Quirk Tire

National Labor Relations Board - Board Decisions

Mar 20, 2000

330 N.L.R.B. 917 (N.L.R.B. 2000)

QUIRK TIRE 917
The Edward S. Quirk Co., Inc. d/b/a Quirk Tire and
International Brotherhood of Teamsters, Local
Union, No. 25, AFL–CIO. Cases 1–CA–33249
and 1–CA–34383
March 20, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
HURTGEN
On January 29, 1998, Administrative Law Judge C.
Richard Miserendino issued the attached decision. The
General Counsel, the Charging Party, and the Respon-
dent each filed exceptions and a supporting brief. The
Charging Party also filed an answering brief to the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,2 as
modified, and to adopt the recommended Order, as modi-
fied.3
We affirm the judge’s conclusion that the Respondent
lawfully implemented its health insurance proposal after
the parties had reached a good-faith impasse in their con-
tract negotiations. We reach the same conclusion even
assuming, arguendo, that impasse did not occur until
after unit employees rejected the Respondent’s final con-
tract offer on May 18, 1995. Unlike our dissenting col-
league, we do not presume that unremedied unfair labor
practices preceding the employee vote must have pre-
cluded the possibility of a good-faith impasse in negotia-
tions. In this regard, “for the judge to conclude that the
unremedied unfair labor practices prevented the parties
from reaching lawful impasse, he must first find that
there was a causal connection between the previous un-
fair labor practices and the failure to reach an agree-
ment.” Dynatron/Bondo Corp., 326 NLRB 1170 (1998)
(Board remanded case to an administrative law judge to
assess evidence of parties’ negotiations to determine
whether bargaining was adversely affected by unfair la-
bor practices occurring prior to and during those negotia-
tions). There is no evidence here that the parties dis-
cussed or were influenced by the Respondent’s unlawful
failure to make timely payments into the existing health
insurance plan fund during their extensive review and
discussion of the Respondent’s proposed new insurance
plan.4 Furthermore, there is no credible testimony that
statements made by the Respondent to employees on the
morning of May 18—which statements the judge found
violated Section 8(a)(1), and as to which no exceptions
were filed—affected the parties’ negotiations or had any
impact on the employees’ contract vote that evening.
Under these circumstances, we find that the General
Counsel has failed to prove any causal relationship be-
tween the unfair labor practices and the impasse in nego-
tiations.5

1 The Charging Party and the Respondent have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
2 Relying on McClatchy Newspapers, 322 NLRB 812 (1996), the
judge concluded that the Respondent’s unilateral post-impasse imple-
mentation of its wage incentive proposals violated Sec. 8(a)(5). We
affirm the judge only as to its implementation of a discretionary wage
plan for commercial operations employees. The Respondent lawfully
implemented its wage incentive plan for mechanics and alignment
technicians, which was based on a nondiscretionary, fixed formula.
3 We shall modify the recommended provisional notice mailing rem-
edy in accord with Excel Container, 325 NLRB 17 (1997).
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge as
modified below and orders that the Respondent, The
Edward S. Quirk Co., Inc. d/b/a Quirk Tire, Watertown,
Massachusetts, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraphs 2(a)–(c).
“(a) On request, bargain with the International Broth-
erhood of Teamsters, Local No. 25, AFL–CIO as the
representative of the employees in the above-described
appropriate unit, about the method, manner, timing, and
amounts of wage and/or incentive pay adjustments of
and/or granting incentive pay to the commercial employ-
ees, prior to making those wage and/or incentive pay
adjustments and/or prior to granting incentive pay to the
commercial employees.
“(b) On request by the above-named labor organiza-
tion, rescind any wage and/or incentive pay adjustments
made to the commercial employees as a result of unilat-
eral action.
“(c) Make the commercial employees whole for any
financial loss they may have suffered on or after June 1,
1995, as a result of the wage proposal unlawfully imple-
mented on that date.”
2. Substitute the following for paragraph 2(h).
4 Our dissenting colleague suggests that the Respondent’s failure to
make payments was an effort to “husband funds” so that the Respon-
dent could declare impasse and implement its own plan. This theory is
simply the speculation of our colleague. It is not supported by the
evidence. Indeed, it is not even a contention of the General Counsel.
5 Columbian Chemicals Co., 307 NLRB 592 fn. 1 (1992), cited by
the dissent, does not compel finding a violation here. In that case, the
Board held that unilateral implementation and enforcement of a new
absenteeism policy precluded finding that the parties subsequently
bargained in good faith to impasse about the implementation of that
policy. Although the dissent implies otherwise, the Respondent’s fail-
ure to make timely payments under the old health insurance plan was
not tantamount to implementation and enforcement of its proposed new
plan.
330 NLRB No. 137
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 918
“(h) Within 14 days after service by the Region, post
at its facility in Watertown, Massachusetts, copies of the
attached notice marked “Appendix.”24 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 1, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since February 10, 1995.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER FOX, dissenting in part.
The General Counsel and the Charging Party have ex-
cepted to the judge’s dismissal of the allegation that the
Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally implementing its health insurance pro-
posal on June 1, 1995. My colleagues have adopted that
dismissal. For the following reasons, I would grant the
exceptions and find the violation.
When negotiations for a new collective-bargaining
agreement commenced in June 1994, employees had
health insurance coverage under the Teamsters Health
and Welfare Plan, which had been provided by the Re-
spondent pursuant to the terms of the expired agreement.
Although the Respondent began proposing, early in the
negotiations, to introduce employee copayments for their
health insurance, it was not until March 22, 1995,1 that it
suddenly proposed not only that copayments be required
but that the existing plan be dropped and a Blue
Cross/Blue Shield plan be substituted. It is undisputed
that even before the day it made that proposal, the Re-
spondent unilaterally ceased making payments into the
existing plan.2 The judge and my colleagues agree that
the Respondent thereby violated Section 8(a)(5) and (1)
of the Act.
Health insurance was a contentious, high profile issue
in the negotiations, and the union negotiators registered

1 All dates hereafter are in 1995 unless otherwise stated.
2 Although the Respondent eventually made the payments for Febru-
ary through May, it did not even begin making up these missed pay-
ments until May 25, and the obligation was not completely satisfied
until the following November. The judge rejected the Respondent’s
defense that its payment delays reflected “cash flow problems.” The
judge noted that such a claim did not state a valid defense, and that, in
any event, the Respondent chose to make payments to its own substi-
tuted plan on June 1 rather than satisfy its obligations to the existing
plan. Thus, as he found, the Respondent’s “failure to pay was willful
and undertaken in bad faith.”
strong objections to the substitution of the new plan; but
they agreed that the Respondent’s entire contract pro-
posal, including the substitute health plan with a phased-
in copayment eventually reaching 25 percent, could be
submitted to the employees for ratification. The ratifica-
tion vote was scheduled for the evening of May 18. It is
undisputed that in a meeting on the morning of May 18,
which the Respondent required all unit employees to
attend, Peter Quirk, one of the Respondent’s co-owners,
told the employees that “regardless of how they voted
that evening, there was going to be a 25 per cent copay-
ment.” The judge found that Quirk’s statement violated
Section 8(a)(5) and (1) of the Act, and there are no ex-
ceptions to that finding.
The employees voted to reject the Respondent’s con-
tract proposal at the scheduled May 18 meeting. The
next day the Respondent began distributing enrollment
forms for the new health plan, and it put the plan into
effect on June 1. The judge and my colleagues do not
disagree that the Respondent’s unilateral implementation
would be unlawful if the parties had not previously
reached impasse. Rather, they find that a “good faith
impasse” was reached, either on May 15 or May 18, and
that this privileged the subsequent implementation. I
find that conclusion untenable.
The seminal case concerning impasse defines it as a
situation in which “good-faith negotiations have ex-
hausted the prospects of concluding an agreement.” Taft
Broadcasting, 163 NLRB 475, 478 (1967), enfd. sub
nom. Television Artists AFTRA v. NLRB, 395 F.2d 622
(D.C. Cir. 1968). The Board will not find that impasse
has occurred if that outcome is reached “in the context of
serious unremedied unfair labor practices that affect the
negotiations.” Great Southern Fire Protection, 325
NLRB 9 fn. 1 (1997), enfd. mem. 180 F.3d 274 (11th
Cir. 1999). In my view, the Respondent’s unlawful ces-
sation of payments into the existing health plan precludes
any finding that it was engaging in “good faith negotia-
tions” on the health insurance issue. See Columbian
Chemicals Co., 307 NLRB 592 fn. 1 (1992) (unilateral
implementation of an “absence control program” pre-
cluded a finding of a “valid good faith impasse” on that
issue).3 Thus, I would not find that the parties had
reached lawful impasse on this issue, even assuming that
impasse could otherwise be found before the employee
ratification vote was conducted. Certainly, by the time
of the ratification vote, on the evening of May 18, when
3 While it is true, as my colleagues assert, that the pre-impasse uni-
lateral change at issue here was not an implementation of a new health
insurance plan, the change still constituted unlawful unilateral action
with respect to the plan under negotiation—a plan which the Union
hoped to keep and the Respondent sought to change. Moreover, by
failing to make the payments, the Respondent was able to husband
funds that enabled it to declare impasse and implement its own substi-
tute plan. Thus, in my view there is a sufficient connection between the
unlawful conduct and the subsequent impasse on the subject of a health
care plan.
QUIRK TIRE 919
the Respondent had not only ceased payments for the
current plan but had also unlawfully informed the em-
ployees that it was going to institute new copayments
“regardless of how they voted,” any basis for finding
lawful impasse had vanished.4
In sum, because the Respondent had, by unlawful con-
duct, laid the groundwork for its unilateral implementa-
tion of the new health insurance plan even before any
claim of bargaining deadlock had been made, I would
find that it violated Section 8(a)(5) and (1) of the Act by
implementing the plan on June 1.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discourage membership in, or undermine
the status of, the International Brotherhood of Teamsters,
Local No. 25, AFL–CIO, by telling you that the Union
no longer exists, by refusing to discuss grievances with
the Union’s representatives, by unilaterally implementing
changes in the terms and conditions of employment of
employee Kenneith R. Jones or any of you, without noti-
fying and consulting the Union first, or by disciplining,
or by discharging Kenneith R. Jones, or any of you, or by
discriminating in any other manner in regard to your ten-
ure of employment or any other term or condition of your
employment.
WE WILL NOT adjust the wages and/or incentive pay of
and/or grant incentive pay to commercial employees
without first offering to bargain with the Union, as the
representative of the retail and commercial operations

4 I do not agree with my colleagues that Dynatron/Bondo Corp., 326
NLRB 1170 (1998), requires a different result. The Board remanded
that case for a determination by the judge whether unremedied unfair
labor practices found by the Board in two earlier cases adversely af-
fected bargaining on the issues in the remanded case on which the
employer was claiming impasse. Although asserted impasse privileg-
ing implementation of new group health insurance proposals was at
issue, and the unremedied unfair labor practices included unilateral
increases in health insurance premiums during a period 2 to 5 years
before that implementation (Dynatron/Bondo), 323 NLRB 1263, 1265
(1997), there was no indication that, as in the present case, there had
been unilateral changes on the subject during the course of negotiations
on the very proposals at issue.
service employees, about the method, manner, timing,
and amounts of those adjustments, and/or incentive pay
to be granted.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
representative of the following appropriate unit about the
method, manner, timing and amounts of wage and/or
incentive pay adjustments of the commercial employees,
prior to granting those adjustments:

All employees engaged in the maintenance and servic-
ing of tires, including all tire men, front end men, and
helpers employed by us at our Watertown facility, ex-
cluding all executives, office clericals, counter sales-
men, porters, salesmen, driver salesmen, guards, pro-
fessional employees, and supervisors as defined in the
Act.

WE WILL, on request by the Union, rescind any wage
and/or incentive pay adjustments made and/or incentive
pay granted to the commercial employees as a result of
our unlawful unilateral action.
WE WILL make the commercial employees whole for
any financial loss they may have suffered since June 1,
1995, as a result of the wage and/or incentive pay ad-
justments unlawfully implemented and/or incentive pay
unlawfully granted on that date.
WE WILL, within 14 days from the date of the Board’s
Order, offer full reinstatement to Kenneith R. Jones to his
former position, or if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or any other rights or privileges he previously
enjoyed, and under the same terms and conditions of
employment which pertained to him prior to August 1,
1995.
WE WILL make Kenneith R. Jones whole for wage and
benefit losses that he may have suffered as a result of the
discrimination against him, including his unlawful termi-
nation and the unlawful changes made on August 1,
1995, to his wage incentive plan, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Kenneith R. Jones, and WE WILL, within
3 days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
THE EDWARD S. QUIRK CO., INC.

