goodbar how the employees would
feel about another election. Goodbar responded that he
had not talked to any of the employees about it and did
not know how they felt. Sullentrup asked for Goodbar's
opinion and Goodbar stated that he had not thought
about it and could give no opinion at that time.
Meador's attempts to induce the employees to reject the
Union as their bargaining agent in order to obtain
increases in pay and other better working conditions and
his promises to do what he could to help them in these
respects, even going over the head of Regional Manager
and Vice President McCaffrey to Respondent's president,
if necessary, if the men would vote the Union out, were
patently coercive. Meador's conduct also constituted an
unlawful attempt to bargain individually with the
employees, in derogation of their right to be represented
by their chosen bargaining agent Respondent seeks to
exculpate itself from responsibility for Meador's conduct
by contending he had no authority himself to put into
effect the working conditions he discussed with the men
and no authority to make the statements or promises
which he made to them. However, Meador was a
responsible representative of Respondent. The men's
morale and efficiency were important factors in enabling
him to function effectively as retail sales manager and he
was acting in the interest of Respondent in taking the
action he did. He was, moreover, closely identified with
management in the eyes of the employees. Respondent
accordingly is responsible for his actions described above,
which, it is found, were in violation of Section 8(a)(1) of
the Act. N.L R.B. v. Solo Cup Company, 237 F.2d 521,
523-524 (C.A. 8).
Also coercive and an unlawful interference with the
employees right to be represented by their bargaining
representative was Sullentrup's interrogation of Goodbar
on March 20 about how the employees felt about another
election and his statement that Petrolane could ask for
another election.
'Meador testified that he did, indeed, talk to McCaffrey about a morale
problem existing at the St. Clair operation but did so only in a general
way without betraying the confidence of any employee and that he did not
divulge any specific complaint that the employees had He stated that he
asked McCaffrey whether Respondent was bargaining in good faith with
the Union and received an affirmative reply. McCaffrey testified that he
discussed the morale problem at St. Clair with Meador only insofar as the
problem might affect Meador's sales efforts; that Meador reported that the
employees were demoralized and antagonistic toward their local manager,
Sullentrup , because they felt there was an unequality in the workload and
salaries being paid at St. Clair and in adjoining Petrolane districts
According to McCaffrey , he and Meador then discussed "the general
philosophy regarding the differences in rates of pay between two adjoining
locations."
'The findings regarding Meador's conversations with the men are based
upon the composite , mutually corroborative and credited testimony of
Goodbar, Hinson, Sullivan , Obermark and Meador. Although some
witnesses remembered more than others and there are some slight
differences in their accounts of what happened , there is little dispute as to
the essential facts
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Respondent's Unlawful Refusal To Bargain
1. Background: Early attempts by the Union to
bargain
Following the Union's certification on April 3, 1967, as
the bargaining representative of Respondent's employees
in the unit found appropriate, Union Representative Jack
Kuper, on May 8, 1967, wrote Respondent's district
manager, Sullentrup, stating that he was enclosing a copy
of the National Master Freight Agreement and the
Central States Area Local Cartage Supplemental
Agreement expiring on March 31, 1967; that the
replacement for this contract was then being voted on;
that the replacement contract provided, among other
benefits specifically mentioned, for a 25 cents an hour
increase for the first year and 15 cents an hour increases
for the following 2 years. Kuper proposed that the
replacement contract be accepted as the contract for
Respondent's employees. The enclosures referred to and
described in this letter were apparently not in fact
enclosed.
Shortly after mailing this letter, Union Representative
Kuper arranged with Respondent's district manager,
Sullentrup, for a bargaining meeting to be held on May
15
On May 11, however, Sullentrup wrote Kuper,
canceling the May 15 meeting because of a conflicting
engagement and promising to get in touch with Kuper the
following week to set up another meeting date.'
On May 17, Sullentrup wrote Kuper suggesting a
meeting on Wednesday, May 24, at 4:45 p.m. Kuper
notified Sullentrup by telephone that he could not meet at
the suggested time because that would fall on the ^ fourth
Wednesday of the month when the Union had meetings
starting at 6:15 in the evening. Kuper suggested that they
meet on May 29 instead. Sullentrup did not commit
himself over the telephone. Instead, he wrote Kuper on
May 23, that he would be unable to meet on May 29 but
could meet on Friday, May 26, at 3:30 or 3:45 p.m.
Kuper did not see this letter until he arrived back in St.
Louis from an out-of-town trip at noon on May 26 and he
had his secretary call Sullentrup and tell him that the
Union would be unable to meet that day.
Later Kuper and Sullentrup arranged by telephone for
a meeting on Monday, June 19. This meeting was held at
Respondent's bulk plant in St. Clair at about 2:30 or 3
p.m. Union Representatives Kuper and Boyer and an
employee member of the bargaining committee, Bob
Wideman, were present for the Union.1° Sullentrup was
the sole Respondent representative present. At this
meeting Sullentrup, for the first time, disclosed that he
had not received the copies of agreements which the
Union had purported to enclose with its May 8 letter and
Kuper, during the meeting, supplied Sullentrup with a
copy of each as well as with a summary of the changes in
the old contract. The meeting lasted only 15 or 20
minutes. Sullentrup stated that the proposed contract was
lengthy and that he would like to look it over and check
with other representatives of Respondent about it, then get
'The Union representatives had their headquarters in St. Louis, about 65
miles from Respondent 's offices in St Clair, and in attempting to set up
bargaining conferences , the parties had to communicate by letter or
telephone. Most of the time, as shown below, the Union would attempt to
communicate with Sullentrup by telephone Sullentrup on the other hand,
seldom committed Respondent to a date by telephone and would instead,
respond later by letter, thereby precluding a discussion and quick
agreement upon a mutually satisfactory meeting date.
in touch with the Union again.
The occurrences above described took place prior to
July 18, 1967, the cut-off date under the limitations
proviso to Section 10(b) of the Act and no unfair labor
practice finding is based on any employer conduct
occurring prior to July 18. The evidence above recited,
however, is relevant as background in helping to
understand what occurred thereafter. .
