Ries Vending Services, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1984

272 N.L.R.B. 1336 (N.L.R.B. 1984)

1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ries Vending Services, Inc and Cardinal Services,
Inc and Industrial, Maintenance and Vending
Machine Service Employees, Local Union 416
Case 8-CA-16318
30 November 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER AND
DENNIS
On 2 August 1983 Administrative Law Judge
Phil W Saunders issued the attached decision The
Respondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat
ed 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 brief and has
decided to affirm the judge s rulings,' findings and
The Respondent has excepted to some of the judge s credibility find
ings 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
We agree with the judge s order requiring the Respondent to recognize
and on request bargain with the Union as the representative of the Re
spondent s employees in the appropriate unit However the judge s
order and conclusions of law do not define the scope of the unit and the
unit description set forth in fn 1 of the judge s decision simply refers to
employees of the Employer The parties did not litigate the Issue of
whether a multiplant unit is appropriate and consequently we shall not
order the Respondent to recognize the Union as the employees repre
sentative at both of the Respondent s facilities We construe the judge s
order to require the Respondent to recognize and bargain with the Union
as the representative of the employees in the existing unit at the former
Ries facility in Sandusky Ohio
Members Zimmerman and Dennis agree with the judge s conclusion
that the Respondent s withdrawal of recognition was unlawful only for
the reasons stated below The Board s principles concerning an employ
er s burden of rebutting an Incumbent union s presumption of majority
status are well settled A certified union upon expiration of the first year
following certification enjoys i rebuttable presumption that its majority
representative status continues An employer may rebut the presumption
by demonstrating either that the union in fact no longer enjoyed majority
status Further in order to sustain the second of these defenses the em
ployer must show that its asserted doubt is based on objective consider
ations and that It was not advanced for the purpose of gaining time in
which to undermine the union E g Bennington Iron Works Inc 267
NLRB 1285 (1983) Terrell Machine Co 173 NLRB 1480 1481 (1969)
enfd 427 F 2d 1088 (4th Cir 1970) In sum any doubt as to the continu
mg majority status must rest on a reasonable basis and may not depend
solely upon unfounded speculation or a subjective state of mind NLRB
v Gulfmont Hotel Co 362 F 2d 588 (5th Cir 1966)
While Member Hunter agrees with the judge s conclusions that the Re
spondent s withdrawal of recognition was unlawful he does not adopt
the judge s statement that an employer who seeks to withdraw recogni
lion from an incumbent union must overcome the union s presumption of
majority support with a clear cogent and convincing showing that the
union has actually lost its majority status or that objective factors exist to
support a reasonable doubt of the union s majority status The Board s
principles concerning an employer s burden are well settled A certified
union on expiration of the first year following certification enjoys a re
buttable presumption that its majority representative status continues An
employer may rebut the presumption by demonstrating either that the
union in fact no longer enjoyed majority status or that its refusal to bar
gain is predicated on a good faith and reasonably grounded doubt of the
union s majority status See e g Bennington Iron Works supra Terrell
conclusions and to adopt the recommended Order
as modified 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent Cardinal Services Inc Sandusky Ohio,
its officers agents successors and assigns shall
take the action set forth in the Order as modified
1 Insert the following as paragraph 1(b) and re
letter the subsequent paragraphs accordingly
(b) Repudiating the collective bargaining agree
ment with the Union
2 Insert the following as paragraph 2(b) and re
letter the subsequent paragraphs accordingly
(b) On the Union s request reaffirm, honor and
apply all the terms in the collective bargaining
agreement with the Union
3 Substitute the attached notice for that of the
administrative law judge
Machine Co supra The Board s decisions do not require an employer to
meet the stringent clear cogent and convincing standard in order to
-rebut the presumption of a union s majority status
The judge found that the Respondent could not rely on the letter of 6
December 1981 and the petition of 11 February 1982 to support a reason
able doubt of the Union s majority status because those documents were
not prepared until after the Respondent s withdrawal of recognition In