Robert J. DeBonis, Esq., for the General Counsel.
Arthur P. Menard and Cheryll L. Robertson, Esqs., of Boston,
Massachusetts, for the Respondent.
Christine L. Nickerson, Esq., of Boston, Massachusetts, for the
Charging Party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 920
DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge. This
case was tried in Boston, Massachusetts, on December 17–19,
1996. The charge in Case 1–CA–33249 was filed on August 4,
1995, and was amended on September 29, 1995, December 5,
1995, and October 30, 1996. The charge in Case 1–CA–34383
was filed on July 31, 1996, and was amended on October 30,
1996. An order consolidating cases, consolidated complaint,
and notice of hearing were issued on November 6, 1996. The
Respondent’s timely answer essentially denied the material
allegations of the consolidated complaint.1 The parties were
afforded a full opportunity to appear, present evidence, exam-
ine and cross-examine witnesses, and file posthearing briefs.2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the posthearing
briefs filed by the General Counsel, the Union, and Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business in Watertown, Massachusetts, is engaged in the opera-
tion of a tire warehouse and service center. It annually pur-
chases and receives at its Watertown facility goods valued in
excess of $50,000, directly from points outside the Common-
wealth of Massachusetts. The Respondent admits and I find that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The Respondent further
admits and I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1. Whether the Respondent unlawfully delayed payments to
the Union’s health and welfare fund in violation of Section
8(a)(5) of the Act.
2. Whether the Respondent and Union reached impasse on
May 15, 1995, or at any time thereafter.
3. Whether Peter Quirk’s remarks on May 18, 1995, that
there would be a health insurance copayment regardless of how
the union members voted violated Section 8(a)(1) of the Act.
4. Whether John and Peter Quirk made other remarks on
May 18, 1995, that violated Section 8(a)(1) of the Act.
5. Whether the Respondent’s unilateral implementation of
its health insurance proposal on June 1, 1995, violated Section
8(a)(5) of the Act.
6. Whether the Respondent’s unilateral implementation of
its wage proposal on June 1, 1995, violated Section 8(a)(5) of
the Act.

1 On December 9, 1996, which was about a week before the hearing
started, the Respondent filed a motion to Collyerize and/or motion to
dismiss which was opposed by the General Counsel and the Union. I
reserved ruling on the motions, which I now deny for the reasons stated
herein.
2 The Respondent also filed an assented to motion to correct the re-
cord, and a motion for leave to file a reply brief, both of which were
unopposed and both of which are granted. I have read and considered
the Respondent’s reply brief, which was attached to the respective
motion.
7. Whether James DeSouza unlawfully told Union Steward
Kenneith Jones in June and August 1995, that there no longer
was a union and that he did not have to discuss employees
grievances, in violation of Section 8(a)(1) and (5) of the Act.
8. Whether the Respondent violated Section 8(a)(5) of the
Act, when it unilaterally changed Kenneith Jones’ terms and
conditions of employment on or about August 1, 1995.
9. Whether Peter Quirk unlawfully told Kenneith Jones on
August 31, 1995, and March 11, 1996, that he could not collect
union dues in violation of Section 8(a)(1) of the Act.
10. Whether the Respondent unlawfully disciplined Ken-
neith Jones on August 31, 1995, and terminated his employ-
ment in March 1996 in violation of Section 8(a)(3) of the Act.
B. Facts
1. The collective-bargaining relationship
Since at least 1990, and continuing through January 1994,
the International Brotherhood of Teamsters, Local Union No.
841, AFL–CIO (Local 841) was the exclusive bargaining repre-
sentative for the purposes of collective bargaining of the Re-
spondent’s employees in the following appropriate unit:

All employees engaged in the maintenance and servicing of
tires, including all tire men, front end men, and helpers em-
ployed by Respondent at the Watertown facility, excluding all
executives, office clericals, counter salesmen, porters, sales-
men, driver salesmen, guards, professional employees, and
supervisors as defined in the Act.

Recognition of the exclusive representative was embodied in
successive collective-bargaining agreements, the most recent of
which was effective from June 19, 1991, to January 31, 1994
(the 1991–1994 contract).
During the term of the 1991–1994 contract, the parties nego-
tiated successive wage reopeners resulting in wage increases,
effective June 1, 1992, and June 1, 1993. Notwithstanding the
negotiated wage increases, the Respondent paid its employees
more than the contract wage rate, a practice which it unilater-
ally implemented sometime before the 1991–1994 contract
expired.3 Peter Quirk, a co-owner, who began working for the
Respondent sometime in 1992, conceded that the Respondent
had unilaterally increased wages without giving Local 841 any
notice or an opportunity to bargain, and that he did not know
whether Local 841 even knew about the changes. In addition,
the Respondent unilaterally implemented without notice to
Local 841, wage incentive plans for its recap employees, and an
off-the-road (OTR) serviceman, named Kenneith Jones, who
was the union steward. Peter Quirk said that the wage incentive
plans were implemented by his brother, John Quirk, the other
co-owner, in order to retain qualified employees and make the
Respondent competitive with other tire businesses in the area.
To the best of Peter Quirk’s knowledge, neither the wage in-
creases nor the wage incentive plans were ever set forth in any
collective-bargaining agreement with Local 841.4
Although John Quirk confirmed that the Respondent’s em-
ployees were being paid more than the contract rate and that the
wage incentive plans had been in place for a long time, he
3 The record is unclear precisely when the Respondent began unilat-
erally paying employees more than the contract wage rates.
4 The General Counsel and Charging Party do not argue, and the
complaint does not allege, that any of these unilateral changes violate
the Act.
QUIRK TIRE 921
stated that Local 841’s business agents knew about the higher
wages and the wage incentive plans. John Quirk testified that
the wage incentive plans were part of the prior collective-
bargaining agreement, which expired in 1991. When viewed
against the preponderance of evidence, however, John Quirk’s
assertions are dubious. The prior collective-bargaining agree-
ment, which could have easily corroborated his testimony, was
never marked for identification or offered as evidence, thereby
casting doubt on John Quirk’s testimony. Adding to the suspi-
cion is the fact that the most recent collective-bargaining
agreement indisputably does not provide for a wage incentive
plan. Nor is there any evidence that the subject was discussed
during the 1991 contract negotiations or subsequently when the
successive wage reopeners were negotiated. The only person
who testified that Local 841 knew about the higher wage rates
and the wage incentive plan was John Quirk, whose testimony
was contradicted by his brother, Peter Quirk, and rebutted by
the union representatives. Jones testified that he did not advise
any Local 841 representative of his wage incentive plan and
Vincent Pisacreta, a business agent for International Brother-
hood of Teamsters, Local No. 25 (Local 25 or the Union),
which succeeded Local 841, testified that he was unaware of
the wage incentive plans, when he began negotiating a renewal
contract in June 1994. I therefore do not credit John Quirk’s
testimony that the Union’s business agents were aware that
employees were being paid more than the contract rates or that
they were aware that some employees were being paid wage
incentive rates or that the wage incentive plans were part of a
prior collective-bargaining agreement.
In addition, the Respondent had unilaterally changed the
work schedules of several employees, prior to the contract expi-
ration date, without notification or discussion with Local 841.
Peter Quirk testified that he changed work schedules in the
retail division on a regular basis in order to accommodate per-
sonal schedules. As Peter Quirk testified, “[w]hatever worked
for them is what we did. My attitude was a happy employee
would work better.” Among those affected by this policy was
Union Steward Kenneith Jones, who also worked full time for
the City of Boston Fire Department. Peter Quirk testified that
Jones had a flexible work schedule, which allowed him to leave
work at 3:30 p.m. or come in late some mornings, when he had
to work at the fire department in the evening. Although he said
that the flexible schedule was discontinued in 1994, the evi-
dence reflects that it was continued into 1996. (R. Exh. 26B.)
John Quirk similarly testified that he routinely sat down with
Jones to arrange his work schedule to accommodate his duty
tours at the fire department.
2. Bargaining for a new collective-bargaining agreement
In January 1994, Local 841 merged with Local 25, which
became the exclusive bargaining representative of the Respon-
dent’s unit employees. On January 31, the 1991–1994 contract
expired.
On June 3, 1994, the parties commenced negotiations for a
new collective-bargaining agreement. While negotiations pro-
ceeded, the terms and conditions of the contract continued in
effect at least up until February 1995. At the same time, the
Respondent continued paying wages above the contract wage
rates and continued the wage incentive plans for the recap and
OTR employee.
The Union’s initial proposals included, among other things, a
percentage increase in employer contributions to the health and
welfare plan (proposal 5), which was not agreed on; a com-
pletely revised dues-checkoff provision (proposal 7), which
was agreed on; a set time for lunch and breaks to be taken be-
tween the hours of 11 a.m. and 3 p.m. (proposal 10), which was
agreed on; and a wage increase of 5 percent in each successive
year of the contract for all employees (proposal 14), which was
not agreed on. When the parties met again on June 20, the Re-
spondent proposed, among other things, a wage incentive plan
for general mechanics and alignment technicians in retail op-
erations.5 The wage incentive plans provided for an incentive
of 8 percent over base. The over base was calculated using a
formula which multiplied the mechanics gross pay (based on an
average 42-1/2 hour week x hourly rate) times 4.3 for a weekly
incentive base, which was subtracted from total sales for 1
week for an incentive over base. That figure was then multi-
plied by 8 percent and the product was added to gross pay for a
weekly total pay. The Respondent also proposed a flat 50-
percent health insurance employee copayment. There was no
agreement on the wage incentive and health insurance propos-
als.
Two more bargaining sessions were held in 1994, and four
were held in 1995, with some progress being made during this
time. By February 1995, however, negotiations had reached a
standstill. The Respondent’s proposals for the me-
chanic/alignment technician’s wage incentive plans and the
health insurance copayment had become sticking points. An
“off-the-record” session held on February 7, 1995, was devoted
to resolving the parties’ differences on these issues, but little if
any progress was made. The consensus at that point was that
the participation of a Federal mediator was needed.
3. The failure to make timely contributions to the Union’s
health and welfare trust fund
In the midst of this critical stage in negotiations, when the
parties were having no success in reaching agreement on the
Respondent’s health insurance copayment proposal (or the
wage incentive plans), the Respondent stopped making its
monthly payments to the Teamsters Health and Welfare Fund.
Peter Quirk testified that the payments from February through
May 1995, were “delayed” because the Respondent was experi-
encing cash-flow problems.6 He explained that the Respondent
had spent a great deal of money on inventory and equipment.
4. The inability to agree on the health insurance and wage in-
centive proposals
On March 22, 1995, the parties met with a Federal mediator.
The Respondent presented new proposals for mechanic/align-
ment technician wage incentive plans and the health insurance
copayment. The new wage incentive proposal was a simplified
calculation based on a minimum hourly wage of $10 for me-
chanics, plus a 6-percent commission on all parts and labor.
The alignment technicians would receive a minimum hourly
wage of $8, a payment of $5 or $6 for either a 2-wheel or 4-
wheel alignment, plus a 6-percent commission on all parts and
labor. The health insurance proposal sought to switch from the

5 The Respondent’s business operations were divided into two parts:
retail and commercial. The Respondent’s wage incentive proposal did
not encompass the commercial operations employees like recap men
and the OTR serviceman, who already were covered by wage incentive
plans unilaterally implemented by the Respondent without the union’s
knowledge or consent sometime prior to the expiration of the 1991–
1994 contract.
6 The Respondent eventually made the February payment on May
25, and the March, April, and May payments on November 7, 1995.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 922
employees from the Teamsters Health and Welfare Fund plan
to a Blue Cross/Blue Shield plan, with a graduated copayment
beginning with 5 percent on April 1, 1995, increasing 5 percent
every 6 months thereafter to 20 percent on October 1, 1996.
The Union asked for time to examine the new proposals, and
undertook a cost/benefit study comparing the Union’s health
plan to the proposed Blue Cross/Blue Shield plan. The study
was completed on or about April 4. For reasons unexplained,
however, the Union canceled two negotiating sessions with the
Federal mediator scheduled in April. On May 1, the Respon-
dent’s chief negotiator and counsel, Arthur Menard, faxed a
letter to the Union, which stated, in pertinent part:

Since the Union has now canceled two negotiating sessions
. . . and indicates that it will not be available until the middle
of May, we thought it best to expedite the negotiating process
by transmitting to you copies of the Company’s final offers
and demands with regard to health insurance co-pay and wage
incentives and the Company’s demand for drug-free work-
place language.
I am also transmitting to you all other proposals that
have been agreed to. It would be our intention to incorpo-
rate these into any final agreement between the parties. If
we fail to hear any substantive objection from you by Fri-
day, May 5, 1995, then it will be the Company’s intention
to implement all of these offers and demands, no later than
Monday, May 8, 1995.