2. Unsuccessful attempts to arrange bargaining
conferences prior to filing by the Union of its first
unfair labor practice charge on January 17, 1968
After waiting in vain for a month for Sullentrup to
study the Union's bargaining proposals and get in touch
with the Union, as Sullentrup had promised to do, Union
Representative Boyer, on July 20, telephoned him to
inquire whether he had finished studying the contract and
was in a position to negotiate. Sullentrup replied that he
had not completed his study of the proposals and would
get in touch with Boyer when he had done so.
About mid-August, still having received no word from
Respondent, Boyer again called Sullentrup. Sullentrup
explained that he still had not had an opportunity to look
over the proposals fully or to be in touch with
Respondent's regional manager and vice president,
McCaffrey, about it. He stated that he would get in touch
with the Union after he had seen McCaffrey. This was
apparently the first time Respondent had given any
indication that McCaffrey would be involved in the
bargaining
In early September, Boyer again called Sullentrup,
stated that "it was getting late" and inquired about
Sullentrup's intentions. Sullentrup replied that he was still
trying to get in touch with McCaffrey but that business
commitments had made McCaffrey unreachable.
Shortly thereafter, in late September, Boyer sought the
aid of the Federal Mediation and Conciliation Service in
attempting to arrange bargaining conferences. Thereafter,
on October 7, Sullentrup wrote Boyer enclosing an
interoffice communication from McCaffrey regarding his
business schedules, and informing Boyer that McCaffrey
would not be available for a meeting until October 31. He
suggested Tuesday, October 31, or Wednesday, November
1, at 4:30 p.m. as meeting dates. Boyer replied on October
10, stating that the October 31 date would be fine but
requested that the meeting be in St. Louis at the Union's
office since previous proposed meetings at the St. Clair
bulk plant had been canceled.
On October 24, Sullentrup wrote Union Representative
Kuper that there had been "another change in plans"
since he had talked to Kuper over the telephone on the
previous day. He explained that an October 26 date
apparently agreed to on the, telephone was "out" because
McCaffrey would be unavailable then but stated that
McCaffrey would still be able to attend the previously
proposed October 31 meeting. He proposed that if
October 31 was not agreeable, Respondent could meet at
4:30 p.m. at the St. Clair bulk plant on Friday, November
3 or Friday, November 10.
By telephone Union Representative Boyer advised
Sullentrup that he would be unable to meet at 4:30 p.m.
on Tuesday, October 31. Sullentrup then wrote Boyer on
October 30, suggesting a 4 p.m. meeting on November 6
or 7 or 10, at the St. Clair bulk plant.
"Wideman was subsequently discharged and neither he nor any other
employee ever thereafter attended a bargaining conference
PETROLANE FRANKLIN GAS SERVICE 599
On November 2, Boyer wrote Sullentrup reminding him
of reasons previously stated as to why Boyer and Kuper
..ould not meet as late as the 4 or 5 p.m. suggested hours
on October 31 or any of the other dates proposed by
Sullentrup, namely that the local was "a Miscellaneous
Local necessitating numerous meetings throughout the
month all of which are scheduled in the evening." He
expressed a willingness to meet on any day during the
week of November 6 at an earlier hour so that the parties
would have a reasonable time to negotiate and so that the
union representatives could be back in St. Louis about 65
miles away in time for their union meetings."
Sullentrup replied by letter to Boyer dated November 2
that McCaffrey would be available for a meeting in St.
Clair at 3 p.m. on Friday, November 10, and suggested a
meeting at that time.
Sullentrup wrote Boyer again on November 9, stating
that since he had received no confirmation from the
Union as to the proposed November 10 meeting date, he
had informed McCaffrey that it would be unnecessary for
him to attend. He proposed a new date, Friday,
November 17, at 3 p.m. at the St. Clair plant.
On November 15, Sullentrup again wrote Boyer,
referring to a telephone conversation had between the two
of them on November 10, and Boyer's promise to call
Sullentrup about a confirmation of the proposed
November 17 date. Sullentrup informed Boyer that he
told McCaffrey on the preceding day about not having
received a confirmation from the Union as to the
proposed November 17 date and that McCaffrey had
decided to remain in Indiana for the balance of the week
Sullentrup stated that the following week would be a busy
one for both himself and McCaffrey and pioposed another
meeting date, Friday, December 1, at 2 p.m.
The record does not show what, if any, response the
Union made to Respondent's letter of November 15.
However, in early December, Federal Mediation
Commissioner O'Keefe informed Boyer that he had had
difficulty in getting in touch with anyone from
Respondent but had finally talked to someone. He
suggested that the Union again try to set up further
bargaining sessions. The Union, instead, filed an unfair
labor practice charge against Respondent on January 17,
1968, alleging that Respondent had refused to bargain in
good faith.
3. Bargaining conferences subsequent to the filing of
unfair labor practice charge
Following the filing of the unfair labor practice charge
already mentioned, the parties finally held a bargaining
conference on Monday, February 19, 1968. Participating
were Boyer and Kuper for the Union and McCaffrey and
Sullentiup for Respondent. Boyer asked McCaffrey if he
had had an opportunity to study the Union's proposals
submitted on June 19, 1967, and was ready to make
recommendations for counterproposals. McCaffrey replied
that he had studied the proposals and did not believe that
they quite fitted Respondent's operations. Kuper
responded that the proposed contract might not fit
"McCaffrey testified that during the summer and early fall when he was
busy much of the tune in Wisconsin and other States negotiating the
acquisition of new business locations for Petrolane , he would normally fly
to St. Louis enroute to his Salem, Illinois, headquarters, arriving in St
Louis at about 10 a.m. and that he would have been available for
negotiations with the Union "on Friday afternoons any where in the St.
Louis area." Neither he nor Sullentrup , however , informed the Union of
this fact
Respondent's type of operation but that some items were
basically the same in all contracts and suggested
discussing those items. Among other things, the parties
discussed health and welfare, a pension program and
wages, but no agreement on any of these items was
reached. Pursuant to McCaffrey's request that
Respondent be furnished with a copy of a contract with
employers whose operations more closely resembled
Respondent's operations, the Union representatives agreed
to send Respondent copies of the Union's contracts with
Tuloma Gas Company and Geldbach Petroleum
Company. At McCaffrey' s suggestion , it was agreed that
when a copy of the contract more nearly applicable to
Respondent's operations was received, it would be
discussed point by point, that marginal notes would be
made and that thereafter a proposed contract would be
typed up and resubmitted. McCaffrey stated that any
contract agreed upon during the negotiations would have
to be approved by him whether or not he was present
during the negotiations. At Respondent's request the
parties agreed that the next meeting would be held in
Carlyle, Illinois (about 100 miles from St. Clair and about
50 miles from St. Louis) on February 26.