the circumstances of this case Member Hunter agrees that the documents
do not constitute objective considerations sufficient to support a reasons
ble doubt of majority status
The recommended Order has been modified to conform with the
judge s recommended remedy Nothing in the Order shall be construed
to authorize or require the withdrawal of any wage increase or other
benefits terms or conditions of employment which may have been estab
lished since the beginning of the Respondent s unlawful conduct
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT fail or refuse to recognize and on
request, bargain with Industrial Maintenance and
Vending Machines Service Employees Local
Union 416, as your exclusive representative in the
bargaining unit
WE WILL NOT repudiate our collective bargain
ing agreement with the Union
WE WILL NOT unilaterally change any provisions
in the collective bargaining agreement without first
notifying and bargaining with the Union
272 NLRB No 166
RIES VENDING SERVICES 1337
WE WILL NOT discharge or otherwise discrimi
nate against you because you engage in union or
other protected activities
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL on request bargain collectively with
the Union with regard to rates of pay, hours of em
ployment and other terms and conditions of em
ployment as your exclusive representative in the
bargaining unit
All employees employed by us at our Sandus
ky Ohio facility but excluding hostesses su
pervisors guards professional employees and
office clericals as defined in the Act
WE WILL on request honor and abide by the
terms of our collective bargaining agreement with
the Union
WE WILL offer Scott Montelauro immediate and
full reinstatement to his former job or if that job
no longer exists to a substantially equivalent posi
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings plus interest
WE WILL expunge from our files and records all
references to the discharge of Scott Montelauro
and notify him in writing that this has been done
and that the discharge will not be used as a basis
for future personnel actions against him
CARDINAL SERVICES INC
DECISION
STATEMENT OF THE CASE
PHIL W SAUNDERS Administrative Judge Based on
an initial charge filed on December 6 1982 by Industri
al Maintenance and Vending Machine Service Employ
ees Local Union 416 (the Union Local 416 or the
Charging Party) a complaint was issued on February 25
1983 against Ries Vending Services Inc and Cardinal
Services Inc (sometimes called Respondent or Employ
er) alleging a violation of Section 8(a)(1) (3) and (5) of
the Act Respondent filed an answer to the complaint de
nying it had engaged in the alleged matter Both the
General Counsel and Respondent filed briefs in this
matter
On the entire record in the case and from my observa
ton of the witnesses and their demeanor I make the fol
lowing
I THE BUSINESS OF RESPONDENTS
At all times material Ries Vending Services Inc an
Ohio corporation with an office and place of business in
Sandusky Ohio has been engaged in the retail and
wholesale food service business Likewise at all times
material Cardinal Services Inc (Cardinal) an Ohio cor
poration with an office and place of business in Sandus
ky Ohio has been engaged in the retail and wholesale
food service business
Annually during the course and conduct of the busi
ness operations of Ries Vending and Cardinal Services
Respondent receives gross revenues in excess of $500 000
and receives goods valued in excess of $50 000 at its
Ohio locations directly from points located outside the
State of Ohio
Respondent is now and has been at all times material
an employer engaged in commerce within the meaning
of Section 2(2) (6) and (7) of the Act
Ii THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
It is alleged in the complaint that Ries Vending and
Cardinal are and have been at all times material herein
alter egos and a single employer within the meaning of
the Act that about December 1 1982 Respondent with
drew its recognition of the Union as the exclusive collec
tive bargaining representative of the employees in the
unit involved herein 1 that about December 1 1982 Re
spondent unilaterally granted employees in the unit an
educational assistance plan that about December 1 1982
Respondent unilaterally granted employees in the unit a
profit sharing plan and that about December 1 1982
Respondent discharged employee Scott Montielauro be
cause of his union and concerted activities At the hear
ing the complaint was amended to include the allega
lions that about December 1 1982 Respondent unilater
ally changed the insurance plan available to unit employ
ees by requiring them to pay a portion of the premium
and that on or about the same date Respondent unilater
ally granted unit employees an increase in wages
Ries Vending is engaged in the business of providing
food service to various companies in the northern part of
Ohio through vending machines and was a party to a
collective bargaining agreement with the Charging Party
