Red Triangle Oil Co.

National Labor Relations Board - Board Decisions

Dec 30, 1968

173 N.L.R.B. 1420 (N.L.R.B. 1968)

1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intercity Petroleum Marketers , Inc., d/b/a Red Tri-
angle Oil Company, and Red Triangle Supply
Company, Inc. and Teamsters , Chauffeurs, Ware-
housemen and helpers , Local 431 , International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case 20-CA-
4454
December 30, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On September 19, 1968, Trial Examiner E. Don
Wilson issued his Decision in the above-entitled case,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief; and
General Counsel filed a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations' of the
Trial Examiner with the modification noted below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that Respondent, Inter-
city Petroleum Marketers, Inc., d/b/a Red Triangle Oil
Company, and Red Triangle Supply Company, Inc.,
Fresno, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein modified.
1. Delete paragraph 1 of the Trial Examiner's
Recommended Order and substitute the following.
"1. Cease and desist from refusing, if requested by
Teamsters, Chauffeurs, Warehousemen and Helpers,
Local 431, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
to sign a written agreement embodying the terms and
conditions agreed upon with said Union, but deleting
the invalid union-security clause, and to put it into
effect and abide by its terms until 1 year subsequent
to the date on which Respondent signs it , or if no
such request is made, refusing, upon request, to
bargain in good faith with said Union as the exclusive
collective-bargaining representative of all its em-
ployees in the appropriate unit with respect to rates
of pay, wages, hours of employment and other terms
and conditions of employment, and if an under-
standing is reached, embody such understanding in a
signed agreement."
2. Delete paragraph 2(a) and substitute the follow-
ing:
"(a) Upon request of the aforesaid Union, sign
forthwith the written contract embodying the terms
and conditions agreed upon with said Union but
deleting the invalid union security clause, and put it
into effect and abide by its terms until 1 year
subsequent to the date on which the Respondent
signs it, and bargain with respect to a lawful union
security provision if so requested by the Union. If no
request for the contract is made, bargain collectively
with said Union, upon its request, as the exclusive
bargaining representative of the employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement."
3. Delete both indented paragraphs of the notice
and substitute the following:
WE WILL, if requested by Teamsters, Chauffeurs,
Warehousemen and Helpers, Local 431, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, sign the
written contract incorporating the terms of the
agreement reached with that Union but deleting
the unlawful union-security clause; and bargain
with respect to a lawful union security provision if
so requested by the Union. This agreement is to be
effective until 1 year subsequent to the date on
which we sign it. Or, if no such request is made, we
l We disagree with the Trial Examiner 's recommendation that
Respondent be required to sign, if the Union requests , a collective-
bargaining contract containing a lawful union-security clause This
would require the Board to write a union-security clause the parties
never agreed to. Instead, we shall offer the Union the following
alternative remedies if the Union so requests , Respondent shall sign the
February 10, 1967, collective -bargaining contract, but with the
unlawful union -security clause therein contained deleted. Tulsa Sheet
Metal Works , Inc , 149 NLRB 1487 , North Country Motors, Ltd, 146
NLRB 671 . The expiration date of said contract is to be extended until
1 year subsequent to the date on which Respondent signs it If the
Union elects not to require signing of the February 10 contract,
Respondent shall bargain in good faith with the Union for a new
collective -bargaining agreement Beverage -Air Company , 164 NLRB
1127, enfd. 402 F .2d 411 (C.A. 4).
173 NLRB No. 222
RED TRIANGLE OIL CO.
will, upon request, bargain collectively with the
Union in the appropriate unit with respect to rates
of pay, wages, hours of work and other terms and
conditions of employment, and, if an under-
standing is reached, embody such understanding in
a signed agreement.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E DON WILSON, Trial Examiner: Pursuant to due notice, a
hearing in this case was held before me at Fresno, California,
on June 11, 1968. A complaint was issued by the General
Counsel of the National Labor Relations Board, herein the
Board, on October 17, 1967, upon a charge filed by Teamsters,
Chauffeurs, Warehousemen and Helpers, Local 431, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein the Union, on March 21,
1967, and amended on September 29, 1967. The complaint
alleges in substance that Intercity Petroleum Marketers, Inc.,
d/b/a Red Triangle Oil Company, and Red Triangle Supply
Company, Inc.,' herein Respondent, refused to bargain with
the Union in violation of Section 8(a)(5) and (1) of the Act.