Following the February 19 bargaining conference, a
settlement agreement covering the pending unfair labor
practice charge was entered into and approved by the
Board's Regional Director. Respondent posted
appropriate notices at its facilities as a part of the
settlement agreement.' 2
The next bargaining conference was held on Monday,
February 26, at Carlyle, Illinois, as agreed upon, with the
same parties participating. The meeting lasted about 2
hours. The Union representatives had neglected to mail to
Respondent copies of the Tuloma and Geldbach contracts
which they indicated they would send but brought copies
with them to the meeting. It was decided that the Tuloma
contract more nearly related to Respondent's operations
and it was used as a basis for negotiations. The parties
started discussing the contract provisions from the
beginning and some areas of agreement were found.
During the meeting Respondent's representatives
mentioned that they would like to refer the Tuloma
contract to Petrolane's California office for study. The
parties agreed to and did meet again on March 4.
At the March 4 meeting, which was held in St. Clair,
the same parties were present. They started discussing
terms of the Tuloma contract where they had left off at
the previous meeting. Respondent offered a few oral
counterproposals and some further progress appears to
have been made. With respect to the Tuloma contract
provision for 8 paid holidays, Respondent's representatives
explained that Respondent was then granting only 6 paid
holidays and that 2 more was "a little bit too much, that
they could possibly agree on one." The Union
representatives then proposed a paid holiday to fall on the
employees' birthday and, according to the credited
testimony of Kuper and Boyer, this proposal was agreed
upon. Respondent's representatives, during the course of
the meeting, told the Union representatives that with
respect to some or a majority of the items in the Tuloma
contract, Respondent would have to check with its
"On May 7, 1968, however, the Regional Director, after investigating a
further charge filed by the Union on March 27, 1968, alleging violations of
Section 8(a)(1) and (5) of the Act, issued an order revoking approval of the
settlement agreement and thereafter issued a complaint which alleged
presettlement as well as postsettlement unfair labor practices by
Respondent
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attorney in California. At the conclusion of the meeting,
at Kuper's request, McCaffrey agreed that Respondent
would submit its own proposal where the Union proposal
did not fit Respondent's operation and would submit a
counterproposal on provisions which Respondent could
not agree to. McCaffrey stated that he would try to
supply the Union with Respondent's complete proposal
for an agreement at the next meeting. March 20, was set
as the tentative date for the next meeting.
On the morning of March 20 (the same day that
Sullentrup inquired of employee Goodbar as to how the
employees would feel about another election) Union
Representative Boyer telephoned Sullentrup and inquired
whether the meeting for that afternoon was "still on."
Sullentrup stated that he guessed that it was but that
McCaffrey would not be present. Boyer then asked
whether Sullentrup had authority to negotiate or reach
agreements and Sullentrup replied that he did "to a
point." Boyer asked what Sullentrup meant by that
remark but Sullentrup did not respond. Boyer then
suggested that maybe Sullentrup did not really have
authority to negotiate and that it might be best to wait
until McCaffrey was available. The parties then agreed to
meet on March 26, when it was believed that McCaffrey
would be available.
On the morning of March 26, Boyer again telephoned
Sullentrup to confirm the meeting date for that afternoon
and Sullentrup informed him that the meeting was "still
on" but that again McCaffrey would be unable to attend.
Boyer then repeated his inquiry as to whether Sullentrup
had authority to negotiate and Sullentrup replied "to a
point." Boyer replied that the Union representatives would
come to the meeting and see if the parties could reach any
informal agreements.
At the March 26 meeting, which was held at the
Knights of Columbus hall in St. Clair, Sullentrup did not
submit Respondent's own proposed contract which
McCaffrey had promised at the previous meeting that
Respondent would try to supply. Sullentrup mentioned
that he had called Respondent's attorney in California "to
get confirmation on some of the articles" in the Union's
proposed contract but that because of construction work
going on in the background, he could not hear anything
the attorney said. The parties started reviewing the items
in the Tuloma contract which had been previously agreed
upon. When they reached the provision for a seventh paid
holiday, which was to be the employees' birthday,
Sullentrup remarked that his notes did not indicate any
agreement on that subject, and that he did not remember
agreeing on that subject. The Union representatives then
turned to a discussion of the Union's proposed health and
welfare plan and told Sullentrup what it would cost.
Sullentrup replied that the- plan was not sufficiently
adequate to justify the cost and stated that he could buy
the coverage cheaper. The Union representatives then
asked Sullentrup to explain his plan and how much it
would cost, but Sullentrup gave no specific information
regarding any such plan, merely repeating "that he could
buy a better plan cheaper." With respect to some of the
Union's contract proposals, Sullentrup expressed a
willingness only to agree to Respondent's current practice
or what the law required any way. Sullentrup stated that
he had no authority to make an agreement on a couple of
other proposals made by the Union. During the
discussion, a car drove into a lot outside of the building
and Sullentrup arose to see who was in it. At that point,
the Union representatives stated that they believed that
Respondent was stalling and not negotiating in good faith.
They again ,asked Sullentrup if he really had authority to
bargain and he replied that he had authority in some areas
but did not explain what areas. The Union' representatives
then stated that they were going to file an unfair labor
practice charge with the Labor Board. Sullentrup replied,
"Okay," as the Union representatives left. In my view,
Sullentrup's conduct at this meeting, especially considered
in the light of Sullentrup's past noncooperation and
frustration of bargaining attempts and Respondent's
concurrent attempts to destroy the Union's majority status
fully warranted the conclusion of the Union
representatives that Sullentrup was stalling and not
attempting to bargain in good faith.-
The Union filed an unfair labor practice charge against
Respondent on the following day and no further
bargaining negotiations took place between that date and
the time of the hearing herein in July 1968.