herein 2 The offices and operations were located in San
dusky Ohio and Ries Vending was primarily owned and
operated by Edward Ries its president and Thomas
Ries its executive vice president
Cardinal is also engaged in the business of providing
food services to various companies by vending machines
and its principal offices and operations are located in
Mansfield Ohio Edward Ries is the president of Cardi
' The following employees of Respondent constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Sec 9(b)
of the Act
All employees of the Employer including maintenance persons route
persons and trainees but excluding supervisors hostesses guards
professional employees and office clerical employees as defined in
the Labor Management Relations Act of 1947 as amended
2 G C Exh 2
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nal Thomas Ries is the executive vice president and all
the other officers of Cardinal appear to be family related
In September 1982 Ries Vending purchased Cardinal
and in this respect Respondent s attorney contends that
the purchase took place for the purpose of operating
both companies and with no intentions of merging the
two but in late October 1982 it became apparent to the
new owners of Cardinal that the best thing to do was to
have Cardinal take over the operations of Ries and retire
its stock and accordingly effective midnight November
30 1982 Ries Vending ceased its existence
This record shows that at the expiration of the work
shift of the employees at Ries Vending on November 30
1982 Tom Ries acting as an officer of Cardinal met
with all Ries employees and testified that he then made
an unconditioned offer of employment to all Ries em
ployees with Cardinal—that he extended the same wages
and benefits that all Cardinal employees received to the
employees of Ries Vending who elected to become em
ployees with Cardinal It appears that Tom Ries in
formed all those who were present at the meeting that to
become an employee of Cardinal they should fill out the
necessary employment forms in order to begin work for
Cardinal on the following day At this same meeting
Tom Ries explained to those who were present that Car
dinal would not accept the union agreement which Ries
Vending had in effect with the Charging Party and all
employees would in effect be covered by all policies of
Cardinal
I turn first to the pivotal issues of whether Cardinal is
an alter ego of Ries Vending
It is of course well settled that an employer which
has not agreed to be bound by the collective bargaining
contract of another company may nevertheless be held
to that contract if it is an alter ego of the signing compa
fly or if it may be said to constitute a single employer
with that company 3
The legal principles to be applied in determining
whether two factually separate employers are in fact
alter egos are well settled The Board has found alter
ego status where two enterprises have substantially
identical management business purpose operation
equipment customers and supervision as well as owner
ship Denzil S Allure 259 NLRB 1323 (1982) Crawford
Door Sales Co 226 NLRB 1144 (1976)
Similarly in determining whether enterprises consti
tute a single employer the controlling criteria are (1)
interrelation of operations (2) common management (3)
centralized control of labor relations and (4) common
ownership Bacchus Wine Cooperative 251 NLRB 1552
(1980) The Board has stressed the first three factors as
well as the presence of control of labor relations How
ever no one of the factors is controlling nor need all of
the controlling criteria be present Single employer
status for purposes of the Act depends on all of the cir
cumstances of the case and is characterized as an absence
of an arm s length relationship found among unintegrat
ed companies Bacchus Wine supra Blumenfeld Theatres
3 See Peter Kiewa Sons Co 206 NLRB 562 (1972) (vacated on other
grounds) Also Big Bear Supermarkets 239 NLRB 179 (1978)
Circuit 240 NLRB 206 215 (1979) enfd 626 F 2d 865
(9th Cir 1980)
I am in agreement that the documentary and testimoni
al evidence in this record conclusively supports the con
elusion that Cardinal is the alter ego of Ries First Gen
eral Counsel Exhibits 3 and 4 which are the operative
documents governing the merger of the two corpora
lions show an identity of ownership and management hi
erarchy Second Cardinal after the merger operated
from the same facilities owned by Ries Vending Third
both firms are engaged in the identical business of the
retail and wholesale distribution of food products
through vending machines As also indicated this record
further establishes that most if not all of the customers
formerly served by Ries Vending were after November
30 1982 served by Cardinal utilizing the same equip
ment and vending machines Furthermore Cardinal
hired all employees of Ries with the exception of Scott
Montielauro whose discharge is at issue in this proceed
ing and the former supervisory personnel of Ries Vend