Each of the parties fully participated. Briefs received from the
parties have been considered.
Upon the entire record2 and my observation of the wit-
nesses, I make the following-
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
During 1967, Respondent, in the course and conduct of its
business operations, purchased from various suppliers located
in California, goods valued in excess of $50,000 which goods
were shipped directly to said suppliers from outside the State
of California. Respondent is an employer engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of
the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issues
(1) Did Respondent and the Union orally agree to a
collective-bargaining contract and; (2) Should Respondent be
ordered to sign a written contract containing a lawful union
security clause in place of the illegal one agreed to?
B. The Appropriate Unit
All drivers, warehousemen and counter salesmen employed
I Name of Respondent as corrected at the hearing
2 Respondent 's unopposed motion to correct the transcript is
granted.
3 Hereinafter the last 6 months of the year refer to 1966 and the
1421
by Respondent at Fresno, California, excluding office clerical
employees, outside salesmen, mechanics, guards and super-
visors as defined in the Act constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
C. The Certification
On August 12, 1966,3 the Union was certified as the ex-
clusive bargaining representative of the employees in the above
unit.
D. The Facts
Following the certification of the Union, through Harry
Kachadoonan, an officer of the Union, it asked Respondent to
meet with the Union for bargaining on August 23. As a reply,
Walter Aufderheide, Jr., of the Valley Employers Association,
phoned Kachadoorian and said he would represent Respondent
and asked for a meeting in his office on September 21 4
On September 21, the Union and Respondent met for their
first bargaining session at the offices of Valley. Walter
Auferheide, Sr. and Auferheide, Jr., of Valley, and Re-
spondent's president, Arnold Hohenshelt, and its treasurer,
Glenn Blue, represented Respondent The Union's representa-
tives were Kachadoorian and Hershel Lovejoy. Aufderheide,
Sr. said Valley would represent Respondent in the negotia-
tions. No officer of Respondent questioned or limited Valley's
authority to represent Respondent. No comment was made by
a Respondent's officer. The Union presented a written
proposal and there was discussion about the proposal.
Another meeting was held at Valley's office on October 28.
Aufderheide, Jr., on behalf of Respondent, presented a written
counterproposal. This writing particularly pointed out clauses
with which Respondent had question or agreed. Respondent,
in its counterproposal, stated that the Union's union security
clause was satisfactory and should be retained "as is." The
union security clause was, in fact, illegal since it provided that
only members in good standing in the Union should be
retained in employment. There was no discussion as to the
union security clause and neither party appeared to be aware
of its illegality. As noted, Respondent's counterproposal was
that the Union's union security proposal be retained " as is."
There was discussion as to other clauses of the proposal. There
were several more meetings or discussions between Kacha-
doonan and Aufderheide, Jr., in which the contract was
discussed. No reference was made to the union security clause
which had been acceptable "as is."
On February 3, Aufderheide, Jr., phoned Kachadoorian
and said he had a final proposal acceptable to Respondent
which he would present and mail to the Union.
In the meanwhile, on December 28, Respondent, through
Hohenshelt, advised Valley that Respondent's place of business
would have to be an open shop because key employees would
quit before they would pay union dues. This was not
communicated to the Union by Respondent or Valley. Before
March 13, the Union had no knowledge that Respondent
first 6 months refer to 1967 , unless otherwise specified.
4 Respondent contends it merely joined Valley and orally described
what it signed. The writing was never produced.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objected to a union shop . Valley's authority to negotiate in
behalf of Respondent was not withdrawn until March 7. I
place no credence in Joel Hohenshelt 's hearsay testimony that
Aufderheide , Jr , told him he had advised Kachadoorian that
Respondent objected to a union shop.
On February 4, the Union , through Kachadoorian , received
Respondent's final proposal from Aufderheide , Jr., which
contained the illegal union security clause . Shortly thereafter,
on February 10, at a meeting called by the Union, Re-
spondent's employees voted to accept Respondent 's final
proposal. Kachadoorian , thereupon , so advised Aufderheide
who agreed to have the contract put in final form . Aufderheide
had the contract put in printed form and sent it to
Kachadoonan who signed it and forwarded it to Joel Hohen-
shelt for signature.