4. Analysis and conclusions with respect to the
alleged refusal to bargain
The evidence outlined, supra, shows that for over 9
months following the Union's May 8, 1967 letter
proposing that Respondent accept certain contract terms,
and despite numerous attempts by the Union to arrange a-
bargaining conference, Respondent could not agree with
the Union on an acceptable date. The only meeting during
this period was on June 19, 1967 and this could not be
called a bargaining conference since no contract terms
were discussed and the Union merely presented to
Respondent the contracts which it proposed as a basis for
bargaining and agreed that Respondent should have time
to study the proposals before commencing to bargain
about them.14 Although Sullentrup had promised to call
the union representatives as soon as he had time to study
the Union's proposals and check with other
representatives of Respondent about them, the union
representatives waited in vain for such a call. Each time in
July, in August and in September when Union
Representative Boyer called Sullentrup about negotiating
a contract, Sullentrup replied either that he had not
finished studying the Union's proposals or that he had
been unable to get in touch with Regional Manager
McCaffrey about them. Even after, at the Union's
request, a representative of the Federal Mediation and
Conciliation Services was called in to assist in setting up a
bargaining conference and Respondent finally proposed
some meeting dates, these dates were usually for late in
the days and on Fridays when, as Respondent knew, it
was difficult for the Union representatives to come to St.
Clair and get back to St. Louis in time to preside at
regularly scheduled union meetings, or the scheduled
meetings between Respondent and the Union were
canceled by Respondent.
Sullentrup testified that the unavailability of McCaffrey
was one of the major reasons why Respondent had
difficulty in setting up dates for meetings - in the
"The findings regarding the bargaining conferences and the attempts to
set up bargaining conferences are based principally upon the testimony of
Union Representatives Boyer and Kuper, confirmed by some documentary
evidence and some of the testimony of Sullentrup and McCaffrey. There is
no substantial dispute as to the facts
'To be sure, the Union had been careless in failing to enclose these
proposals with its May 8 letter as it indicated in the letter it was doing, but
Respondent did not see fit to have this error corrected by informing the
Union of its omission during the several telephone conversations Sullentrup
had with Union Representative Kuper and in the two letters from
Sullentrup to Kuper prior to June 19.
PETROLANE FRANKLIN GAS SERVICE 601
summer and fall because McCaffrey was usually
unavailable from Monday, through Thursdays because of
the negotiation of new acquisitions and during the winter
because both he and McCaffrey were kept busy with the
seasonal demands of Respondent's business.15 But pressing
demands of an employer's business cannot excuse
continued refusals to meet with a bargaining
representative. If an employer's obligation to meet with
the Union representatives and negotiate a contract are
permitted continuously to be relegated only to those times
when the employer has no other business needing his
attention, contract negotiations might have to wait
forever. Respondent had an obligation under the statute to
provide a representative who could meet with reasonable
promptness and negotiate." It is noted, moreover, that
although the Union had requested meetings in St. Louis,
and McCaffrey, during the summer and fall of 1967
usually flew into St. Louis at about 10 a.m. en route
home or his office on Fridays and, as he testified, could
have been available for bargaining sessions in St. Louis,
on Friday afternoons, Respondent never informed the
Union of this fact. I find that Respondent, prior to its
February 19, 1968 bargaining conference with the Union
failed to comply with its statutory obligation to meet at
reasonable times and places and with reasonable frequency
for the purposes of collective bargaining.
The General Counsel's contention that Respondent also
refused to bargain in good faith by failing to provide a
bargaining representative with authority to negotiate and
reach agreements appears to have merit. Although
Sullentrup over the phone on March 20, 1968 and at the
bargaining session held on March 26 told union
representatives that he had authority to bargain "to a
point," he refused to clarify what he meant by that
statement. Neither his conduct at the March 26 meeting
or during the preceding year indicated any authority to
negotiate and bind Respondent. Upon first receiving the
union contract proposals on June 19, 1967, Sullentrup told
union representatives that he would like to check with
other company personnel about the proposals. From
August 1967 until the February 19, 1968 bargaining
conference, Sullentrup repeatedly made excuses for not
meeting with the Union because McCaffrey was
unavailable. To be sure, he never expressly stated during
that period that he did not have authority to bargain for
Respondent but he most certainly gave the Union cause to
believe that McCaffrey's presence was necessary in order
to bargain. It is noted, moreover, that during the three
sessions when McCaffrey was present McCaffrey did most
of the talking for Respondent, thereby reenforcing the
belief of the Union representatives that he was the official
who could speak authoritatively in the field of bargaining.
Accordingly, even if, as Sullentrup testified at the hearing,
he in fact has authority to make agreements for
Respondent which he feels Respondent would accept, his
conduct prior thereto reasonably led the Union
representatives to believe that he did not have such
authority. I need not decide whether Sullentrup in fact
had authority to negotiate and reach an agreement with
the Union, for even if he did have such authority, his
conduct in misleading the Union representatives would
"During this period the Union even proposed meetings on Saturdays and
Sundays, since it was so difficult to agree upon weekdays, but Respondent
was unwilling to meet on those days. Sullentrup testifned at the hearing
that he did not believe Saturday or Sunday meetings would be necessary.
"Insulating Fabricators , Inc., 144 NLRB 1325, 1328, "M" System, Inc,
129 NLRB 527, 549
have been inconsistent with Respondent's obligation to
bargain in good faith.
The record fully supports the General Counsel's
contention that Respondent also showed a lack of good
faith in bargaining by repudiating at the last bargaining
conference the previously agreed upon provision for a
seventh paid holiday to fall on the employees' birthdays
and by failing to submit Respondent's own proposed
contract as Respondent had promised on March 4 it
would try to do. Sullentrup's apparent explanation for
failing to submit such a contract was that when he called
Respondent's counsel in California for his views on the
Tuloma contract which formed the basis for negotiations,
he could not hear what the attorney said because of
construction noise in the background Surely, an employer
representative truly desiring to fulfill his commitment to
submit a counterproposal, would have found some means
of communicating with his counsel.
That Respondent throughout the period covered by the
complaint was not bargaining in good faith is further
evidenced by its persistent and almost, simultaneous
attempts to undermine the Union and destroy its majority
status while purporting to bargain with the Union - as
shown by its efforts, in dealing with its employees
individually, to place blame on the Union for its inability
to grant the employees wage increases and other
improvements in working conditions comparable to those
in Petrolane's nearby nonunion facilities, by its attempts
to induce the employees to vote the Union out of
Respondent's business and by its promises of benefits if
they did so. With respect to Respondent's decision that it
would not be "good business judgement" to grant wage
increases while under an obligation to bargain with the
Union, McCaffrey was questioned at the hearing and
replied as follows:
Q.... Mr. McCaffrey, did you ever ask Local 610
whether they would have any objection if you would
raise the St. Clair people to the same level as the
nonorganized districts in the same general area?