The Respondent’s “final offers,” however, were notably dif-
ferent from its March 22 proposals. The copayment for me-
chanics and alignment technicians was increased an additional
5 to 25 percent by April 1, 1997. Also, a provision regarding
wage benefits for all other employees (e.g., commercial opera-
tions employees) was added:

All other employees shall be paid a base rate of not less than
$8.90 an hour, however, the Company may continue its cur-
rent marketplace pay practices for the term of this contract.

As for the agreed-upon proposals transmitted with the May 1
letter, the parties agreed to substitute Local 25 for Local 841 in
the new contract, and agreed to provisions concerning holidays,
checkoff, credit union, safety shoes, lunch hours, nondiscrimi-
nation, and a drug free workplace.
Union Business Agent Pisacreta promptly responded by let-
ter stating that the Union was requesting further meetings with
the Federal mediator regarding the Respondent’s proposals on
health insurance copayment, wage incentives, and drug free
workplace issues. Pisacreta’s letter also stated, “[I]t is our posi-
tion that no final offer has been agreed to as yet.”
5. The final bargaining session
The final bargaining session was held in the Federal media-
tor’s office on May 15. Neither side was willing to make any
concessions on the health insurance copayment or wage incen-
tive issues. When the parties caucused, the Federal mediator
told Pisacreta that they were very far apart on the health insur-
ance copayment issue. At the Respondent’s urging, Pisacreta
agreed to bring the Respondent’s proposals to the union mem-
bership for a vote, but he stated that his committee would not
recommend ratification. As the session ended, the following
exchange took place between the Respondent’s chief negotia-
tor, Arthur Menard (AM) and the Union’s business agent, Red
Sheehan (RS):

AM It is time to recognize co-pay—it is not unusual
to have 30% co-pay—it’s a fact of life now. What we are
asking for is not illogical or irrational it’s not a position to
hurt anyone, the employees or union. Our mind is made
up.
RS And ours are too.
AM Didn’t want to come to this.
RS We are a committee it’s up to the people—we’ll
present them with the proposal, we will not recommend it
in anyway to the committee.7

Later that day, the Union posted a notice at the workplace in-
forming its members that a meeting would be held at the union
hall on the evening of May 18, to review and vote on the Re-
spondent’s contract proposals.
6. The May 18, 1995 meetings
On May 17, the Respondent posted a notice requiring all
employees to attend an important meeting the next morning at 7
a.m. sharp. The meeting was called ostensibly to discuss em-
ployee rights in the event of a strike, but in reality to discuss the
Respondent’s contract proposals. Peter and John Quirk attended
the Respondent’s meeting. Peter Quirk told the employees that
the Respondent had proposed a 25-percent employee health
insurance copayment which they would pay regardless of
which plan applied. Although he testified that he was merely
echoing the Respondent’s bargaining position, Peter Quirk
conceded on cross-examination that the gist of what he told the
employees was “regardless of how they voted that evening,
there was going to be a twenty-five percent co-payment.”
At the May 18 meeting, the Respondent also distributed a
letter to the employees which outlined a “few facts” about the
Union’s right to fine members for crossing a picket line. In
answering an employee’s question about the letter, Peter Quirk
explained that in the event of a strike, the Respondent reserved
the right to hire replacement workers and “as long as the re-
placement worker was holding that position, [a person’s] job
would be taken.” It was further explained that “if the replace-
ment worker was still working in the job when the strike ended,
the employee would not be able to return to his job, unless and
until the replacement worker quit.” Jones testified that Peter
Quirk told the employees that “if we went on strike, that he
could hire replacement workers and didn’t have to hire us
back.” His recollection on its face is consistent with Peter
Quirk’s testimony.
7. The Respondent’s unilateral implementation of its wage and
health insurance proposal
At the union meeting on May 18, the membership voted to
reject the Respondent’s proposals and to authorize a strike. On
May 19 or 20, the Respondent began distributing the health
insurance enrollment forms and on May 24, it held a health

7 Peter Quirk testified that as the session ended Business Agent Red
Sheehan told him that he thought the contract would be rejected and
that the employees would go on strike. In contrast, Sheehan testified
that he assured Peter Quirk that the Union would not strike. I credit
Peter Quirk’s recollection of the conversation, primarily because Shee-
han’s prediction of a strike is consistent with the Union’s bargaining
stance at that point in time. It would have made little sense for Sheehan
to steadfastly declare that the Union’s mind was made up, and then
minutes later vacillate by outright dismissing the possibility of a strike.
Peter Quirk’s recollection that Sheehan predicted a strike is further
supported by the fact that a few days later the union members voted to
reject the Respondent’s proposals and to authorize a strike.
QUIRK TIRE 923
insurance meeting to ensure that the employees signed up for
the new Blue Cross/Blue Shield plan.
By letter, dated May 30, Pisacreta objected to the change in
health insurance plans, as well as the unilateral implementation
of the Respondent’s health insurance proposal. He also pointed
out that “Local 25 remains willing to discuss your proposal to
change plans, as well as other issues, at the bargaining table.”
Pisacreta’s letter apparently crossed in the mail with a letter,
dated June 1, from Arthur Menard, Esquire, which stated:

This is to advise you that the company is implementing the
wage and benefit offers which it made to the Union prior to
rejection by the membership and subsequent impasse. With
respect to all other contract offers, the company is herewith
withdrawing them.

On June 1, the Respondent implemented its Blue Cross/Blue
Shield health insurance plan. It also put into effect its wage and
benefits proposal which included the incentive plans for the
mechanics and alignment technicians (while continuing in ef-
fect the wage incentive plans for recap and OTR employees).
In addition, the Respondent changed the work schedules of
several employees, who brought the matter to the attention of
Jones as their union steward. When he approached Service
Manager James DeSouza about the changes, DeSouza purport-
edly told Jones that he did not have to discuss the matter with
Jones because there was no union. 8
8. The additional changes implemented in August 1995
On or about August 1, Supervisor Rich Davis took over the
OTR repair service and gave Jones a written memorandum
which (1) established Jones’ daily work hours as 9:30 a.m. to 6
p.m.; (2) set his lunchtime at 1–1:30 p.m.; (3) required him to
request time off 2 weeks in advance; and (4) set a production
goal of four section repairs per day.9 The memo also stated that
Jones’ wage incentive would be altered as follows:

The incentive will be paid on a quarterly basis. The three
month total must be a minimum of $45,000.00 in order to
qualify for an incentive payment.

When Jones tried to explain to Davis that the new hours con-
flicted with his fire department schedule, he was referred to
John Quirk, who said that he would get back to Jones, but he
never did.
Around the same time, rumors were circulating that the Re-
spondent had stopped withholding union dues from the em-
ployees’ paychecks. Jones asked Office Manager Lutz to ex-
plain why union dues no longer were being deducted. Accord-
ing to Jones, Lutz told him that Peter Quirk said that there no
longer was a union and therefore it no longer had to deduct
union dues. Jones called Pisacreta, who told him to collect the
union dues directly from the employees and submit them to the
Union, which Jones proceeded to do.