ing were also transferred to Cardinal and continue to
serve in a supervisory capacity
The Employer claims that for all purposes and all ap
pearances Ries Vending ceased to exist at midnight No
vember 30 1982 However the testimony of Scott Mon
tielauro as well as Business Agent Anthony Conno es
tablishes that the Ries logo still appeared on employee
uniforms and on the facilities being utilized by Cardinal
even a few days after the first corporation was assumed
by the second
In the final analysis I am in agreement that every cn
tena set forth by the Board for determining whether an
alter ego situation exists has been met in the case at bar
Consequently on the basis of the entire record and spe
cifically on the basis of the facts noted above I find that
Cardinal Services Inc is a continuation and alter ego of
Ries Vending Services Inc
As a result of its alter ego status Cardinal was obligat
ed to recognize the Union as the exclusive bargaining
representative of the employees in the unit represented at
Ries Vending This of course would be true even if
Cardinal were merely the successor of Ries Additional
ly however as also pointed out the obligation of an
alter ego requires that it abide by the terms of any exist
ing collective bargaining agreement
The collective bargaining agreement in this case was
effective by its own terms from June 5 1980 until June
5 1983 Consequently the terms and conditions of em
ployment set forth in the contract were in full force and
effect at the time Ries Vending was acquired by Cardi
nal but Cardinal immediately withdrew this recognition
upon its takeover as aforestated
Additional happenings and sequence of events are also
in general accord and with little dispute as reflected by
this record and as outlined by the General Counsel
On November 30 1982 Respondent unilaterally
changed certain terms and conditions of employment of
the employees in the bargaining unit represented by the
Charging Party and admittedly without any prior notice
to or bargaining with the Union as the bargaining repre
sentative of such employees Specifically Cardinal grant
RIES VENDING SERVICES 1339
ed the employees an educational reimbursement plan
which they had not enjoyed at Ries and Cardinal also
enrolled the former employees of Ries in a profit sharing
plan which had not been available to them when they
were employed at Ries Vending The profit sharing plan
as well as the educational reimbursement plan had been
available to Cardinal employees and were made applica
ble to the Ries employees being brought over Moreover
during the course of the hearing before me two other
unilateral changes came to light and the complaint was
amended to show an increase in wages and a change in
the required employee contribution to the health insur
ance plan The health insurance plan enjoyed by Ries
employees had been fully paid by Ries Vending Howev
er when Cardinal assumed control the employees
became subject to a certain percentage contribution
which they had to pay and of course this constituted a
substantial diminution in the insurance benefit and this
also occurred without prior notification to or bargaining
with the Union In addition the wages received by Ries
employees were unilaterally raised when they were
brought over and employed by Cardinal and this in
crease was brought about in an effort to offset the em
ployee contribution to the insurance plan
There is no dispute that Cardinal repudiated the col
lective bargaining agreement and withdrew its recogni
tion of the Union but counsel maintains that it was justi
fled in both its disavowal of the contract and withdrawal
of recognition Respondent argues that abrogation of the
contract was lawful because the merger of Ries Vending
and Cardinal constituted a bonafide purchase Further
Respondent asserts that withdrawal of recognition was
predicated on a loss of majority status 4
In response to the contention that the subsumation of
Ries Vending was accomplished in an arm s length com
mercial transaction the General Counsel points to the
operative documents of merger as previously noted and
states that these documents speak for themselves I am in
agreement that the combination of the two corporate en
tities was not affected by sale but was accomplished by
merger of assets and an eventual retirement of stock in
the extinguished entity that no elements of a sale were
present in the transaction and as pointed out to claim
there were such elements is to ignore all of the evi
dence—both closely held corporations were operated by
the same people in the same family
4 Counsel for the Employer points out that Ries Vending had a total of
approximately 52 employees of which only 10 were represented by the
Charging Party and that this is far short of majority representation in a
collective bargaining unit that is the only appropriate bargaining unit—
this being the entire 52 employees Next that Cardinal had every reason