A. No, I did not, because at that point it seemed to
me that our employees at that point, then, would have
given the Union credit for the raise.
It is found `hat Respondent has failed and refused to
bargain in good faith with the Union, in violation of
Section 8(a)(5) and (1) of the Act by:
(1) Failing and refusing to meet at reasonable times and
places and with reasonable frequency for purposes of
collective bargaining; (2) Deliberately leading union
representatives to believe that it was failing and refusing
to provide a bargaining representaitve on and after March
20, 1968 with authority to negotiate and reach
agreements; (3) Repudiating an agreement made in prior
negotiations with respect to paid holidays; (4) Failing and
refusing to submit promised counterproposals for a
complete contract; and (5) Engaging in acts and conduct
designed to undermine the Union and destroy its majority
status during the period when the Union was attempting
to negotiate a contract.
D. The Discharge of James L. Goodbar
Goodbar started working for the Washington, Missouri,
facility of Petrolane in 1963 and was transferred in
January 1964 (according to Goodbar) or February 1965
(according to Sullentrup) to Respondent's St. Clair
operation, receiving credit on Respondent's records for his
employment at the Washington operation. He worked
regularly at servicing and installing gas appliances but
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also at times drove a bulk truck for Respondent prior to
his discharge on May 3, 1968. The discharge, Respondent
contends, was the result of an accumulation of complaints
against Goodbar.
According to Sullentrup, he had the feeling for about 2
years before Goodbar's discharge that Goodbar was an
"agitator" of the employees and this feeling became
stronger during the last year of Goodbar's employment.
During the fall of 1967 he accused Goodbar several times
of being an agitator, of stirring up the other employees
against him and of making it difficult for him to manage
the district. In explaining what he meant by his feeling
that Goodbar was an agitator, Sullentrup testified that
sometimes he would find Goobar in a huddle with the
other men and that all of them would stop talking when
Sullentrup appeared and also at other times he would hear
snickers as he went out the door. He believed that
Goodbar talked to the other employees not only about
wages and working conditions but also about the
operation of Respondent's business, an area which
Sullentrup believed to be his sole prerogative.
Goodbar credibly testified that the previously good
relationship he had with Sullentrup began to deteriorate at
about the time the Union came into the picture. At the
time Goodbar received his last increase in salary in
October 1966, he was assured by Sullentrup that he would
receive another $20 a month increase in February 1967.
When he did not receive the increase and asked Sullentrup
about it, Sullentrup explained that he could not grant a
raise while negotiating with the Union. Respondent's
withholding of long overdue salary increases to Goodbar
and the other employees while delaying bargaining
negotiations and failing to bargain in good faith with the
Union, as already mentioned, caused a breakdown in
morale among all of the employees and there is no doubt
that they talked among themselves about their grievances,
as they did to Sales Manager Meador in March and
April.
The strained relationship between Sullentrup and
Goodbar apparently reached a peak early in January
1968. On January 2, Sullentrup asked Goodbar whether
the Union had been in contact with him. When Goodbar
replied that it had not and asked Sullentrup whether he
had heard anything from the Union, Sullentrup said he
had not and asked Goodbar what he thought was going to
happen between the Union and Petrolane. Goodbar
responded that he did not know and had no idea.
Sullentrup apparently interpreted Goodbar's response as
less than candid and remarked that the two of them could
not agree on anything any more and seemed to be far
apart.
On the following day, January 3, there occurred the
meeting previously referred to between Sullentrup and all
the employees at which they expressed their dissatisfaction
with working conditions. In addition to inquiring as to
why the employees at Petrolane's Sullivan operation were
making more money than they were, they expressed the
view that Respondent should not send one of its bulk
trucks which the Sullivan facility wanted to that location
because the Sullivan employees were already working less
overtime than Respondent's employees and the loss of a
bulk truck at St. Clair would cause even more overtime
by Respondent's employees. Sullentrup testified at the
hearing that he became angry over these remarks because:
"This was my decision to make as to whether this truck
went to Sullivan, Missouri." Sullentrup added that he had
not intended to let the truck go to Sullivan."
On the next day, Sullentrup approached employee
Obermark, asked why everyone "was so shook-up" at the
meeting on the preceding day and expressed the view that
Goodbar was stirring up trouble in connection with the
bulk truck talk. Obermark assured Sullentrup that
Goodbar "didn't have a thing to do with it." Nevertheless,
Sullentrup continued to assert that Goodbar was
responsible for the men's dissatisfaction.
On Saturday, January 6, after Obermark told Goodbar
of the accusations Sullentrup had made against him,
Goodbar approached Sullentrup and asked him, in the
presence of employees Sullivan and Hinson, about an
alleged remark that Goodbar was an "instigator."
Sullentrup responded, "That is right, you are, you are
always stirring up trouble, leading the men in the wrong
direction and everything else." He told Goodbar "I may
have to eat my words for saying this . . . . I think you are
the trouble maker." He asked Goodbar to see him in his
office in private at 7:30 p.m. on the following Monday.
Goodbar's normal work day ended at 5 p.m. He protested
against having to come back to the office in the evening
and it was agreed that they should meet at 4:30 p.m. on
Monday.
The private meeting between Sullentrup and Goodbar
did not occur until Tuesday, January 9, because Goodbar,
Hinson and Sullentrup were working on an out-of-town
job until 9:30 p.m. on Monday. At their meeting
Sullentrup gave Goodbar a letter, dated January 5, 1968,
listing a number of complaints Sullentrup had against
Goodbar dating from the first year of his employment at
the St. Clair operation and warning Goodbar that a
repetition of any of these practices or the development of
new ones Sullentrup considered detrimental to the
operation of Respondent would subject Goodbar to
discharge. Sullentrup discussed these complaints with
Goodbar. The letter listed (1) two "at fault" accidents
Goodbar had had in 1965 and "possibly one more at
fault";" (2) personal appearance - referring to the fact
that in Sullentrup's view, Goodbar appeared at work more
than the other employees needing a shave or haircut; (3)
service work - referring to the fact that occasionally and
in particular on two occasions in November 1967,
Goodbar had not remedied an overheating or other
problem on his first service call and had to return to
service the customer, and also referring to an occasion in
1965 when Goodbar was given a 3-day suspension for
estimating rather than actually reading customer meters;
(4) creditors - referring to an occasion in August 1967
when Goodbar was involved in divorce proceedings and a
writ of garnishment was served upon Respondent, then
released 2 days later, and to other alleged occasions, only
one of which Sullentrup could specifically recall, when, on
an unspecified date, a creditor called Sullentrup about a
delinquent account of Goodbar's; (5) service truck - a
"Since a transfer of the truck would have adversely affected the
employees' working conditions, they, of course, had a right, protected
under the Act, to protest against any possible transfer.