On March 7 , Hohenshelt replied by letter that Respondent
was not in accord with some of the sections of the contract
and asked the Union to contact another representative of
Respondent , Arnold, of the California Association of Em-
ployers. Hohenshelt had discussed Respondent 's final proposal
with Aufderheide before it was submitted , but they did not
discuss the union security clause which had been the subject of
agreement months earlier . Hohenshelt saw the final proposal of
Respondent before it was submitted to the Union . He did not
tell Aufderheide to delete the union security clause from the
contract . Hohenshelt imagined or supposed that Aufderheide
was going to submit Respondent 's final proposal with the
union security clause to the Union. It is possible that
Aufderheide spoke to Joel's father or to Glen Blue about this
final proposal since the three had equal responsibility for the
negotiations among them.
When Kachadoonan received the March 7 letter, he
resubmitted the contract by registered mail for Respondent's
signature . He requested that the contract be signed by March
17.
The California Association of Employers replied by three
letters stating that on December 28 Respondent had told
Valley it did not wish a union security clause and the
Association requested a meeting for further bargaining. This
was Kachadoorian ' s first advice that there was a disagreement
as to the union security clause which had been agreed to at all
times since Respondent's first counterproposal of October 28.
There was no question raised by Respondent through Valley or
the California Association about the legality of the union
security agreement . At no time has Respondent signed the
contract embodying Respondent 's final counterproposal which
was accepted by the Union on February 10.
E. Concluding Findings
Respondent, through Valley, and the Union arrived at a
contract when the Union accepted Respondent's final counter-
proposal on February 10. I find it abundantly clear that Valley
had apparent authority to bargain in Respondent's behalf,
from Joel Hohenshelt and Glenn Blue when Aufderheide, Sr.,
said in their presence that Valley would represent Respondent
in negotiating with the Union. When Valley submitted Re-
spondent's final counterproposal to the Union, it was done
with knowledge of Respondent who did not repudiate it until
long after the Union had accepted it. Respondent permitted
Valley to negotiate in its behalf for over 4 months and never
suggested that there was any question as to Valley's authority.
There was a meeting of minds and an agreement between
Respondent and the Union on February 10. Valley had been
authorized in the presence of the Union to negotiate and
conclude an agreement on behalf of Respondent. Valley
negotiated with the Union for more than 4 months and with
Respondent's knowledge submitted on its behalf a final
counterproposal which was accepted by the Union. Any
private instructions about a union shop by Respondent to its
agent, Valley, were not communicated to the Union until after
the Union accepted Respondent's final counterproposal.
It is abundantly clear that Respondent throughout its
negotiations with the Union expressed itself as agreeing to a
contract containing a union security clause. On February 3,
Respondent agreed to a contract including a union security
clause. Respondent cannot be properly heard to reject its own
counterproposal. At no time prior to the Union's acceptance
of Respondent's counterproposal did Respondent communi-
cate an objection to the union shop clause
Plainly, the union security clause is illegal since present
employees are not allowed 30 days to join the Union. But the
entire record makes clear that the illegality of the union
security clause is not the reason Respondent refused to sign
the contract. It simply had misgivings about a union security
clause which it never communicated to the Union. It refused
to bargain in good faith in violation of Section 8(a)(5) and (1)
of the Act. Respondent is under an obligation to bargain in
good faith and this can be done only by, at the Union's
request, signing the contract accepted by the Union with a
legal union security clause. This matter will be dealt with
further when Remedy is considered. Respondent did not
refuse to sign the contract because of the illegal union security
clause but because it had second thoughts as to what it had
already agreed to.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
Respondent's activities as set forth in section III, above,
occurring in connection with its operations described in
section I, above, have a close, intimate, and substantial relation
to trade, traffic and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V THE REMEDY
Having found Respondent has engaged in unfair labor
practices violative of Section 8(a)(5) and (1) of the Act, I shall
recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
The illegality of the union security clause played no part in
Respondent's refusal to sign a contract with a union security
clause. Respondent's only objection to the contract was that a
couple of employees did not wish to join the Union. It did not
communicate this objection to the Union until the Union
accepted Respondent's counterproposal. Thus Respondent's
was a belated objection to any union security clause and not to
one which was fortuitously illegal. By its final counter-
proposal, Respondent agreed to a contract with a union
security clause and this was accepted by the Union. Re-
spondent's private and nondisclosed statements to Valley do
not alter the fact that through Valley Respondent agreed to a
contract with a union shop clause. Respondent and the Union
reached agreement on a union security contract. That the
RED TRIANGLE OIL CO.
union security clause was illegal was inadvertent and in no way
led to Respondent's refusal to sign the contract. The record
makes clear to me that Respondent and the Union intended to
have a contract with a legal union security clause. Here, a
remedy requiring Respondent to bargain further about the
inclusion of a legal union secunty clause is not necessary since
the parties have already agreed to the inclusion of a union
secunty clause with no thought being given to its legality.