to doubt the continued majority support of the 10 employees whom the
Charging Party claims they represent and because of these two factors
Cardinal was no longer required to recognize the Charging Party as the
majority representative of the employees (not even the 10 stated above)
and also Cardinal was no longer required to be bound by the terms of the
agreement Ries Vending had with the Union Counsel also argues that
even assuming arguendo a finding that Cardinal was a successor to Ries
he would still maintain that Cardinal was neither required to recognize
the Union nor give further credence to any union agreement because
Cardinal like any new employer in this type of situation had every right
to cancel such contract pursuant to NLRB v Burns Security Services 406
US 272 (1972)
It is also noted that with the exception of identity of
ownership the criteria of successorship parallel those for
alter ego NLRB v Burns Security Services supra The
material difference between the two designations is that a
successor while obligated to recognize the union is not
obligated to adopt and follow an existing labor agree
ment but under either theory an employer is not free to
unilaterally alter represented employees terms and con
ditions of employment in arrogant disregard of their rep
resentative and even a successor employer which plans
to retain the employees in the unit is required to initially
consult with the employees bargaining representative
before fixing any terms and conditions of employment
NLRB v Burns Security Services supra at 294
Respondent s argument to the effect it was justified in
withdrawing recognition because it believed in good
faith that the Charging Party had lost its status as the
representative of a majority of employees in the unit is
equally rejected 5
First as also pointed out the collective bargaining
agreement involved in this case remained in effect until
June 5 1983 and an employer s recognition of a union as
the representative of a group of its employees in an ap
propnate unit raises a presumption that the union enjoys
majority support That presumption continues through
out the terms of the collective bargaining agreement and
in a weaker form even after the expiration of the agree
ment E g Pioneer Inn Associates v NLRB 578 F 2d 835
(9th Cir 1978) An employer that seeks to terminate a
collective bargaining relationship by withdrawing recog
ninon from an incumbent union must overcome the pre
sumption of majority support for that union with a
clear cogent and convincing showing of either actual
loss of majority status or of objective factors sufficient to
support a reasonable and good faith doubt of that union s
majority NLRB v Tahoe Nugget 584 F 2d 296 297 (9th
Cir 1978) This is a high standard of proof (Retired
Persons Pharmacy v NLRB 519 F 2d 486 491 (2d Cir
1975)) which requires more than unfounded speculation
of a subjective state of mind (NLRB v Gulfmont Hotel
Co 362 F 2d 588 589 (5th Cir 1966)) For when an
employer chooses to unilaterally disrupt an established
bargaining relationship without an election the threat to
industrial peace must be counterbalanced by good
cause NLRB v Tahoe Nugget 584 F 2d at 301-302
Further it is settled that an employer s claim of good
faith doubt as to a union s continuing majority status
5 Margaret Wolfe the Union s steward at Ries Vending testified that
the employees decided long before Cardinal took over that they would
be better off without the Union—they wanted out because they were not
being represented by the Union She also testified that the drivers hired
an attorney who wrote a letter dated June 21 1982 to Jackie Presser a
well known International union officer with the Teamsters indicating
they wanted out of Local 416 (R Exh 2) and that the employees fol
lowed this document with a letter to Local 416 dated December 6 1982
signed by all the union members requesting withdrawal cards from the
Union (R Exh 3) Wolfe testified that they also wrote a letter to the
NLRB in Cleveland petitioning the Board inter alia to refrain from fore
ing them to become and remain members of any union and that this peti
non was also signed by all union members (R Exh 4) Wolfe further tes
tified she notified the Employer (Tom Ries) of the request for withdraw
al cards and also sent the Employer a copy of their petition She further
testified that she notified the Employer of the petition to the NLRB
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must be evaluated as of the time when the refusal to bar
gain occurs NLRB v Gulfmont Hotel Co 362 F 2d at
589 NLRB v Tahoe Nugget 584 F 2d at 30 fn 25
In order for the Employer to prevail in the instant
case it must be demonstrated that the Union did not in
fact enjoy a majority support at the time of the refusal
to bargain or that It had reasonable doubt based on ob
jective considerations for believing the Union had lost its
majority status when it refused to bargain
The record evidence with respect to Respondent s