"The latter referred to an accident occurring in November 1967 when
Goodbar's truck slid in the mud as he was "setting a tank " Although
Sullentrup and McCaffrey at the hearing sought to give the impression
that Goodbar may have been at fault on that occasion, Petrolane 's Safety
Committee (composed of Petrolane' s insurance coordinator, its General
Counsel, a district manager and two employee drivers) whose sole
responsibility it is to determine whether an employee is at fault , bad not
found Goodbar at fault and in March 1968 Respondent presented him with
a 3-year Safety Award Pin signifying that he had a perfect safety record
for the year 1967 and 2 other years.
PETROLANE FRANKLIN GAS SERVICE 603
charge by Sullentrup that Goodbar was not washing his
truck as frequently during the winter of 1968 as he should,
though Goodbar claimed he was washing it just as
frequently then as during the winters of 1967, 1966 and
1965; (6) an allegation that Sullentrup had spoken to
Goodbar in November about a report from the office girl
that she smelled liquor on Goodbar's breath and that
Goodbar had denied the accusation;" and (7) Sullentrup's
'belief, already discussed, that Goodbar was an agitator,
trying to downgrade the attitude of the other employees
toward Respondent.
The record does not disclose any specific complaint by
Sullentiup regarding Goodbar's job performance following
the January 5 warning letter until Goodbar's discharge on
May 3 During this period, on April 3, however, there
occurred the incident already mentioned wherein
Sullentrup questioned Goodbar about the subject matter
of the employees' discussion with Sales Manager Meador
on the preceding day and also about how Goodbar and
the other employees felt about the Union and another
election and was informed by Goodbar that the employees
did not intend to ask for another election.'" This occurred
after the breakdown in bargaining negotiations and after
the Union, for a second time, had filed refusal-to-bargain
charges against Respondent.
On April 8, 1968, a few days after Sullentrup's
interrogation of Goodbar, the latter met with a
representative of the National Labor Relations Board in
Lewis' Cafe near Respondent's office (where he had
previously talked with Sales Manager Meador) and gave
information regarding the charges which had been filed.
On May 1, Goodbar drove a empty L-P gas bulk truck
from a repair shop and parked it in the graveled fenced-in
parking area (sometimes called the pen) adjoining
Respondent's bulk plant, with the front wheels next to a
partially imbeded telephone pole (described by some of
the witnesses as a railroad tie). Respondent's safety
manual requires that its bulk trucks be "'chock blocked"
at all times when the truck is unoccupied.21 However,
according to the credited testimony of Goodbar and the
other three employees, none of them had ever chock
blocked a truck when it was parked against the telephone
pole inside the fenced-in area for they considered that
parking the truck in that manner and in that location was
the equivalent of chock blocking it.
On May 3, when Goodbar reported for work,
Sullentrup asked Goodbar if,he was the person who had
parked the bulk truck in the fenced-in area and, upon
being informed that Goodbar had parked it there, told
Goodbar that he had been around long enough to know
Company policy about blocking. Sullentrup stated, "I am
going to let you go, this is the last straw." About that
time, Sullivan and the other employees began arriving at
work. Sullivan met Goodbar as the latter was leaving the
plant office and learned from Goodbar that he had been
fired. Sullentrup informed Sullivan that Goodbar had been
fired "because he had failed to block the bulk truck."
Sullivan then took Goodbar home.
After Sullivan and Goodbar had left, Sullentrup told
employee Hinson that he had to let Goodbar go. Hinson
asked why. Sullentrup explained, "He didn't block the
bulk truck and he knows better than that." Sullentrup
"Sullentrup did not contend that he, himself, had ever detected the odor
of alcohol on Goodbar 's breath.
"I find that this interrogation of Goodbar and suggestion that another
election be held was, under the circumstances, independently a violation of
Section 8(a)(l) of the Act.
vA truck is chock blocked and cannot be moved when blocks are placed
immediately in front of and behind a rear wheel.
then showed Hinson the truck. On the way to the pen,
Hinson told Sullentrup that he had parked there quite a
few times and did not remember ever blocking the truck.
Sullentrup replied, "Well, maybe you were agamst the tie
or I didn't catch you."22
When Sullivan returned to the plant after taking
Goodbar home, he told Sullentrup that he, Sullivan, did
not believe that the reason assigned by Sullentrup for
Goodbar's discharge was the real reason, adding that
Sullentrup might as well fire him, too, since he had
parked the trucks in the pen without blocking them.
Sullentrup replied that if Sullivan did not like conditions
at the plant, he could quit.
Late in the afternoon Sullentrup called his three
remaining employees together and told them that "he had
to have team work" and that if they did not think he was
fair, they could quit. In addition to the reason he had
assigned that morning for discharging Goodbar, he now
added as a further reason that Goodbar's creditors were
after him. Sullentrup did not testify with respect to any
trouble of the latter nature not already mentioned in the
January 5 warning letter. He at first testified that he did
not fire Goodbar when delivering the warning letter to
him because he was "soft hearted" and swayed by
sympathy for Goodbar on account of his recent divorce
and financial difficulties, considerations which he
discussed with McCaffrey and, contrary to custom, also
with Respondent's General Counsel Wills, in Long Beach,
California. He asserted that his consultation with Wills
had nothing to do with the fact that there was a labor
union in the picture. Later, however, he testified
somewhat inconsistently that when calling Respondent's
counsel in Long Beach, he was clearly proposing to
discharge Goodbar and was dissuaded from doing so
partly because of Goodbar's personal problems and partly
because of the fact that the last time Sullentrup had
discharged a man, an unfair labor practice charge had
been filed agamst Respondent. (This was apparently a
reference to the charge filed in behalf of Wideman, the
employee member of the Union's bargaining committee
who had been discharged.)"