Respondent is, obviously, not to be ordered to sign a contract
containing the illegal union secunty clause but an order should
be issued requiring it to sign a contract containing a legal union
secunty clause, i.e., one allowing present employees 30 days to
join the Union. That Respondent agreed to a clause giving no
escape period demonstrates it would impose no greater
restrictions on Respondent or on the employees to agree to a
30-day grace period The clause Respondent is to be ordered
to agree to in writing is less burdensome than the unlawful
clause to which it inadvertently agreed. It agreed to a contract
containing a union security clause and it should, upon the
Union's request, sign a contract containing a legal union
security clause.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of the Act.
2. The Union is a labor organization within the meaning of
the Act.
3. All drivers, warehousemen and counter salesmen em-
ployed by Respondent at Fresno, California, excluding office
clerical employees, outside salesmen , mechanics, guards, and
supervisors as defined in the Act constitute a unit appropriate
for purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4 At all material times the Union has been the exclusive
bargaining representative of the employees in the above
appropriate unit for purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing on March 7, and continuing to refuse, to sign
a written collective-bargaining contract embodying the terms
of the collective-bargaining contract between Respondent and
the Union, with a legal union security clause substituted for
the illegal one inadvertently contained therein, covering the
employees in the above unit and entered into on February 10,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, I recommend Respondent, its officers,
agents, representatives , and assigns, shall
1. Cease and desist from refusing to bargain collectively
with the Union, as the exclusive bargaining representative of all
employees in the unit herein found appropriate, by failing and
refusing to sign the February 10 contract, if requested by the
Union, with a union security clause allowing present em-
ployees 30 days to join the Union substituted for the
inadvertently illegal portion of the union security clause.
1423
2 Take the following affirmative action which I find will
effectuate the policies of the Act
(a) Bargain collectively with the Union as the exclusive
bargaining representative of the employees in the above-
described unit, by signing the February 10 contract, if
requested by the Union, substituting a union security clause
allowing present employees 30 days to join the Union for the
inadvertently illegal portion of the union security clause
requiring present employees to join immediately.
(b) Post in conspicuous places at its Fresno, California,
establishment, including all places where notices to employees
are customarily posted copies of the notice attached hereto as
"Appendix."5 Copies of said notice on forms provided by the
Regional Director for Region 20 shall, after being duly signed
by Respondent's representative, be posted by it immediately
upon receipt thereof and maintained by it for at least 60
consecutive days thereafter. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision what steps Respondent
has taken to comply herewith.6
5 In the event that this Recommended Order be adopted by the
Board , the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice In
the further event that the Board 's Order be enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals , Enforcing an Order " shall be substituted for
the words "A Decision and Order."
6 In the event that this Recommended Order be adopted by the
Board , paragraph 2(c) shall be modified to read "Notify the said
Regional Director, in writing , within 10 days from the date of this
Order what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act as
amended, we hereby notify our employees that
WE WILL NOT refuse to bargain collectively with Team-
sters, Chauffeurs, Warehousemen and Helpers, Local 431,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America as the exclusive bar-
gaining representative of all drivers, warehousemen and
counter salesmen employed by us at Fresno, California,
excluding office clerical employees, outside salesmen, mech-
anics, guards and supervisors as defined in the Act, by
failing and refusing to sign our February 10, 1967, contract
with the above Union, if requested by the Union, with a
union security clause allowing present employees 30 days to
join the above Union substituted for the inadvertantly
illegal portion of the union security clause.
WE WILL bargain collectively with the above Union
as the exclusive bargaining representative of the above-
described employees, by signing the February 10 contract
between us and the Union, if requested by the Union,
substituting a union security clause allowing present
employees 30 days to join the Union for the inadvertantly
illegal portion of the union security clause requiring present
1424
employees to join immediately.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERCITY PETROLEUM
MARKETS, INC.,
D/B/A RED TRIANGLE OIL
COMPANY, AND RED
TRIANGLE SUPPLY COMPANY,
INC,
(Employer)
This Notice must remain posted for 60 consecutive days from
the date of posting, and must not be altered, defaced, or covered
by any other material.
If employees have any question concerning this Notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San Francisco,
California 94102, (Telephone 556-0335).
Dated By
(Representative) (Title)