8 Jones also testified that on or about August 24, he attempted to
speak to DeSouza about a warning given to employee Gil Oserio, but
he likewise was summarily rebuffed.
9 Once before, on April 4, 1995, the Respondent prepared a memo
seeking to establish a minimum production quota for Ken Jones. There
is no evidence, however, that the Respondent followed through with
this initiative or that the memo was ever discussed with Jones.
9. The discipline of Jones and the termination of
his employment
On August 31, Jones spoke with Peter Quirk about the dues
deductions. Jones testified that Peter Quirk told him that he
could not collect union dues because there was no union. Quirk
also told Jones to have Pisacreta call Arthur Menard for further
explanation, whereupon Jones told Peter Quirk to have Menard
call Pisacreta, who would tell him whether there was a union.
On February 22, 1996, Jones prepared a letter to Peter and
John Quirk complaining about how he had been treated over
the last few weeks and requesting a meeting to discuss his
treatment. Specifically, Jones stated that ever since he gave a
“deposition” to the Board, he had been unfairly treated and
harassed, and his quarterly wage incentive pay had been denied.
Neither Peter or John Quirk met with Jones to address his con-
cerns.
On March 11, Jones again solicited union dues and again
was told by Peter Quirk that there was no longer a union and
that he could not collect union dues. According to Jones, Peter
Quirk also said that the employees would be better off without
the union. When Jones told Peter Quirk that the employees
would “really get the shaft” without a union, Peter Quirk
walked away.
On March 12, Jones worked at the fire department during the
day. When he returned to his job with the Respondent on
March 13, his timecard was missing. He asked David Bradley,
a new supervisor, if he knew what happened to the timecard.
Bradley did not know, but said he would try to find out. Rather
than have Jones punch another timecard, Bradley told him to
wait while he looked into the matter. Jones testified that when
Bradley eventually returned, he told Jones that he was no
longer needed so he could go home. Jones therefore left. On
Friday, March 15, Arnie MacNeily, a union member, phoned
Jones on behalf of Don Roberts, plant manager, and asked
Jones to return his keys and uniforms. On Monday morning,
Jones returned all of the items to Lucy Wright. A few days
later, he received a letter from Bradley terminating his em-
ployment for failing to report to work on March 13–15; failing
to give his immediate supervisor an explanation for his ab-
sence; and failing to respond to messages left on his answering
machine.
C. Analysis and Findings
1. Deferral and dismissal
On or about December 9, 1997, the Respondent moved to
Collyerize and/or dismiss various allegations in the consoli-
dated complaint. Specifically, it moved that the allegations
contained in paragraphs 9, 10, 11(a)–(f),10 and 15 of the com-
plaint, be deferred to arbitration in accordance with the Board’s
decision in Collyer Insulated Wire, 192 NLRB 837 (1971), and
United Technologies Corp., 268 NLRB 557 (1984), or, alterna-
tively, as to all but the alleged discharge, that they be dis-
missed. The above-noted paragraphs allege that Quirk unlaw-
fully discharged Union Steward Ken Jones because of his union
activity and because he gave testimony in connection with an
unfair labor practice charge, and that the Respondent unlaw-
fully and unilaterally changed his wage incentive plan, work
shift, lunch hour, and requirements for requesting leave and
work schedules. In addition, the Respondent moved to dismiss
10 It should be pointed out that par. 11 of the consolidated complaint
(G.C. Exh. 1) does not contain any subpars.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 924
the allegations contained in paragraphs 7(c) and (d), which
assert that on or about August 31, 1995, and March 11, 1996,
Peter Quirk told Ken Jones that he could no longer collect un-
ion dues because there no longer was a union. Both the General
Counsel and the Charging Party oppose these motions. For the
reasons stated below, the Respondent’s motions are denied.
a. Deferral
In Hilton-Davis Chemical Co., 185 NLRB 241, 242 (1970),
the Board acknowledged that an arbitration clause does not
continue in effect after expiration of a collective-bargaining
agreement and therefore the parties to the expired agreement
have no obligation to process to arbitration matters arising after
the contract’s expiration date. See also W. F. Froh, Inc., 310
NLRB 384, 386 (1993). In Litton Financial Printing v. NLRB,
501 U.S. 190 (1991), the Supreme Court approved the Board’s
rationale in Hilton-Davis Chemical Co., and stated that if “par-
ties who favor labor arbitration during the term of a contract
also desire it to resolve postexpiration disputes, the parties can
consent to that arrangement by explicit agreement. Further, a
collective-bargaining agreement might be drafted so as to
eliminate any hiatus between expiration of the old and execu-
tion of the new agreement or to remain in effect until bargain-
ing to impasse.” Id. at 201. The complaint alleges that Jones
was unlawfully discharged on March 13, 1996, and that his
wage incentive plan, work hours, etc., were unlawfully unilat-
erally changed on August 1, 1995. Thus, by the time the events
at issue in paragraphs 9, 10, 11, and 15 of the consolidated
complaint took place, the parties’ collective-bargaining agree-
ment had long since expired (Jan. 31, 1994) and impasse had
existed since May 15 (as determined below). The Union op-
poses postexpiration arbitration, and the arbitration clause of
the expired contract (G.C. Exh. 2, p. 9) does not reflect an in-
tent by the parties for arbitration to continue beyond the con-
tract expiration date. Therefore, in accordance with Hilton-
Davis Chemical Co., no basis exists for deferral.
In addition, the Board has long held that alleged violations of
Section 8(a)(4) of the Act will not be deferred to arbitration.
International Harvester Co., 271 NLRB 647 (1984). The Re-
spondent’s motion glosses over the fact that paragraphs 9 and
11 allege that Ken Jones was discharged in retaliation for giv-
ing testimony to the Board in violation of Section 8(a)(4) of the
Act. For these additional reasons, deferral is inappropriate.
Accordingly, the Respondent’s motion to Collyerize is de-
nied.
b. Dismissal
The Respondent asserts that paragraph 15 of the complaint
should be dismissed in any event because under the terms of the
expired contract (specifically arts. VI and X), as read in con-
junction the management-rights clause (art. V), the Respondent
had the flexibility to change work hours, set lunch and break-
times, and establish a procedure for requesting leave. The Re-
spondent also argues that because Jones has a flexible wage
incentive plan, it was entitled to implement changes to his plan.
Under NLRB v. Katz, 369 U.S. 736 (1962), once the parties
reach impasse the terms and conditions of employment con-
tinue in effect by operation of the Act because there are no
longer agreed-upon terms. Instead, the employer is unilaterally
barred from changing the terms, which are imposed by law,
without bargaining with the union. Where, as here, the em-
ployer seeks to make changes which it contends are permitted
under the “flexible” terms of the contract, the issue becomes
whether or not those “flexible” terms constitute a waiver of the
union’s statutory right to bargain or whether the union has oth-
erwise waived its right to bargain. In either event, a mixed
question of fact and law is present. Because the Respondent is
not entitled to dismissal as a matter of law, and because the
Union did not waive its statutory right to bargain for the rea-
sons stated below, the motion to dismiss paragraph 15 of the
complaint is denied.
The Respondent also moves to dismiss the allegations of
paragraphs 7(c) and (d) of the consolidated complaint which
assert that Peter Quirk told Ken Jones on August 31, 1995, and
March 11, 1996, that he could not collect union dues because
there no longer was a union. The Respondent contends that
Peter Quirk told Jones that the Company could no longer check
dues and that he never told Jones that he could not collect the
dues himself. Because the Respondent is not entitled to a dis-
missal as a matter of law, and because the testimony of Ken
Jones has been credited for reasons delineated herein, this as-
pect of the motion to dismiss is also denied.
2. The unlawfully delayed payments to the Union’s health and
welfare Fund
The General Counsel and the Charging Party argue, and the
complaint alleges, that the Respondent violated Section 8(a)(5)
of the Act when it unilaterally delayed payment to the Union’s
health and welfare fund. The Respondent argues that the delays
do not amount to bad faith bargaining and therefore no viola-
tion occurred.
It is settled law that when a collective-bargaining agreement
expires, an employer must maintain the status quo unless and
until the parties reach a new agreement or they bargain in good
faith to impasse. Intermountain Rural Electric Assn. v. NLRB,
984 F.2d 1562, 1566 (10th Cir. 1993). A contractually required
payment to a health and welfare trust fund constitutes a term
and condition of employment which survives the expiration of
the contract. Mac Plastics, 314 NLRB 163 (1994). The failure
of an employer to make a series of contractually required con-
tributions to a trust fund without prior notice to, or the consent
of, a union violates Section 8(a)(5) of the Act. Zimmerman
Painting & Decorating, 302 NLRB 856, 857 (1991). Delin-
quent payments likewise violate the Act, Detroit Cabinet &
Door Co., 247 NLRB 1415, 1416–1417 (1980), and an em-
ployer’s inability to pay is not a valid defense. Zimmerman,
supra at 857.
The contract which expired on January 31, 1994, required
the Respondent to make a payment to the Teamsters Health and
Welfare Fund on the 10th day of every month, which it did not
do during the period of February to May 1995. The first of
those payments was not made until the Respondent began im-
plementing its own health insurance proposal on or about May
25. The balance of payments were not made until November
1995. Although Peter Quirk testified that the Respondent could
not pay the trust fund because of a cash-flow problem, the evi-
dence establishes that on June 1, the Respondent began paying
insurance premiums for its own Blue Cross/Blue Shield plan,
which supports the inference that even though the money was
available, the Respondent did not view its contractual obliga-
tion to pay the Union’s trust fund as a priority. In any event, the
fact that the Respondent may have had a cash-flow problem
does not excuse the delay. Id. at 857.11 The credible evidence

11 In an earlier affidavit, Peter Quirk said that the failure to make
payments was not intentional; rather, it was the result of a bookkeeping
QUIRK TIRE 925
therefore shows that the failure to pay was intentional and un-
dertaken in bad faith. I therefore find that the delinquent pay-
ments constituted a renunciation of the terms and conditions of
the parties’ agreement, as well as an abrogation of the Respon-
dent’s obligation to maintain the status quo after the 1991–1994
contract expired, in violation of Section 8(a)(5) of the Act.
3. Impasse
The evidence discloses that prior to May 15, there had been
some give-and-take at the bargaining table with agreement on a
number of issues. The Respondent had provided a detailed
rationale for its health insurance and wage incentive plan pro-
posals and the Union had undertaken its own comparative
analysis of the health insurance plans. But even with the assis-
tance of a Federal mediator, the two sides remained far apart on
the two primary issues: health insurance copayment and a wage
incentive plan for mechanics and alignment technicians. When
the parties met with a Federal mediator on May 15, negotiations
remained deadlocked. “The parties [had] discussed a subject or
subjects in good faith, and, despite their best efforts to achieve
agreement with respect to such, neither party [was] willing to
move from its position.” Hi-Way Billboards, Inc., 206 NLRB
22, 23 (1973). Nothing better illustrates the posture of negotia-
tions than the final salvo of the principal negotiators, who al-
most simultaneously declared “our minds are made up” as they
prepared to walk out the door. The evidence reflects that at that
point the only thing left to do was to submit the contract pro-
posals for an up or down vote by the union members because
there was nothing else to discuss. I therefore find that the Re-
spondent and Union were at impasse on May 15.
The General Counsel nevertheless argues that impasse did
not exist on May 15 because the union members had not yet
voted to reject the Respondent’s contract proposals. It cites
Mary Ann’s Bakery, 267 NLRB 992, 994 (1983), for the propo-
sition that impasse does not occur until the contract is accepted
or rejected by the union membership. There, the Board affirmed
the administrative law judge’s conclusion that the parties were
not at impasse under facts similar to those here. However, the
decision there, as well as here, turns on whether further nego-
tiations may have resulted in the parties in reaching an agree-
ment. In Mary Ann’s Bakery, the judge concluded that further
negotiations would have facilitated an agreement. In the factual
context of this case, however, I find, it would not. The Respon-
dent and the Union by their words and conduct on May 15,
were stalemated, that is, their minds “were made up.” With no
other alternative, Sheehan put the matter in the hands of the
union membership. If the union members had voted to accept
the Respondent’s contract proposals that would have changed
the circumstances thereby ending the deadlock. Because they
voted to reject the Respondent’s proposals, the deadlock con-
tinued.
The General Counsel and the Charging Party also argue that
impasse was precluded by the Respondent’s unremedied unfair
labor practice, that is, its failure to make timely payments to the
Teamsters Health and Welfare Fund from February to May

error that came to his attention when an unfair labor practice charge
was filed. When he was later asked to reconcile the inconsistency be-
tween his testimony and affidavit statement, his explanation was con-
fusing and unpersuasive. Peter Quirk also attempted to downplay the
significance of the delayed payments by stating that the Union told his
office manager, Josephine Lutz, that the Respondent should do the best
it could in making up the delayed payments.
1995. However, “[t]here is no ‘presumption that an employer’s
unfair labor practice automatically precludes the possibility of
meaningful negotiations and prevents the parties from reaching
good faith impasse.’ NLRB v. Cauthorne, 691 F.2d 1023, 1025
(D.C. Cir. 1982). Rather, impasse is precluded if there is a
causal connection between the employer’s unremedied changes
and the subsequent deadlock in negotiations. [Citations omit-
ted.]” Intermountain Rural Electric Assn., supra 984 F.2d at
1569–1570. While it appears that in anticipation of a possible
deadlock, the Respondent stopped making payments in order to
facilitate a transition to the Blue Cross/Blue Shield plan, there
is no evidence that the failure to make timely payments affected
negotiations. Quite the contrary, the parties met with a Federal
mediator in March 1995, the Union took time to analyze the
Respondent’s new proposals in April 1995, and the negotiations
reconvened at the Respondent’s urging in May 1995. I find no
evidence of a causal connection between the failure to make
timely payments and the negotiations or impasse.
The General Counsel and the Charging Party also assert that
the Respondent committed other unfair labor practices, as more
fully described below, on the morning of May 18, which like-
wise precluded impasse. Therefore, what transpired after May
15 did not cause or contribute to the impasse. There is no evi-
dence, however, that the Respondent’s conduct after May 15,
caused or contributed to the impasse.
4. Respondent’s postimpasse conduct in violation of Section
8(a)(1) and (5) of the Act
a. Peter Quirk’s remarks on May 18, 1995
The complaint alleges and the General Counsel argues that
Peter Quirk’s statement on May 18, that there would be a co-
payment regardless of the outcome of the vote, violated Section
8(a)(1) of the Act. It asserts that the remarks tended to under-
mine the Union, which was not recommending ratification, and
influence the employees by suggesting that their vote was an
exercise in futility. I agree. The undisputed evidence establishes
that the Respondent wanted the union members to ratify the
contract proposals, that it knew that the Union was not going to
recommend ratification, and that it knew that the ratification
vote was scheduled for the evening of May 18. The evidence
also establishes the Respondent wanted to avoid the possibility
of a strike. Thus, the evidence shows that there was good rea-
son for Peter Quirk to want to influence how the union mem-
bers voted. In light of the timing of Peter Quirk’s statements
(only hours before the ratification vote), the manner in which
the remarks were made (at a mandatory employee meeting),
and the content of the message (there will be a copayment re-
gardless), I find that Peter Quirk’s remarks were intended to
undermine the Union’s status as the exclusive bargaining repre-
sentative, as well as its recommendation against ratification in
violation of Section 8(a)(1) of the Act.
b. The other remarks attributed to Peter and John Quirk
on May 18
The complaint also alleges that the Respondent violated Sec-
tion 8(a)(1) of the Act because Peter Quirk told the employees
that they would be permanently replaced if they went on strike.
The evidence, however, falls short of establishing that the em-
ployees were told that they “would” be permanently replaced.
Both the testimony of Peter Quirk and Union Steward Jones
establish that Quirk told the employees that they “could” be
replaced permanently in the event of a strike. Contrary to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 926
General Counsel’s assertions, the remark does not constitute a
threat and the evidence does not establish that it was made in
the context of other threats. Nor did a violation occur because
Quirk did not convey an accurate and complete explanation of
the employees’ reinstatement rights under the Act. The Board
has long held that “an employer may address the subject of
striker replacement without fully detailing the protections nu-
merated in the Act [The Laidlaw Corp., 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S.
920 (1969)], so long as it does not threaten that, as a result of a
strike, employees will be deprived of their rights in a manner
inconsistent with those detailed in Laidlaw.” Eagle Comtronics,
263 NLRB 515, 516 (1982). While Peter Quirk’s comments
may have been legally incomplete, they do not suggest or inti-
mate that any employee rights would be denied as a result of a
strike.12 I therefore shall recommend that the allegations con-
tained in paragraph 7(a)(iv) of the complaint be dismissed.
The complaint also alleges that John Quirk unlawfully
threatened employees by telling them that they would be termi-
nated if they did not ratify the Respondent’s contract proposals.
Jones testified that after the May 18 meeting ended, John Quirk
told some employees that if they did not vote for the Respon-
dent’s contract proposals, they should not come to work the
following day. John Quirk generally denied making this state-
ment. Upon further inquiry, Jones testified that he did not actu-
ally hear John Quirk make the statement “first hand,” but that it
purportedly was made to a group of employees, who conveyed
the information to Jones. A few minutes later Jones contra-
dicted himself by saying that he heard John Quirk make the
statement during the meeting. No one was called as a witness to
corroborate Jones’ testimony. In light of the contradiction, the
lack of corroboration, and the reliance on hearsay, and in the
absence of credible evidence that John Quirk made the state-
ment, I shall recommend that the allegations of paragraph
7(a)(ii) of the complaint be dismissed.
According to paragraph 7(a)(iii) of the complaint on May 18,
the Respondent threatened the employees with job loss if they
refused to enroll in Respondent’s new health plan. Ken Jones
testified that, in addition to Peter and John Quirk, the May 18
meeting was attended by Lucy Wright, a secretary, and Jose-
phine Lutz, the office manager, who were employed by Re-
spondent. Jones stated that Wright and Lutz distributed enroll-
ment forms for health insurance coverage and told the employ-
ees to return them completed by June 1 or they would not have
any health insurance. Jones refused to sign his form without
consulting the Union, so he faxed a copy to Pisacreta when the
meeting ended. According to Jones, the form was discussed at
the union meeting that evening. I am not persuaded that it was,
nor am I persuaded that the health insurance form was passed
out at this meeting. Instead, the evidence reflects that Jones had
possibly confused the May 18 meeting with a later meeting
held on May 24. Lucy Wright credibly testified that she did not
attend the May 18 meeting and to the best of her knowledge
neither did Josephine Lutz. Moreover, the General Counsel