A careful review of all the evidence convinces me that
the reasons assigned by Sullentrup for discharging
Goodbar on May 3, are clearly pretextual and that the
true reason was Sullentrup's opposition to the Union and
his belief that Goodbar was primarily responsible for the
employees' continued adherence to the Union and their
discontent with working conditions. While Sullentrup, as
Respondent's bargaining representative, was failing and
refusing to bargain in good faith with the Union and
attempting by various means to induce the employees to
reject the Union and thereby, as he obviously hoped,
relieve Respondent of any further obligation to bargain,
Sullentrup was unsuccessful in getting any cooperation
from Goodbar in this respect. The record does not show
whether or not Goodbar, in fact, was leading the men or
"agitating" them in their discontent over working
conditions but it is obvious that Sullentrup believed for
some time prior to the January 5 warning letter that
Goodbar was doing so - as Sullentrup told Goodbar and
"Because Sullentrup during his conversation with Hinson referred to the
wheels as being 18 inches from the tie or pole and Hinson could see that
this was not so, he and Sullivan later that day measured the distance
between the pole and the nearest contact point on the front tires and found
the distance to be about 4 inches
"Sullentrup did not mention to Wills his belief that Goodbar was talking
tc the other employees and downgrading the Company - one of the
complaints listed in the warning letter.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees prior to that time. The statute protects
employees in their right to engage in such concerted and
union activities for their mutual aid and protection and
Respondent could not lawfully discriminate against
Goodbar because of its belief that he was an "agitator" or
" instigator" in these respects.
The record leaves no doubt that Sullentrup was
motivated in issuing the warning letter to Goodbar
primarily by his resentment over what he believed to be
Goodbar's agitation of the men to express discontent over
their working conditons . The most recent display of such
resentment had occurred only 2 days before Sullentrup
wrote the warning letter . That such resentment was the
true or primary reason for the warning letter is evident
from the fact that none of the complaints listed in the
letter except Goodbar's alleged influencing of the attitude
of the other employees was of very recent vintage.
Nothing else , so far as the record discloses , had occurred
since November 1967. The garnishment proceeding had
occurred in the preceding August and the two at-fault
accidents and suspension for failing to read meters had
occurred in 1965.
The reason first assigned by Sullentrup for discharging
Goodbar on May 3, was so patently pretextual that
employee Sullivan frankly told him so After learning that
neither Sullivan or Hinson had blocked their trucks when
they were parked against the pole in the fenced- in area,
Sullentrup was forced later in the day to add another
reason for Goodbar's discharge . By the time of the
hearing, however , he had added all of the reasons
expressed in the January 5 warning letter. These alleged
reasons, except that relating to Goodbar ' s influence on the
attitude of other employees , are based upon stale
complaints, some of them exaggerated or trivial , which, I
am convinced , were not true considerations in Sullentrup's
decision to discharge Goodbar. I find on the basis of the
evidence outlined above and on the entire record that
Sullentrup discharged Goodbar because he believed that
Goodbar was engaging in conduct which, it is found,
constituted protected concerted and union activities for the
mutual aid and protection of himself and other employees
and that his discharge was therefore in violation of
Section 8(a)(3) and ( 1) of the Act.24
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them in
Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
2. By discharging James L. Goodbar to discourage his
engagement in union and other protected concerted
activities for the mutual aid and protection of himself and
other employees, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
3. All drivers, servicemen, helpers, and meter readers
employed at Respondent's St. Clair, Missouri, facilities,
'?he complaint alleges that Goodbar's discharge was also in violation of
Section 8(a)(4) of the Act, and in support of this allegation, the General
Counsel introduced evidence that Goodbar had given a statement to a
Board agent in 1967 in connection with the discharge of Wideman, the
employee member of the Union's bargaining committee , and another
statement in April 1968 in support of a third unfair labor practice charge
against Respondent . I am not satisfied , however , that Sullentrup knew of
this activity on Goodbar' s part at the time of discharging him and do not
find any violation of Section 8(a)(4).
excluding office clerical and professional employees,
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all, times since March 24, 1967, the Union has
been the exclusive representative of all the employees in
the aforesaid unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment. '
5. By refusing on and after July 18, 1967, to bargain
collectively with the Union, Respondent has engaged in
and is engaging in an unfair labor practice within the
meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. A preponderance of the evidence does not support
the allegation of the complaint that Respondent engaged
in an unfair labor practice within the meaning of Section
8(a)(4) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1), (3),
and (5) of the Act, my Recommended Order will require
that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
To remedy its discriminatory discharge of employee
Goodbar, Respondent will be required to offer him
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay
suffered by reason of the discrimination by paying him a
sum of money equivalent to the amount he normally
would have earned as wages from the date of his discharge
to the date of the offer of reinstatement, less his net
earnings during such period. The backpay shall be
computed on a quarterly basis in the manner prescribed
by the Board in F. W. Woolworth Company, 90 NLRB
289, with interest thereon at 6 percent as ascertained by
the formula adopted in Isis Plumbing & Heating Co., 138
NLRB 716.
To remedy Respondent's unlawful refusal to bargain
with the Union, Respondent will be required, upon
request, to bargain collectively with the Union in the unit
herein found appropriate. At the hearing the Union,
through its counsel, requested that in addition to the
customary type of bargaining order, a compensatory
remedy be provided which will require Respondent to
compensate its St. Clair employees for the overdue salary
increases which, on the basis of increases granted
employees at Petrolane's nearby Washington and Sullivan
facilities, Respondent's employees would reasonably have
been expected to receive had they not selected the Union
as their bargaining representative. A meaningful order, it
seems to me, should provide for some such remedy. The
record in this case makes it abundantly clear that, as
Respondent acknowledged, salary increases for the St.
Clair employees were long overdue and the only reason
for not granting increases such as had been granted to
Petrolane's unrepresented Washington and Sullivan
employees was the fact that Respondent's employees had
selected the Union to represent them and the other
employees had not. Respondent's Regional Manager
McCaffrey, moreover, conceded at the hearing that the
reason he had not offered to pay these overdue increases
during bargaining negotiations with the Union was that he
PETROLANE FRANKLIN GAS SERVICE 605
did not want the Union to take credit for obtaining such
increases for the employees.
