Ron Tirapelli Ford

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 576 (N.L.R.B. 1991)

576
304 NLRB No. 73
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge did not make conclusions of law, so we have included them
as part of our decision. In so doing, we grant the General Counsel’s exception
which requested an express legal conclusion that the Respondent violated Sec.
8(a)(5) and (1) by unlawfully refusing to recognize and bargain with the
Union. Although the judge failed to make this explicit conclusion, he did pro-
vide a remedy for this violation.
2 The judge’s decision concerning the payment of contributions on behalf of
unit employees to fringe benefit funds as required under the collective-bargain-
ing agreement is controlled by Manhattan Eye, Ear & Throat Hospital, 300
NLRB 201 (1990), in which the Board reaffirmed precedents requiring the
payment of such fund contributions and expressly overruled Hassett Mainte-
nance Corp., 260 NLRB 1211 (1982), to the extent it held to the contrary.
Accord: Stone Boat Yard v. NLRB, 715 F.2d 441, 446 (9th Cir. 1983), enfg.
264 NLRB 981 (1982), cert. denied 466 U.S. 927 (1984). Although the United
States Court of Appeals for the Second Circuit recently denied enforcement
of the fund repayment order in Manhattan Eye, it expressly relied on the spe-
cial facts of that case–-in particular, the fact that the repayment order included
the period after the union had disclaimed any interest in representing the em-
ployees and the employees had no future interest in the stability of the fund.
Manhattan Eye, Ear & Throat Hospital v. NLRB, 942 F.2d 151 (2d Cir. 1991).
The court stated that it was not holding that the Board was ‘‘not empowered
to order imposition of the status quo ante in other cases where an employer
unilaterally discontinues payments to union-sponsored funds.’’ Id. at 159. The
considerations that influenced the court are not present in this case, where the
employees continue to be represented by the Union and to have an interest
in the viability of the funds.
Ron Tirapelli Ford, Inc. and General Chauffeurs,
Sales Drivers and Helpers Union Local No.
179, an affiliate of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL–CIO. Cases 33–
CA–8767, 33–CA–8824, and 33–RM–294
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On April 1, 1991, Administrative Law Judge Harold
Bernard Jr. issued the attached decision. The General
Counsel filed an exception and a brief in partial sup-
port of the judge’s decision, and the Respondent filed
cross-exceptions and a brief in support. The Charging
Party filed a brief in opposition to the Respondent’s
cross-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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions,1 and to adopt the recommended Order.2
1. The Respondent has not excepted to the judge’s
findings that it committed various violations of Section
8(a)(1) of the Act in connection with the circulation of
a decertification petition and that the unlawfully as-
sisted petition formed the basis for the Respondent’s
filing of an RM petition. It argues, however, that the
Board may not dismiss the RM petition on which an
election was held, (1) because the judge did not make
a finding, as he would in a case involving a bargaining
order under NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), that a fair rerun election could not be held, and
(2) because the Union had stipulated to a consent elec-
tion on the petition and did not file unfair labor prac-
tice charges on the petition-tainting conduct prior to
the election. We find no merit to these contentions.
The Respondent correctly observes that this is not a
Gissel case; it is a case involving an incumbent union
that was the object of an unlawfully assisted decerti-
fication effort. The judge accordingly had no reason to
make the kinds of findings that would be necessary to
support a Gissel bargaining order. As for the Union’s
failure to object to the petition-tainting conduct prior
to the election, we note that the Union did not gain
knowledge of the Respondent’s unlawful conduct until
after the election. The Union was therefore unable to
file charges or otherwise object to that conduct before
the election and was unaware of the inappropriateness
of the Stipulated Election Agreement at the time it
signed it.
2. The Respondent also argues that the date of filing
the petition should be the cutoff time for considering
alleged objectionable conduct, citing Ideal Electric &
Mfg. Co., 134 NLRB 1275 (1978). The Respondent’s
reliance on Ideal Electric is misplaced. The judge did
not set aside the election on the basis of conduct af-
fecting the election, as suggested by the Respondent.