challenge of the Charging Party s majority status intro
duced through former Steward Margaret Wolfe consists
of the following First Respondent s Exhibit 2 an un
signed letter addressed to Jackie Presser requesting that
the employees represented by the Charging Party
should for administrative purposes be assigned to an
other local union of the Teamsters Respondent s Exhib
its 3 and 4 consist of a request by unit members of the
Charging Party to Issue withdrawal cards and a petition
signed by the 10 unit members requesting that the mem
bers be relieved of their responsibilities for maintaining
union membership and paying union dues pursuant to a
union security clause The date of Employer s Exhibit 3
is December 6 1982 while that of the petition bears
dates of employees signatures of February 11 1983
As pointed out it is obvious that the request for with
drawal cards and the petition to be relieved of the obit
gations under the union security clause were prepared
and submitted after Cardinal had withdrawn recognition
from the Union and refused to bargain and on this basis
they cannot be considered in determining whether the
Employer had a good faith belief that the Union did not
enjoy its majority status at the time of the withdrawal of
recognition 6 Moreover the letter requesting a transfer
to Local No 20 of the Teamsters Union as aforestated
is an insufficient basis on which to base a finding that the
Employer had a good faith belief that the Charging
Party did not represent a majority of the employees in
the unit As indicated there is nothing in the letter
which even suggests a desire on the part of a majority of
employees in the unit to rid themselves of representation
Indeed the letter is unsigned and apparently written by a
member of a law firm There is also no record evidence
that this letter came to the attention of the Employer or
Cardinal before it withdrew recognition on November
30 1982
In summary an employer s reasonably based doubt
must be founded on objective considerations and raised
in a context free of unfair labor practices and the time
for ascertainment of both must be at the time of refusal
to bargain not thereafter Therefore under any theory
applicable to the facts in the instant case the Employer
was obligated to recognize and bargain with the Charg
ing Party
Turning now to the alleged discriminatory discharge
of Scott Montielauro on December 1 1982 The Em
ployer contends that Montielauro voluntarily terminated
or quit his employment when he failed to complete and
sign certain employment documents of Cardinal when
they were distributed on the evening of November 30
1982 7 The General Counsel asserts that Montielauro
was discharged when he did not immediately acquiesce
in the procedures attending Respondent s numerous
unfair labor practices
As previously set forth there was a meeting on No
vember 30 1982 where Tom Ries speaking as an officer
of Cardinal made an offer of employment to all Ries em
ployees and informed them that all they had to do was
fill out Cardinal employment forms Tom Ries explained
he wanted everyone to become employees of Cardinal
because effective midnight they would no longer be em
ployees of Ries
Montielauro was at the meeting here in question and
testified there were indications that some of the forms
employees were asked to sign were not part of the union
contract and he also felt like he was being pressured
into signing them and as a result did not do so and as he
was leaving the meeting he returned the forms to Super
visor Ronald Baum but then agreed to sign only the
W-4 form
On December 1 1982 Montielauro reported for work
at the same facility he had been working at but could
not find his timecard and was then told by Supervisor
Baum that because he did not sign the employment
forms on the previous evening he was no longer em
ployed as Ries Vending was out of business Montielauro
then had the Union file a grievance in his behalf—see
General Counsel s Exhibit 10
Counsel for the Employer argues that Montielauro
was well aware that if he had accepted the employment
offer by Tom Ries on November 30 he would have been
a Cardinal employee on the next day—all he had to do
was fill out the employment forms and given such facts
there can be no fault or liability on the part of either of
Respondents—that it is crystal clear Montielauro urn
laterally and precipitously quit his job and by his actions
at the November 30 meeting became an applicant who
refused employment and was not discharged impermissi
bly or otherwise by Respondent
In making my final conclusions as to Montielauro it is
first noted that there is nothing in the record which sup
ports the assertion that he quit his employment All the
evidence militates in favor of the contrary finding that
Montielauro was discharged
As indicated the announcement to employees that
Ries Vending was being merged into Cardinal took place
at a compulsory meeting conducted at approximately 7