12 The Charging Party at p. 22 of its brief implies that the employees
would have been unfair labor practice strikers and that the Respondent
therefore violated the Act by telling unfair labor practice strikers that
they would be permanently replaced. There is no evidence which even
remotely supports an inference that if the employees had chosen to
strike, it would have been responsive to an unfair labor practice. Rather,
the evidence supports an inference that a strike, if it had occurred,
would have been based on economic issues.
presented no evidence to corroborate Jones’ testimony—not
even Pisacreta substantiated it. Pisacreta was unsure when he
first saw the enrollment form, and he did not indicate how or
when he came to possess it. Although he recalled receiving a
phone call from Jones stating that the Respondent was asking
the union members to fill out the forms, and although he ad-
vised him to have everyone fill out the forms or else they would
not have any health insurance, Pisacreta could not remember
when he received the call. Pisacreta also failed to corroborate
Jones’ assertion that the enrollment form was discussed at the
union meeting on May 18. Jones’ recollection of the May 18 is
therefore questionable.
On the other hand, Peter Quirk’s testimony about the May 18
meeting was plausible. While he admitted that he told everyone
that they would have to pay a 25-percent copay regardless, he
denied that the enrollment forms were given out on May 18 and
testified that Josephine Lutz distributed them on either the Fri-
day or Monday after the ratification vote (i.e., either on May 19
or 22). He also said that another meeting was held on May 24,
to explain the health insurance plan. Peter Quirk stated that
after the May 24 meeting, he faxed a copy of the enrollment
form to Pisacreta because he had heard that the Union was tell-
ing its members not to sign the form. I therefore credit Peter
Quirk’s testimony that the enrollment forms were not distrib-
uted on May 18.
Peter Quirk also denied that the employees were told that
they would be terminated if they did not join the Blue
Cross/Blue Shield plan. Rather, the unrebutted testimony estab-
lishes that the Respondent had a practice of requiring employ-
ees either to participate in the company sponsored health insur-
ance plan or provide proof of alternative coverage as a condi-
tion of employment. I credit his testimony that the practice was
followed when the Respondent sought to implement its Blue
Cross/Blue Shield plan and that no one was threatened with
termination if they did not sign up.
Because Jones’ recollection of the May 18 meeting is ques-
tionable and in light of the credible evidence concerning the
Respondent’s practice, I shall recommend that the allegations
of paragraph 7(a)(iii) of the complaint be dismissed.
c. The implementation of the Respondent’s health insurance
proposal
Where the parties have bargained to good-faith impasse, an
employer may proceed to implement the changes it proposed to
the union in negotiations without violating Section 8(a)(5) of
the Act. Taft Broadcasting Co., 163 NLRB 475 (1967), enfd.
sub nom. Television Artists AFTRA v. NLRB, 395 F.2d 622
(D.C. Cir. 1968). Having reached good-faith impasse on May
15, the employer was entitled to implement its health insurance
proposal after that date, which it did. The General Counsel and
the Charging Party do not argue, nor does the evidence reflect
that the health insurance proposal implemented was different in
any respect from the plan proposed by the Respondent during
negotiations. Accordingly, I shall recommend that allegations
of paragraph 15(c) of the complaint be dismissed.
d. The unlawful unilateral implementation of the Respondent’s
wage proposal
By letter dated June 1, 1995, the Respondent’s counsel ad-
vised the Union that it was implementing its final wage and
benefit offers, which included a wage incentive plan for me-
chanics and alignment technicians, and which afforded the
Respondent complete discretion to adjust wages and the wage
QUIRK TIRE 927
incentive plans in response to marketplace conditions. The
Respondent’s final offer stated:

All other employees shall be paid a base rate on not less than
$8.90 an hour, however, the Company may continue its cur-
rent marketplace pay practices for the term of this contract.

According to Pisacreta’s unrebutted testimony, when this lan-
guage was discussed in the final bargaining session, the Re-
spondent indicated that it wanted to continue its “marketplace
practice” of paying employees what it thought they were
worth.13 The evidence reflects that by this provision the Re-
spondent sought to retain unlimited discretion to adjust wages
and/or alter the wage incentive plans, without any established
criteria for determining the method, manner, time, duration or
amount of the adjustments.
While the Respondent was free to insist to impasse on its
wage proposal, it was not free to unilaterally implement the
proposal after impasse without consulting the Union. Colorado-
Ute Electric Assn., 295 NLRB 607, 609–610 (1989). In
McClatchy Newspapers, 322 NLRB 812 (1996), the Board held
that wage proposals, like the one here,

“[That] confer on an employer broad discretionary powers
that necessarily entail recurring unilateral decisions regarding
changes in the employees’ rates of pay. . .[are] inherently de-
structive of the fundamental principles of collective bargain-
ing” violative of Section 8(a)(5) of the Act. [Quoting from
McClatchy Newspapers, 321 NLRB 1386, 1388, 1391 (1996)
(McClatchy II).]

Contrary to the Respondent assertions, the Union did not
waive its statutory right to bargain over wage increases under
Section 8(a)(5). By letters dated May 4 and 30, the Union ob-
jected to the proposed changes. There is no language in the
expired contract waiving the right to bargain and the credible
evidence shows that the marketplace practice was unilaterally
implemented without notice or an opportunity for the Union to
bargain.
Because the Respondent’s wage proposal as unilaterally im-
plemented on June 1, 1995, contained a provision allowing it
broad discretionary power to unilaterally adjust wages and the
wage incentive plans without any established criteria, it contra-
venes the Board’s ruling in McClatchy II. Accordingly, I find
that the Respondent unlawfully implemented its wage proposal
on or about June 1 in violation of Section 8(a)(5) of the Act.
e. DeSouza’s unlawful refusal to recognize and deal with Un-
ion Steward Ken Jones
The complaint alleges (par. 7(b)), and Jones testified, that on
two occasions Service Manager James DeSouza told him that
there no longer was a union and that he did not have to deal
with Jones as the union steward. The first time was in June
1995, when several employees had their work schedules
changed,14 and the next time was in August 1995, when em-
ployee Gil Oserio received a disciplinary warning. DeSouza
denied making those remarks and denied that he refused to
recognize Jones as the union steward. He further denied ever

13 Effectively the Respondent sought to perpetuate the unilaterally
established wage incentive plans, while at the same time pay employees
what it thought they were worth in accordance with competitive market
conditions.
14 I note parenthetically that DeSouza did not deny that the work
schedules were unilaterally changed.
having any discussion with Jones in his capacity as union stew-
ard regarding any employee problems or discipline. His denials
were so broad, however, that he was unconvincing. His testi-
mony was generalized and he had trouble recalling specifics
about the warnings he gave to employee Oserio. For these, and
demeanor reasons, I do not credit DeSouza’s testimony.
In addition, a longitudinal view of all the evidence lends cre-
dence to Jones’ testimony. The evidence shows that from June
1, 1995, and thereafter, the Respondent operated as if there was
no union. It had stopped making payments to the Teamsters
Union Health and Welfare Fund, it had the employees enroll in
its Blue Cross/Blue Shield plan, it had unilaterally implemented
its contract proposals, and it had stopped deducting union dues
from employee paychecks. Around the same time, the Respon-
dent unilaterally changed Jones’ work schedule, without taking
into account his tour of duty at the fire department, reduced his
wage incentive plan, and advised him of a daily production
quota. The evidence supports an inference that the Respondent
wanted to minimize Jones’ activity as a union representative
and that it wanted to emphasize to the employees that the Union
was no longer useful. The credible evidence therefore makes it
more likely than not, that DeSouza told Jones there no longer
was a union and that he did not have to discuss employee con-
cerns and grievances with Jones.
I therefore find that the Respondent violated Section 8(a)(1)
and (5) of the Act,15 when DeSouza told Jones that there no
longer was a union and refused to deal with him as union stew-
ard.
f. The unilateral changes made in August 1995 to Ken Jones’
terms and conditions of employment
The undisputed evidence shows that on or about August 1,
1995, Truck Service Manager Rich Davis gave Jones a memo-
randum establishing new work rules, which changed Jones’
work hours to 9:30 a.m.–6 p.m.; set his lunchtime at 1–1:30
p.m.; allowed him a 15-minute break in the morning and after-
noon; and required that he request time off 2 weeks in advance.
In addition, the memo required Jones to complete four section
repairs per day and restructured his wage incentive plan so that
he would be paid on a quarterly basis, if a minimum of $45,000
business was completed in the 3-month period. The memo con-
cluded by encouraging Jones to contact Davis with any com-
ments or suggestions.
The complaint alleges that these unilateral changes violated
Section 8(a)(5) of the Act. The Respondent argues that the
changes were not unilateral. Rather, the Respondent asserts
that, with respect to the changes in hours, lunchbreaks, and the
procedure for requesting leave, they were contemplated within
the flexible terms of the expired collective-bargaining agree-
ment, specifically article VI (Hours of Work and Overtime),
article X (Leaves of Absence) and article V (Management
Rights). The Respondent further asserts that there is nothing
which precludes it from acting in accordance with mutually
agreed-upon contract provisions. The Respondent’s argument,
however, overlooks the fact that as a matter of law, “an expired
[collective-bargaining agreement] . . . is no longer a ‘legally
enforceable document.’” Litton Financial Planning, supra, 501
U.S. at 206. “Under Katz, terms and conditions continue in
effect by operation of the NLRA. They are no longer agreed-
15 Although the complaint does not allege a violation of Sec. 8(a)(5),
I nevertheless find that the plain facts support a violation of that section
of the Act as well.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 928
upon terms; they are terms imposed by law, at least so far as
there is no unilateral right to change them.” Id. Unilateral ac-
tion with respect to any mandatory subject of bargaining is
prohibited “for it is a circumvention of the duty to negotiate
which frustrates the objective of Section 8(a)(5).” Katz, supra,
369 U.S. at 743.16
The issue therefore is not whether the expired collective-
bargaining agreement authorized the Respondent to make the
changes. The issue is whether or not any of the provisions of
the expired collective-bargaining agreement cited by the Re-
spondent authorized it to make these changes without first noti-
fying the Union and affording it an opportunity for adequate
consultation. That is, do the contractual provisions cited by the
Respondent constitute a waiver of the Union’s right to bargain.
I find that they do not.
Although Respondent asserts that article VI broadly defines
“Hours of Work and Overtime,” it acknowledges that no con-
tract provision specifically addresses employee shifts, schedul-
ing, or lunch hours. While it points out that article X, pertaining
to leaves of absence, requires a written application for an ex-
tended leave of absence, it does not identify any language in the
contract which requires advance notice (of any kind) to take a
day or two off. There is not a single provision in the expired
contract that states or suggests that the Union waived its statu-
tory right to be notified and consulted with respect to these
changes.
To compensate for the absence of specific contractual au-
thority for unilaterally implementing the changes, the Respon-
dent intimates that article V, the management-rights clause,
vests management with authority to control all aspects of busi-
ness not limited by the contract, thereby permitting Respondent
to make unilateral changes. It states:

The management of the business and operations of the Com-
pany, and the authority to execute all the various duties, func-
tions, and responsibilities thereto, remain vested in the Com-
pany, subject only to such limitations as are specifically im-
posed thereon by this Agreement.