The problem of providing a compensatory remedy, in
general , for unlawful refusals to bargain is a very complex
and troublesome one and no attempt will be made in this
decision to pass upon the practicability or reasonableness
of such an order in general. 25 Bearing in mind that in
attempting to redress a past unlawful refusal to bargain,
the remedy devised should avoid the danger of
circumscribing the parties' attempts in future negotiations
freely to reach a mutually acceptable contract, I am
convinced that a bargaining order can be drawn which at
least in part will serve to rectify Respondent's past
unlawful conduct. Such order will require that, upon
request by the Union, Respondent shall immediately put
into effect overdue salary increases for its employees at
St. Clair which, on the basis of increases granted to
Petrolane's unrepresented employees at the Washington
and Sullivan facilities on or after March 24, 1967, the St.
Clair employees would have had a reasonable expectancy
of receiving, said increases to be retroactive to the dates
and in the amounts similar increases were given to the
Washington and Sullivan employees and to bear interest
at the rate of 6 percent per annum - without prejudice,
however, to Respondent's right to take such increases into
account in bargaining with respect to other economic
benefits for its employees.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in this case, and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, it is hereby ordered that Respondent,
Petrolane-Franklin Gas Service, Inc., its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively 'with Miscellaneous
Drivers and Helpers Union, Local 610, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
bargaining representative of its employees in the following
appropriate unit:
All drivers, servicemen, helpers and meter readers
employed at Respondent's St. Clair, Missouri, facilities,
exclusive of office clerical and professional employees,
guards and supervisors as defined in the National Labor
Relations Act.
(b) Discharging or otherwise discriminating against any
employee because of his union membership or because he
has engaged in protected concerted activities for the
mutual aid and protection of himself and other employees.
(c) Threatening any employee that it would be futile to
have a union represent him.
(d) Interrogating employees regarding the union
sympathies of themselves or fellow employees or their
intention to call for an election for the purpose of
repudiating the Union as their bargaining representative.
(e) Attempting to bargain individually with employees
in the bargaining unit regarding their rates of pay or other
working conditions.
"The Board now has pending before it a consideration of this problem
as it is presented in several other factual situaf ions See, e g., Zinke's
Goods , Inc. (Case 30-CA-372, TXD-662-66) and Ex-Cell-O Corporation
(Case 25-CA-2377, TXD 80-67) See also N.L.R B v. Beverage-Air Co.,
402 F.2d 411 (C A. 4), wherein the court recently approved a
compensatory type remedial order for an unlawful refusal to bargain
(f) Promising benefits to employees in return for their
rejection of the Union as their bargaining representative.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Upon request, bargain collectively with the
above-named Union as the exclusive representative of all
the employees in the unit described above concerning rates
of pay, wages, hours of employment and other conditions
of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Upon request by the Union, immediately put into
effect and pay salary increases to its employees at St.
Clair comparable to those increases already granted to
Petrolane's employees at its Washington and Sullivan,
Missouri, facilities on or after March 24, 1967, said
increases to be retroactive to the dates and in the amounts
similar increases were given to said Washington and
Sullivan employees and to bear interest at the rate of 6
percent per annum - without prejudice, however, to
Respondent's right to take such increases in account in
bargaining with the Union with respect to other economic
benefits for its employees.
(c) Offer to James L. Goodbar reinstatement to his
former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole in the manner described in the
portion of the Trial Examiner's Decision entitled "The
Remedy" for any loss of earnings suffered by reason of
the discrimination against him.
(d) Notify James L. Goodbar, if he is presently serving
in the Armed Forces of the United States, of his right to
full reinstatement, upon application, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(e) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll and other records necessary or helpful in analyzing
the amount of backpay due under the terms of this order.
(f) Post at its facilities in St. Clair, Missouri, copies of
the attached notice marked "Appendix."26 Copies of such
notice, on forms to be provided by the Regional Director
for Region 14, after being duly signed by an authorized
representative of Respondent, shall be posted 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
Respondent to insure that said notices are not altered,
defaced or covered by any other material.
(g) Notify the Regional Director for Region 14, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith. 17
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words, "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words, "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations not
found herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
We are posting this notice in accordance with the
Recommended Order of a Trial Examiner of the National
Labor Relations Board who, after a hearing in which all
parties had an opportunity to present their evidence, found
that we had violated the law. We hereby notify our
empolyees that:
WE WILL, upon request, bargain collectively with
Miscellaneous Drivers and Helpers Union, Local 610,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive bargaining representative of our employees
in the following appropriate unit:
All drivers, servicemen, helpers and meter readers
employed at our St. Clair, Missouri, facilities,
exclusive of office clerical and professional
employees, guards and supervisors as defined in the
National Labor Relations Act;
and when an understanding is reached, we will sign a
contract with the Union.
WE WILL, upon request by the Union, immediately
put into effect and pay salary increases to our
employees at St. Clair comparable to those increases
already granted to Petrolane's employees at its
Washington and Sullivan, Missouri, facilities on or
after March 24, 1967, said increases to be retroactive to
the dates and in the amounts similar increases were
given to said Washington and Sullivan employees and
to bear interest at the rate of 6 percent per annum -
without prejudice, however, to our right to take such
increases into account in bargaining with the Union
with respect to ' other economic benefits for our
employees.
WE WILL offer to James L. Goodbar full
reinstatment to his old job and will give him whatever
backpay he has lost because of his discharge. If he is
presently in the Armed Forces of the United States, we
will notify him of his right to full reinstatement upon
application after discharge from the Armed Forces.
WE WILL NOT discharge or in any other way
discriminate against any employee because of his union
membership or activities or because he may join with
other employees in complaining about his pay or other
working conditions.
WE WILL NOT question any employee about his or
any other employee's feelings about the Union or about
voting the Union out.
WE WILL NOT attempt to bargain individually with
our employees in the bargaining unit described above in
regard to their pay or other working conditions.
WE WILL NOT promise our employees any benefits in
return for their voting the Union out
WE WILL NOT in any other way interfere with our
employees' right, guaranteed under the law, to organize,
to form, join or assist a union, to bargain through the
Union they have chosen, to act together for their
mutual aid or protection, or to refuse to do any of
these things.
PETRO LANE-FRANKLIN
GAS SERVICE, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If,employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1040 Boatmen's
Bank Building, 314 North Broadway, St. Louis Missouri,
Telephone 622-4167.