p m on November 30 1982 after the employees shifts
ended It was chaired by Tom Ries and without any
notice or warning whatsoever the employees were told
that Ries Vending no longer existed that they were no
longer represented by a labor union that the collective
bargaining agreement was vitiated and that all employ
ees would be subjected to the same policies as all other
Cardinal employees Tom Ries then distributed docu
ments which have been described above including one
which set forth the intentions of the Employer to merge
its disavowal of union contract and withdrawal of rec
6 See also Orion Corp 210 NLRB 633 (1974) and Bartendcrs Assn of
Pocatello 213 NLRB 651 at 653 (1974) 7 See G C Exhs 6 7 8 and 9
RIES VENDING SERVICES 1341
ognition from the Union 8 However this document did
not require an employee signature in contrast to the
other forms distributed Tom Ries also informed the em
ployees that the forms had to be submitted by midnight
November 30 1982
From this record it is obvious that Scott Montielauro
then realized that the commitments he was being asked
to make during this meeting here in question were in
conflict with the collective bargaining agreement 9 and
also felt that he was being pressured into signing the em
ployment forms and then decided to exit from the meet
ing and contact his Union before taking any actions since
the Union was his representative However the door to
the meeting room was locked and he first had to request
that it be opened Montielauro then exited into the park
mg lot but was pursued by Supervisor Ron Baum who
asked him where he was going Montielauro responded
that he was going to his car Baum asked him if he
would at least sign the W-4 forms so they could process
the payroll information Montielauro then signed the
W-4 form as aforestated Baum then specifically asked
him whether he wanted to work for Cardinal and Mon
tielauro responded in the affirmative Baum then re
turned to the building and Montielauro went home to
contact his Union
From the above events it is quite apparent that the
Employer must have been aware that Montielauro had
no intention of terminating his employment and indeed
had expressly informed Supervisor Baum that he wished
to work Moreover at Baum s request Montielauro exe
cuted the W-4 form which the Employer required to
process his payroll information for continued employ
ment at Cardinal There is no evidence in the record to
refute these facts and I am in agreement with the Gener
al Counsel that in light of these facts Respondent cannot
successfully contend that Montielauro had expressed his
intention to quit merely by leaving the meeting on No
vember 30 without signing employment forms
As also indicated Montielauro s subsequent conduct
also reflects his desire to continue working At his next
scheduled shift on December 1 1982 he appeared for
work only to find that his timecard had been removed
from its customary place and he then protested his dis
charge by immediately filing a grievance with the Union
which the Union attempted and continues to attempt to
process
Devoid as the record is of any evidence that Scott
Montielauro voluntarily terminated his employment it is
clear that the Employer discharged him and did so be
cause he did not immediately acquiesce in the Employ
er s demands coming as they did in the context of the
Employer s unfair labor practices 10
8 See G C Exh 5
9 As a general proposition the Act protects employees who seek to
implement a collective bargaining agreement by protesting employer re
fusals to honor Its terms and conditions See eg B&M Excavating 155
NLRB 1152 1154 (1965) enfd per cunam 368 F al 624 (9th Or 1966)
R W Little Inc 201 NLRB 454 459-460 (1973) enfd 493 F 2d 1245
(9th Or 1974)
'° The General Counsel suggests that the Employer had set a stage for
what could only be described as a blitzkreig designed to overwhelm
the employees and bring about the desired result—and which was their
total submission in the face of instant unemployment I am in agree
In the final analysis it is quite apparent that Montle
lauro left the meeting on November 30 1982 to show
his opposition to the unfair labor practices committed by
the Employer and further to seek assistance in coping
with a situation which caused confusion and uncertainty
relative to his employee status As Montielauro stated—
he was aware that what was being done was JD contra
vention of the collective bargaining agreement and
which he knew governed his terms and conditions of em
ployment 11
Certainly the Employer after having committed nu
merous unfair labor practices cannot reap the benefit of
his conduct by now successfully contending that an em
ployee who refused to go along with their hurry up pro
gram voluntarily resigned Faced with the General
Counsel s prima facie case Respondent has not estab
lished that the discharge would have taken place in the
absence of Montielauro s protected activity See general
ly Wright Line 251 NLRB 1083 (1980)