The provision does not specifically address the right to change
work hours, break and lunchtimes, or the right to establish a
procedure for requesting leave or the right to establish a pro-
duction quota. The Board has held that a generally worded
management-rights clause, like this one, will not be construed
to waive statutory bargaining rights. Doerfer Engineering, 315
NLRB 1137, 1142 (1994). The Board has further held that the
waiver of bargaining rights in a management-rights clause is
limited to the duration of the contract in which the waiver is
contained. Buck Creek Coal, 310 NLRB 1240 (1993). I there-
fore find that the management-rights clause (art. V), in the ex-
pired contract, standing alone or when read in tandem with the
other contract provisions, does not constitute a waiver of the
Respondent’s duty to bargain over changes to Jones’ work
hours, break and lunchtimes, or procedure for requesting leave.

16 Of course, where, as here, the parties have bargained in good faith
to impasse, an employer does not violate the Act by making unilateral
changes that are reasonably comprehended within the preimpasse pro-
posals and are consistent with the offers the Union has rejected. There
is no evidence, nor does the Respondent contend, that these specific
changes as to Ken Jones’ terms and conditions of employment were
ever discussed during negotiations or that they were implemented after
notifying and consulting with the Union.
In addition, the evidence establishes that the Respondent’s
unilateral scheduling of Jones between 9:30 a.m.–6 p.m., actu-
ally changed the status quo as established by existing policy.
Peter Quirk stated that he changed work schedules on a regular
basis to accommodate employee personal schedules. He testi-
fied that “[w]hatever worked for them is what we did. My atti-
tude was a happy employee would work better.” Among those
affected by the policy was Ken Jones, who routinely had his
work schedule arranged to accommodate his duty tours at the
fire department. He typically was scheduled to work between
7:30 a.m.–4 p.m., and was allowed to leave early when he had
to work nights at the fire department. He also was allowed to
come to work late when he work the night before at the fire
department. Although John and Peter Quirk testified that the
flexible scheduling for Jones ended in 1994, the evidence estab-
lishes that the practice continued into 1996 (R. Exh. 26B). The
August 1 change therefore was inconsistent with the policy of
accommodating employee personal schedules. Accordingly, I
find that the August 1 change was a change in the status quo.
Further, the evidence reflects that prior to August 1, Jones
was allowed to take lunch and breaks, and to take time off,
whenever he wanted. The memo therefore placed restrictions
on these aspects of his employment that never before existed
thereby changing the status quo.
I therefore find that the Respondent violated Section 8(a)(5)
of the Act, when it unilaterally implemented changes in Ken
Jones’ work hours, lunch and breaktimes, and when it unilater-
ally imposed requirements for requesting time off.
With respect to Ken Jones’ wage incentive plan, the evi-
dence shows that the August 1, memo significantly changed the
terms of his wage incentive plan which had been in effect since
1993. (Compare: G.C. Exhs. 20 and 16.) The Respondent ar-
gues that the changes to Jones’ plan were not unilateral changes
because a “flexible” wage incentive plan was already in place,
which Jones never objected to. The evidence discloses that the
wage incentive plan was unilaterally implemented without the
Local 841’s knowledge or consent. Jones testified that he never
told any union representative about his wage incentive plan.
Even though he was the union steward, I find that his acquies-
cence does not constitute a clear and unmistakable waiver by
the Union of its statutory right to notice and an opportunity to
bargain. Cf. Owens-Corning Fiberglass, 282 NLRB 609
(1987) (a union’s acquiescence in previous unilateral changes
does not operate as a waiver of its rights to bargain over such
changes for all time). Further, in the absence of any evidence
that the Respondent changed, attempted to change, or was enti-
tled to change Jones’ plan at any time between its inception and
impasse, the changes that were unilaterally implemented in
August 1995, represent a change in the status quo over which
the Union had a right to bargain. See Leeds & Northrup, Co. v.
NLRB, 391 F.2d 874 (3d Cir. 1968), enfg. 162 NLRB 987
(1967).
Also, to the extent that the Respondent seeks to argue that,
pursuant to its “final offer” proposal it had unlimited discre-
tionary authority to change Jones’ wage incentive plan, the
implementation of that authority as noted above contravenes
the holding of McClatchy II and likewise constitutes a violation
of the Act. I therefore find that Respondent violated Section
8(a)(5) of the Act by unilaterally changing Ken Jones’ wage
incentive plan on or about August 1, 1995.
The evidence also shows that the Respondent unlawfully at-
tempted to establish a production quota for Jones by, and
QUIRK TIRE 929
though, the August 1 memo. There is no evidence that Jones
was ever required to complete an established number of repairs
per day nor was a proposal to that effect introduced during
negotiations. I therefore find that the Respondent violated Sec-
tion 8(a)(5) of the Act by unilaterally implementing or attempt-
ing to implement a production quota for Jones on August 1.17
Finally, I find that by dealing directly with Ken Jones, in the
course of making the unlawful unilateral changes above, and by
encouraging Jones to direct his comments or suggestions to
Rich Davis, a supervisor, the Respondent also violated Section
8(a)(5) of the Act.
g. The unlawful refusal to allow Ken Jones to collect
union dues
The General Counsel argues, and the complaint alleges, that
the Respondent violated Section 8(a)(1) of the Act in August
1995 and March 1996, when Peter Quirk told Ken Jones there
was no longer a union and that Jones could not collect union
dues. The General Counsel contends that these statements im-
plied that it was futile for the employees to continue to be rep-
resented by the Union. The Respondent asserts that Peter Quirk
never made these remarks.
(1) The August 31, 1995 conversation
Ken Jones credibly testified that on August 31, he went to
Josephine Lutz, the Respondent’s office manager, to find out
why union dues were not being deducted by the Respondent.
His unrebutted testimony establishes that she told him that Pe-
ter Quirk said there no longer was a union and therefore the
Respondent no longer had to deduct union dues. Jones also
testified that when he attempted to collect the union dues him-
self, Peter Quirk in essence reiterated the same statement to
him, saying there no longer was a union and that that Jones
could not collect union dues. Peter Quirk denied that he ever
told Jones that there was no union or that Jones was told he
could not collect dues. Rather, Quirk said that he told Jones that
“if he wanted to collect the funds, it was up to him, to go right
ahead and do it.” I am skeptical that Peter Quirk encouraged
Jones to collect union dues. By this time the Respondent had
unilaterally implemented its contract proposals, as well as other
workplace changes. It had also altered Jones’ terms and condi-
tions of employment and refused to recognize his position as
union steward. It is therefore less than likely that the Respon-
dent would have done anything to accommodate the Union,
particularly by encouraging it to collect union dues. In addition,
while Peter Quirk denied telling Jones that there was no union,
he did not deny that he told Josephine Lutz not to collect dues
because there was no longer a union. Lutz, who was still em-
ployed by the Respondent, was not called as a witness to deny
Jones’ statements or to corroborate Peter Quirk’s testimony.
Her absence warrants an adverse inference that she would not
have corroborated Peter Quirks’ testimony. Guardian Indus-
tries Corp., 319 NLRB 542 (1995).
Finally, Peter Quirk’s conduct immediately following the
conversation with Jones is inconsistent with his testimony that
he did not object to Jones collecting union dues. The undis-
puted evidence shows that minutes after speaking to Jones
about collecting union dues on August 31, Peter Quirk called
Jones into his office and gave him a written warning for alleg-

17 In its brief, the Respondent does not argue that the unilateral im-
position of a production quota on Jones, which was contained in the
August 1 memo, was lawful.
edly leaving work at 3 p.m., on August 29. Peter Quirk never
explained why he chose that moment to discipline Jones for
something that happened 2 days before. It is hard to reconcile
why he would tell Jones “to go right ahead” and collect dues,
and then minutes later give him a written warning. The incon-
sistency between his testimony and his conduct taints his credi-
bility. His conduct supports an inference that he opposed the
collection of union dues, rather than encouraged it.
For these, and demeanor reasons, Peter Quirk’s testimony on
this point was not credible. I therefore find that the Respondent
violated Section 8(a)(1) of the Act, when Peter Quirk told Jones
on August 31, that he could not collect union dues.
(2) The March 11, 1996 conversation
Ken Jones also testified that a similar scenario occurred on
March 11, 1996. As he was soliciting union dues from employ-
ees, Peter Quirk told him there no longer was a union and that
he could not collect dues. Unlike the August 31 encounter, the
Respondent takes the position that the March 11 conversation
never occurred because Jones did not work on March 11. Rely-
ing first on a timecard for Jones (G.C. Exh. 24), the Respondent
asserts that Jones took the day off on March 11, because his
timecard was not clock punched. Instead, the timecard has “8
hours” was handwritten on it for March 11, which the Respon-
dent argues is evidence that Jones took the day off.
But the neither the timecard or any other payroll record re-
flects that Jones was actually off “8 hours” on March 11. To the
contrary, General Counsel’s Exhibit 25, which is a payroll
worksheet for the week of March 11, discloses that Jones
worked 8 regular hours on March 11. Peter Quirk testified that
Josephine Lutz would be the best person to explain the docu-
ment, but she was not called as a witness by Respondent. Her
absence warrants an adverse inference that she would not have
corroborated the Respondent’s interpretation of the timecard
and payroll record. Guardian Industries Corp., supra.
The Respondent also relies on the testimony of John Quirk,
who said that he was “absolutely certain Ken Jones did not
work that day” because he got a call from one of his biggest
customers that morning regarding a tire that Jones was repair-
ing. Quirk remembered the call because he could not find Jones
to ask him about the repair. The evidence shows, however, that
John Quirk may have had his dates mixed up. For example, he
testified that David Bradley did not begin work until the week
after March 11, even though the undisputed evidence shows
that Bradley began work on March 12. And despite Quirk’s
insistence that he worked the week of March 11, the evidence
reflects that he was on vacation. According to General Coun-
sel’s Exhibit 25, which is a Respondent’s payroll sheet for
March 11–17, 1996, John Quirk received vacation pay for the
entire week. When asked to explain the inconsistency, John
Quirk could not explain why Josephine Lutz had marked “vaca-
tion” on the payroll record. He later testified that instead of
taking vacation, he sometimes gets a double pay, which is re-
flected as vacation on the payroll record. He admitted that there
was no way to tell whether that is what happened without look-
ing at other management documents. But none of those docu-
ments was offered into evidence nor was Lutz called to explain
what she had done and why. The absence of this corroborating
evidence warrants an adverse inference that Lutz would not
have corroborated John Quirk’s testimony. The credible evi-
dence therefore raises serious doubts about John Quirk’s recol-
lection and whether he actually worked the week of March 11.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 930
On the other hand, the evidence establishes that Peter Quirk
and Jones could have had the conversation on March 11, be-
cause Quirk was at work on that day. Although he testified that
he attended a funeral on March 11, he conceded that he worked
at least part of the day. Given that concession, plus Jones’
credible testimony that he worked on March 11, I find that
Jones and Peter Quirk not only worked on March 11, but during
the course of the day, Peter Quirk told Jones there no longer
was a union and he could not collect union dues. Accordingly, I
find that Peter Quirk’s remark on March 11 that there was no
longer a union and Jones could not collect union dues, violated
Section 8(a)(1) of the Act.
5. The unlawful discipline and discharge of Ken Jones
In Wright Line, 251, NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
established an analytical framework for deciding discrimination
cases turning on employer motivation. The General Counsel
must persuasively establish that the evidence supports an infer-
ence that protected conduct was a motivating factor in the em-
ployer’s decision.18 Specifically, the General Counsel must
establish union activity, knowledge, animus or hostility, and
adverse action which tends to encourage or discourage union
activity. Farmer Bros. Co., 303 NLRB 638, 649 (1991). Once
that is accomplished, the burden shifts to the employer to per-
suasively establish by a preponderance of the evidence that it
would have made the same decision even in the absence of
union activity. T&J Trucking Co., 316 NLRB 771 (1995). In-
ferences of animus and discriminatory motivation may be in-
ferred from the total circumstances proved. In some cases, ani-
mus and discriminatory motivation may be inferred in the ab-
sence of direct evidence. Fluor Daniel, Inc., 304 NLRB 970
(1991). Evidence of suspicious timing and false reasons given
in defense will support such inferences.
a. The August 31 written warning
The credible evidence establishes that on August 31, Jones
was engaged in union activity, known to and opposed by the
Respondent, which was followed by an adverse action which
tended to discourage that activity. Jones solicited union dues
from employees, was told by Peter Quirk that there no longer
was a union, and that he could not collect union dues. Minutes
later, he received a written warning for leaving work early 2
days before. The evidence supports an inference that the written
warning was given at a time when the Respondent sought to
minimize the influence of the exclusive bargaining representa-
tive and sought to emphasize to the employees that the Union
was unnecessary. Accordingly, I find that the General Counsel
has satisfied his initial evidentiary burden.
The Respondent argues, however, that a violation of the Act
cannot be found because there is no evidence of unlawful moti-
vation. It contends that Jones would have been disciplined even
in the absence of union activity because of poor work perform-
ance. Specifically, the Respondent asserts that Jones was re-
peatedly counseled about maintaining a regular work schedule,
but that he nevertheless abused his lunch hours, was habitually
tardy, frequently left work early, and was not very productive.
As a result, when he left work early without permission on
August 29, 1995, he justifiably was given a written warning,
which was his second written warning.