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com
merce within the meaning of Section 2(6) and (7) of the
Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 Cardinal Services Inc is a continuation and alter
ego of Ries Vending Services Inc
4 The unit set forth herein constitutes an appropriate
unit for collective bargaining within the meaning of Sec
tion 9(b) of the Act
5 At all times material the Union has been the exclu
sive collective bargaining representative of the employ
ees in the unit described herein
6 By engaging in the conduct described in section III
above Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) (3) and (5) of the Act
THE REMEDY
Having found that Respondent Cardinal has engaged
in certain unfair labor practices I shall recommend that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
It has been found that Respondent has unlawfully
withdrawn recognition from the Union and has failed
and refused to bargain collectively with the Union as ex
elusive representative of the employees in an appropriate
unit It will therefore be recommended that Respondent
be required to recognize and on request bargain with
the Union as exclusive representative of the employees in
the appropriate unit set forth herein It is further recom
mended that Respondent give full force and effect to the
terms and conditions of employment set forth in the col
lective bargaining agreement and that they cease and
ment that this description or summation may well fit the particular cir
cumstances here involved and which surrounded the events and happen
ings on the evening of November 30
' Montielauro specifically testified as follows Yes I felt some of
these forms weren t part of the union contract that we had with them
and I felt that I was being pressured Into signing these forms
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desist from unilaterally changing any provisions thereof
without first notifying and bargaining with the Charging
Party
It also having been found that Respondent discrimina
tonly discharged Scott Montielauro I shall recommend
that Respondent offer him immediate and full reinstate
ment to his former or substantially equivalent position
without prejudice to seniority or other rights and pnvi
leges and make him whole for any loss of earnings he
may have suffered by reason of the discrimination
against him by payment of a sum of money equal to that
which he would have normally earned from the date of
his discharge less net earnings during said period All
backpay provided herein shall be computed with interest
on a quarterly basis in the manner described by the
Board in F W Woolworth Co 90 NLRB 289 (1950) and
with interest thereon computed in the manner and
amount prescribed in Florida Steel Corp 231 NLRB 651
(1977) See also Isis Plumbing Co 138 NLRB 716 (1962)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed '2
ORDER
The Respondent Cardinal Services Inc Sandusky
Ohio its officers agents successors and assigns shall
1 Cease and desist from
(a) Failing and refusing to recognize and bargain col
lectively with the Union as the exclusive representative
of all the employees in the appropriate unit described
herein with regard to rates of pay wages hours of em
ployment and other terms and conditions of employ
ment
(b) Unilaterally changing any provisions of the collec
tive bargaining agreement without first notifying and
bargaining with the Union
(c) Discharging or otherwise discriminating against its
employees because they engage in union or other pro
tected activities
12 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
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 pur
poses
(d) In any like or related manner interfering with re
straining 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
effectuate the policies of the Act
(a) Recognize and on request bargain collectively
with Industrial Maintenance and Vending Machine
Service Employees Local Union 416 as the exclusive
representative of all employees in the appropriate unit
described herein with regard to rates of pay hours of
employment and other terms and conditions of employ
ment
(b) Offer Scott Montielauro immediate and full rein
statement to his former job and make him whole for any
loss of pay and other benefits in the manner set forth in
the remedy section of this decision
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Remove from its files any reference to the unlaw
ful discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against him in any way
(e) Post at its facility in Sandusky Ohio copies of the
attached notice marked Appendix 13 Copies of the
notice on forms provided by the Regional Director for
Region 8 after being signed by the Respondent s author
ized representative shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu
tive 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
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
i3 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board