18 Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
The evidence, however, does not substantiate the Respon-
dent’s position. Aside from the generalized assertions of John
and Peter Quirk that Jones was an unsatisfactory employee,
who was tolerated for quite some time, and was disciplined
frequently, the Respondent did not introduce a single piece of
paper which corroborated their testimonies . There is no record
of Jones ever receiving a prior written or verbal warning. Quite
the contrary, the testimony of Peter Quirk establishes that he
never warned Jones in writing. Peter Quirk testified that he had
never given Jones a written warning prior to August 31 and that
he had no record of Jones receiving a verbal warning (Tr. 320).
John Quirk likewise testified that he never gave Jones a written
warning. His testimony also raises significant doubts about
whether he ever verbally disciplined Jones. John Quirk was
asked:

Q. Did you ever give him a written warning?
A. I gave him many verbal warnings.
Q. Did you ever document those verbal warnings?
A. I—it was documented in front of his direct superior
[Tr. 402] dozens and dozens of times.
Q. Was it ever added to his personnel file?
A. I’d have to check his personnel file.
Q. Well, did you ever add anything to his personnel
file with respect to these dozens of verbal warnings?
A. No, no, I did not personally.
Q. Have you looked in his personnel file to see if there
are any—if there’s any documentation with respect to ver-
bal warnings?
A. Sir, it was well known throughout the company
that Mr. Jones-
Q. No, no, the question is did you ever look in his per-
sonnel file to see if there was any documentation of these
verbal warnings?
A. No, I have not. [Tr. 403.]

The reluctance of John Quirk to admit directly that he did not
give Jones a written warning or even record one verbal warn-
ing,19 or even check Jones’ personnel file to determine whether
there was any documented discipline for him further taints John
Quirk’s credibility, and underscores the dearth of evidence
showing that Jones was a unsatisfactory employee, who failed
to respond to progressive disciplinary efforts.
Careful review of the record reveals that the only writing
referenced by the Respondent which pertained to Jones’ work
performance is a memo, dated April 4, 1995, which sought to
prioritize his work (R. Exh. 24). The evidence shows that the
memo was prepared by John and Peter Quirk, purportedly be-
cause they were concerned that Jones’ productivity was drop-
ping off. After it was typed, the memo was read to John Quirk
over the phone and his name was signed by his brother, Peter
Quirk. But the memo was never moved into the record and
there is no evidence that it was ever given to Jones or discussed
with him. Peter Quirk testified that he did not discuss the memo
with Jones, but he “knew” that his brother, John, gave Jones the
memo, because he and John had discussions about it. But John
Quirk testified that he did not give the memo to Jones nor is
there any evidence that Jones and John Quirk ever discussed it.
John Quirk, however, was sure that his secretary, Lucy Wright,
19 The evidence establishes that there is a place to record such infor-
mation on the Respondent’s “Employee Warning Report” form. (See
G.C. Exh. 18.)
QUIRK TIRE 931
gave Jones the memo, but he never bothered to double check
with her to confirm that she did (Tr. 412). John Quirk neverthe-
less was positive that “Lucy handed [the memo] to Jones and
Dave Bradley or whoever was in the manager’s office at that
time would have handed it to Ken (Jones),” even though Brad-
ley did not begin working for the Respondent until 11 months
later. He then stated with confidence that a copy was handed to
Jones by Lucy or his brother, Peter, but admitted that he was
not present when that occurred. Despite John Quirk’s insistence
that Jones received a copy of the memo, the evidence shows
that his assertions were purely speculative, which further un-
dercuts his credibility,20 and which raises significant doubts
about whether he ever warned or counseled Jones about his
work performance in the first place.
The Respondent’s position that the written warning was jus-
tified is also undercut by the fact that the warning was inaccu-
rate on its face. Although it stated that Jones left work early
without permission at 3 p.m. on August 29, his timecard for
that day reflects that he worked until 3:30 p.m. When the dis-
crepancy was pointed out to Peter Quirk at the hearing, he dis-
missed it as not being terribly significant. The warning also
stated that it was Jones’ second written warning, but there is
absolutely no evidence to support that assertion. Despite the
lack of evidence, Peter Quirk refused to acknowledge the mis-
take when Jones immediately pointed it out to him on August
31. These inaccuracies, coupled with Peter Quirk’s reluctance
to acknowledge them, support the inference that the written
warning was a hasty reaction designed to discourage union
activity, rather than a justified disciplinary measure designed to
curtail a longstanding work performance problem.
Not only does the evidence fail to establish that Jones would
have been disciplined even in the absence of his union activity,
the timing of the written warning alleviates any suspicion that it
was unlawfully motivated. Nowhere does Peter Quirk or the
Respondent explain why he waited 2 days before giving Jones a
written warning for leaving work early on August 29. Nowhere
does Peter Quirk or the Respondent explain why he gave Jones
the written warning only minutes after their confrontation on
collecting union dues. Nowhere does Peter Quirk or the Re-
spondent explain why no further disciplinary action was taken
against Jones—until he solicited union dues again, on March
11, even though he continued to leave work early and come in
late after August 29. I find that the timing of the written warn-
ing, standing alone, supports the inference that the warning was
unlawfully motivated.
For all of these reasons, I find that the Respondent has failed
to satisfy its evidentiary burden. The total circumstances proved
to support an inference that had it not been for Jones’ union

20 Other aspects of John Quirk’s testimony were equally unreliable.
Although he recalled Jones working on Saturday only once, the evi-
dence establishes that in the last year of his employment alone, Jones
worked several Saturdays (R. Exh. 26B), to wit: January 14, 1995;
February 25, 1995; June 17, 1995; July 1, 1995; July 15, 1995; August
12, 1995; August 26, 1995; September 9, 1995; September 30, 1995;
October 7, 1995; October 21, 1995; November 4, 1995; November 11,
1995; January 6, 1996; January 27, 1996; February 10, 1996, and Feb-
ruary 24, 1996. This evidence illustrates the extent to which John Quirk
generalized and overstated his testimony. Also, as noted above, John
Quirk mistakenly thought that Bradley actually began working the
week after March 11, even though everyone else agreed that Bradley
started work on March 12, and he insisted that he was not on vacation
the week of March 11, even though the payroll records reflect that he
was on vacation.
activity on August 31, a written warning would not have been
issued. Accordingly, I find that the Respondent unlawfully
disciplined Ken Jones on August 31, in violation of Section
8(a)(3) of the Act.
b. The unlawful termination of Jones
(1) Knowledge and opposition to union activity
The credible evidence as determined above establishes that
when Jones solicited union dues on March 11, Quirk told him
again that there no longer was a union and that he could not
collect the dues. Peter Quirk therefore knew of and opposed
Jones’ union activity on March 11. The Respondent argues,
however, that the General Counsel has failed to prove knowl-
edge because the ultimate decision to terminate Jones was made
by David Bradley, who had no knowledge that Jones was a
union steward or that he had sought to collect union dues on
March 11.
While Bradley may not have known of Jones’ union position
and union activity, it is of no significance because the evidence
reflects that the decision to terminate Jones was not his or not
his alone. Despite Bradley’s testimony that “[he] made the
decision,” the evidence discloses that he discussed the matter
with Peter Quirk the same day Jones’ timecard was reported
missing. Peter Quirk likewise confirmed that the two of them
discussed the situation before Bradley prepared the letter. Brad-
ley then gave Quirk the letter to review, which he did, stating,
“[O]kay, send it.” In addition to conferring with Peter Quirk,
the evidence shows that Bradley was a brand new employee,
who was in training with Peter Quirk, and that he was not even
Jones’ immediate supervisor. Bradley himself conceded that
Jones’ immediate supervisor was still Rich Davis (Tr. 242–
243), who also reported to Peter Quirk. Thus, the evidence
shows that not only did Bradley confer with and/or obtain the
approval of Peter Quirk before sending the termination letter,
he lacked the sole authority to terminate Jones at that point in
time. I therefore find that the decision to terminate Jones was
made, in part or whole, and/or approved by Peter Quirk, who
had knowledge of Jones’ union office and union activity.
I therefore find that the General Counsel has persuasively es-
tablished that there was union activity by Jones, known to and
opposed by the Respondent, which tended to discourage union
activity.
(2) The adverse action tending to discourage union activity
Two days after Jones was told that he could not collect union
dues,21 his timecard suspiciously disappeared. Even Peter Quirk
conceded that something like this had never happened in his
experience with the Respondent. After 20 minutes passed while
Bradley looked for the timecard and conferred with Peter
Quirk, Bradley returned and told Jones that he was no longer
needed. Jones credibly testified that 2 days later, on Friday,
March 15, his coworker, Arnie McNally, phoned on behalf of
the Respondent, asking him to return his uniforms and keys.
21 The credible evidence establishes that Jones did not work for the
Respondent on March 12, but instead worked at the fire department.
Despite David Bradley’s assertions that Jones reported that his timecard
was missing on March 12, which was Bradley’s first day on the job,
Jones credibly testified that he worked all day at the fire department.
His testimony was corroborated by documentary evidence (G.C. Exh.
27). For reasons explain below, I find that Bradley’s testimony was
unconvincing. I therefore credit Jones’ testimony that he next reported
to work for the Respondent on Wednesday, March 13.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 932
Jones returned the items to Lucy Wright on March 18. Jones
later received the March 18 letter stating that his employment
had been terminated. I find that this evidence sufficiently shows
the Respondent responded promptly to Jones’ second attempt to
collect union dues by taking adverse action which tended to
discourage the union activity.
I therefore find that the General Counsel has satisfied his ini-
tial evidentiary burden.
c. The Respondent’s defense
The Respondent argues that Jones was not discharged from
his job, he simply quit. But the notion that Jones walked away
from his job is implausible. The evidence establishes that Jones
had worked for the Respondent since 1990, and according to
the testimony of John and Peter Quirk, Jones had an ideal em-
ployment arrangement. His work schedule with Respondent
was tailored to accommodate his duties at the fire department.
He was allowed to leave early when he needed to, and take time
off when he had to. He took his lunch and breaks when he
wanted to. In essence, John and Peter Quirk painted a picture of
an employee who came and went whenever he chose, much to
their chagrin. And even after the Respondent unilaterally
changed his work schedule on August 1, the evidence shows
that it did not attempt to enforce the new schedule—until Jones
solicited union dues on August 31. The evidence (R. Exh. 26B)
also shows that after August 31, the Respondent continued to
allow Jones to leave work early and come in late whenever
necessary, without incident or disciplinary action, until March
11, 1996, when he attempted to collect union dues again. Thus,
while the Respondent argues that Jones simply quit his job,
neither the evidence nor the Respondent has provided a com-
pelling reason for him to have done so.
Further, there is no direct evidence that Jones quit his job.
Nowhere in the record is there any evidence that Jones told or
advised anyone that he was quitting his employment with Re-
spondent. He did not say “I quit” to Bradley, Peter Quirk, or
anyone else, he did not tender a resignation letter, and he did
not turn his uniforms and keys until he was asked to do so. In
the latter connection, the evidence shows, and the Respondent
does not dispute, that on March 15, Jones was asked by
McNally at the Respondent’s request to return his uniform and
keys. I note that the Respondent does not deny that it asked
Jones to return his uniform and keys prior to March 18. The
evidence also shows, and the Respondent does not dispute, that
Jones complied by returning these items on that date. Finally,
the evidence shows that after Jones returned his uniform and
keys, the Respondent sent him a letter terminating his employ-
ment, effective March 18, 1996 (R. Exh. 29). The credible
evidence therefore shows that Ken Jones did not quit his job.
Rather, he was terminated, in writing, by the Respondent, and
that the decision to terminate him was made prior to March 18.
The issue then becomes whether the reasons for termination
are pretextual. David Bradley testified that Jones was termi-
nated because he failed to report to work, did not contact his
supervisor, and failed to respond to telephone messages. David
Bradley’s testimony as to why Jones was terminated was un-
convincing for several reasons. First, Bradley’s testimony was
inconsistent. In an earlier affidavit, he said that there were no
timecards in the rack, when Jones reported that his timecard
was missing. He testified at the hearing, however, that he saw a
number of timecards in the rack, none of which belonged to
Jones. When given the opportunity to reconcile the inconsis-
tency, he passed it off without explanation by stating: “This is
how I recall it.”
Second, Bradley’s testimony was overstated with respect to
the decision to terminate Jones. Although that he declared that
he alone terminated Jones, the preponderance of evidence
shows that the decision was made by, was made with, or was
made after obtaining the approval of Peter Quirk.
Third, Bradly also overstated his efforts to contact Jones. He
testified that when he could not find Jones, he obtained Jones’
phone number from Josephine Lutz, and for 2 days unsuccess-
fully left messages on Jones’ answering machine. However,
Bradley could not remember the number he called, nor did he
record his attempts to contact Jones, nor could he say whether
the answering machine he reached belonged to Jones. Although
someone told Bradley that Jones worked for the Boston Fire
Department, he did not try to contact him there. When asked
whether there was a telephone number for the Boston Fire De-
partment in Jones’ personnel file, Bradley responded, “I don’t
recall.” When asked whether he sought to obtain the phone
number from whoever told him that Jones worked at the fire
department, Bradley said that the person did not offer him a
phone number and that he did not ask for one. He did not ask
Arnie McNally for the Jones’ fire department phone number,
even though he knew Jones and McNally were close friends.
Nor did he ask Rich Davis, who was Jones’ immediate supervi-
sor, for the fire department phone number. Bradley eventually
conceded that he did not even speak to Rich Davis about Jones’
absence on March 13. The evidence therefore establishes that
Bradley’s efforts to contact Jones were not as exhaustive as he
would lead one to believe.
For these, and demeanor reasons, I find that the testimony of
David Bradley in support of the reasons for terminating Ken
Jones was not credible.
Peter Quirk’s testimony that he also tried unsuccessfully to
contact Jones does little to bolster Bradley’s credibility. Quirk
testified that he called a fire station in the area where Jones
lived, but was not successful in reaching him. He speculated
that there were 50–60 fire stations in Boston, so he stopped
trying–after one attempt. Jones testified that he gave Quirk his
phone number at the fire station where he worked and that
Quirk had phoned him there on a couple of occasions in late
1995 or early 1996. He also credibly testified that he gave
Quirk his pager number. On recall, Peter Quirk admitted that
Jones had given him the phone number of the fire department
where he worked and that he had called Jones at the fire station
once. He stated, however, that he subsequently lost the phone
number and denied ever receiving Jones’ pager number. I find
that Peter Quirk’s explanation of what he did to contact Jones
and why he did not do more, is dubious. I do not credit his tes-
timony denying that he lost the fire department phone number
or that he did not receive the pager number. Rather, the credible
evidence shows that Peter Quirk had the method and means to
contact Jones, if he truly desired to do so. For these, and de-
meanor reasons, I find that the testimony of Peter Quirk in sup-
port of the reasons for terminating Ken Jones is not credible.
I find that the Respondent’s reasons for terminating Jones
were pretextual. The total circumstances proved support an
inference that Jones was not allowed to return to work on
March 13, because he had attempted to collect union dues
again. I credit Ken Jones’ testimony that, after conferring with
Peter Quirk, Bradley told Jones that he was no longer needed
and that he could go home. Accordingly, I find that Kenneith
QUIRK TIRE 933
Jones was unlawfully terminated by the Respondent in viola-
tion of Section 8(a)(3) of the Act.
6. The alleged violation of Section 8(a)(4)
The complaint also alleges that Jones was terminated for giv-
ing an affidavit in connection with the charge in Case 1–CA–
33249. The evidence shows that Jones prepared a letter, dated
February 22, 1996 (G.C. Exh. 19), in which he complains about
how he had been treated at work over the past several weeks
and ever since he gave a “deposition” to the NLRB. Jones testi-
fied that he placed the letter in John and Peter Quirk’s mail-
boxes at work on February 23. The following week he asked
John Quirk if he wanted to discuss the letter, but John Quirk
declined saying that he did not have time at the moment. Both
John and Peter Quirk stated that they never saw or received the
letter. For demeanor reasons, and for the previously stated rea-
sons for questioning their veracity, I do not credit John and
Peter Quirk’s testimony that they did not receive or read the
letter on or about February 23 or shortly thereafter.
On the other hand, the evidence does not establish that the
affidavit given by Jones precipitated the Respondent to termi-
nate him. Rather, the evidence establishes that the termination
on March 13, was in response to Jones’ attempt to collect union
dues. I shall therefore recommend that this allegation be dis-
missed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act and is the exclusive bargaining repre-
sentative for all individuals employed by The Edward S. Quirk
Co., Inc. in the following appropriate bargaining unit:

All employees engaged in the maintenance and servicing of
tires, including all tire men, front end men, and helpers em-
ployed by Respondent at the Watertown facility, excluding all
executives, office clericals, counter salesmen, porters, sales-
men, driver salesmen, guards, professional employees, and
supervisors as defined in the Act.

3. The Respondent has violated Section 8(a)(1) of the Act
by:
(a) Telling its employees that there would be a health insur-
ance copayment regardless of how the union membership
voted.
(b) Telling Kenneith Jones in June and August 1995, and in
March 1996, that there no longer was a union.
(c) Telling Kenneith Jones on August 31, 1995, and on
March 11, 1996, that he could not collect union dues.
4. The Respondent has violated Section 8(a)(3) of the Act
by:
(a) Giving Kenneith Jones a written disciplinary warning on
August 31, 1995, because he engaged in union activity.
(b) Terminating Kenneith Jones on or about March 13, 1996,
because he engaged in union activity.
5. The Respondent has violated Section 8(a)(5) of the Act by:
(a) Unlawfully delaying payments to the International Broth-
erhood of Teamsters Health and Welfare Fund.
(b) Unilaterally implementing its wage proposal on June 1,
1995.
(c) Refusing to discuss employee concerns and grievances
with Union Steward Kenneith Jones in June and August 1995.
(d) Unilaterally changing or attempting to change in August
1995, Kenneith Jones’ hours of work, lunch and breaktimes,
procedure for requesting time off, wage incentive plan, and by
imposing a repair production quota.
6. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent did not otherwise engage in any other un-
fair labor practice alleged in the complaint in violation of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent has discriminatorily laid
off employee Kenneith R. Jones because of his union activity,
has unlawfully changed his wage incentive plan, hours of work,
lunch and break time, has unlawfully imposed a procedure for
requesting time off and has unlawfully required a certain num-
ber of repairs each day, I shall recommend that The Edward S.
Quirk Co., Inc. be ordered with respect to employee Kenneith
R. Jones to restore the status quo ante as it existed prior to Au-
gust 1, 1995, reinstate employee Jones to his former position,
and make him whole for any loss of wages and benefits he may
have suffered as result of his unlawful termination and as a
result of the unlawful unilateral change made to his wage
incentive plan. Backpay is to be computed on a quarterly basis
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).22
Having found that the Respondent unlawfully implemented
its wage proposaI on or about June 1, 1995, I shall recommend
that The Edward S. Quirk Co., Inc., on request, bargain with the
Union as the representative of the employees in the unit de-
scribed above, about the method, manner, timing and amounts
of adjustments to wages and incentive pay to be granted in
accordance with the wage incentive plans for both commercial
operations employees (e.g., recap employees and OTR service
repairs) and the general mechanics and alignment technicians
and, at the Union’s request, that it rescind any pay adjustments
that affected the unit employees pursuant to the unlawfully
implemented wage proposal on June 1, 1995, and make the unit
employees whole for any loss of wages they may have suffered
on or after June 1, 1995, as a result of the unlawful
implementation of the wage proposal.

On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended23
ORDER
The Respondent, The Edward S. Quirk Co., Inc., Boston,
Massachusetts, its officers, agents, successors, and assigns,
shall
22 The remedy applies to both the 8(a)(3) and (5) violations relating
to employee Kenneith R. Jones, and also applies to any wage loss in-
curred by unit employees because of the Respondent’s unlawfully
implemented wage proposal on June 1, 1995, in violation of Sec.
8(a)(5) of the Act,
23 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 934
1. Cease and desist from
(a) Discouraging membership in, or undermining the status
of, the Union or any other labor organization by telling its em-
ployees that the Union no longer exists, refusing to discuss
grievances with the Union’s representatives, unilaterally im-
plementing changes in terms and conditions of employment of
employee Kenneith R. Jones or any of its employees without
notifying and consulting the Union first, or disciplining, or
discharging any of its employees, or by discriminating in any
other manner in regard to their tenure of employment or any
other term or condition of employment.
(b) Adjusting wages and incentive pay and/or granting incen-
tive pay in the following appropriate bargaining unit without
bargaining with International Brotherhood of Teamsters, Local
Union No. 25, AFL–CIO, about the method, manner, timing
and amounts of those adjustments and/or incentive payments.
The appropriate unit is:

All employees engaged in the maintenance and servicing of
tires, including all tire men, front end men, and helpers em-
ployed by Respondent at the Watertown facility, excluding all
executives, office clericals, counter salesmen, porters, sales-
men, driver salesmen, guards, professional employees, and
supervisors as defined in the Act.

(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with International Brotherhood of
Teamsters, Local No. 25, AFL–CIO as the representative of
employees in the above-described appropriate unit, about the
method, manner, timing and amounts of wage and/or incentive
pay adjustments and/or granting incentive pay, prior to making
those wage and/or incentive pay adjustments and/or prior to
granting incentive pay.
(b) On request by the above-named labor organization, re-
scind any wage and/or incentive pay adjustments as a result of
unilateral action.
(c) Make the unit employees whole for any loss of wages
suffered on or after June 1, 1995, as a result of the wage pro-
posal unlawfully implemented on that date.
(d) Within 14 days from the date of this Order, offer imme-
diate full reinstatement to Kenneith R. Jones to his former posi-
tion or, or if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and under the
same terms and conditions of employment which pertained to
him prior to August 1, 1995.
(e) Make whole Kenneith R. Jones, with interest, in accor-
dance with the remedy section of this decision, for wage and
benefit losses that he may have suffered as a result of the dis-
crimination against him, including his unlawful termination and
the unlawful changes made on August 1, 1995, to his wage
incentive plan.
(f) Within 14 days from the date of this Order, remove from
its files any references to the unlawful discipline on August 31,
1995, and unlawful termination on or about March 13, 1996, of
Kenneith R. Jones, and within 3 days thereafter notify him in
writing that this has occurred and that the discipline and
termination shall not be used against him in any way.

(g) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(h) Within 14 days after service by the Region, post at its fa-
cility in Watertown, Massachusetts, copies of the attached no-
tice marked “Appendix.”24 Copies of the notice, on forms pro-
vided by the Regional Director for Region 1, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since August 4, 1995.
(i) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”