Rather, he found that the RM petition itself was tainted
by the Respondent’s unfair labor practices, and was
thus void ab initio. This being the case, he rec-
ommended that the petition be dismissed; thus the
question whether the election should be set aside never
became ripe for decision. It is as if the election had
never been held, and the parties are restored to the sta-
tus quo ante with respect to their bargaining relation-
ship.
CONCLUSIONS OF LAW
1. The Respondent, Ron Tirapelli Ford, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, General Chauffeurs, Sales Drivers and
Helpers Union Local No. 179, an affiliate of the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. The Union has been and continues to be the ex-
clusive representative for the purposes of collective
bargaining of the following employees:
All full-time and regular part-time countermen
and parts men; shipping and receiving clerks;
stockmen; employees performing towing, emer-
gency service, and minor repair work; pick up and
delivery drivers; lubrication employees; car pol-
ishers; undercoat rust preventive employees; car
washers; used car clean-up employees; watchmen
and porters; and general helpers employed by the
577RON TIRAPELLI FORD
1 The unit as described in more detail in the parties’ stipulated election
agreement is:
All full-time and regular part-time countermen and parts men; shipping
and receiving clerks; stockmen; employees performing towing, emergency
service, and minor repair work; pick up and delivery drivers; lubrication
employees; car polishers; undercoat rust preventive employees; car wash-
er; used car clean-up employees; watchmen and porters; and general help-
ers employed by the Employer at its 2000 West Jefferson Street, Joliet,
Illinois facility; but excluding office clerical employees, professional em-
ployees, all other employees, guards, and supervisors as defined in the
Act.
Employer at its 2000 West Jefferson Street, Joliet,
Illinois facility; but excluding office clerical em-
ployees, professional employees, all other employ-
ees, guards, and supervisors as defined in the Act.
4. By promising employees better benefits if they
get rid of the Union, interrogating employees concern-
ing their union activities, soliciting employees by
threats or promises to sign a petition to get rid of the
Union, assisting employees in the preparation and cir-
culation of a petition to get rid of the Union, threaten-
ing employees with discharge if they supported the
Union, creating the impression that employee union ac-
tivities are under surveillance, promising an employee
a better position with more money if he signed a peti-
tion to get rid of the Union, and threatening an em-
ployee with the loss of the Company’s good will and
owner’s helpful association unless the employee signed
a petition to get rid of the Union, the Respondent has
violated Section 8(a)(1) of the Act.
5. The acts and conduct described in paragraph 4
above tainted the RM petition filed by the Respondent,
and warrant the nullification and dismissal of such pe-
tition.
6. By withdrawing recognition from the Union, re-
fusing to bargain with the Union as the exclusive bar-
gaining representative of its employees in the bargain-
ing unit described above, and by unilaterally changing
or terminating fringe benefit plans contained in the col-
lective-bargaining agreement, or unilaterally making
any other changes in the terms and conditions of em-
ployment for bargaining unit employees without noti-
fying or bargaining with the Union, the Respondent
has violated Section 8(a)(5) and (1) of the Act.
7. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Ron Tirapelli Ford, Inc.,
Joliet, Illinois, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Deborah A. Fisher, Esq., for the General Counsel.
Roger N. Gold, Esq., of Chicago, Illinois, for the Charging
Party.
Lawrence M. Cohen, Esq. and Diane Kristen, Esq., of Chi-
cago, Illinois, for the Respondent.
DECISION
HAROLD BERNARD JR., Administrative Law Judge. I heard
this case on November 29, 1989, in Joliet, Illinois, pursuant
to charges filed on July 14, 1989, and a complaint issued
August 23, 1989, alleging that Respondent solicited employ-
ees to sign a petition against representation by the Union to
be used as a basis for Respondent to file an RM petition to
decertify the Union, threatened employee discharge, prom-
ised employees benefits, unlawfully interrogated employees
regarding their union sympathies, and created the impression
of surveillance of employees’ union activities in order to dis-
courage employee support for the Union in violation of Sec-
tion 8(a)(1) of the Act.
The parties’ briefs have been carefully considered.
On the entire record, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation located in Joliet, Il-
linois, where it sells automobiles. Annual sales exceed
$500,000, and annually Respondent purchases products val-
ued in excess of $50,000 directly from sources outside Illi-
nois. I find Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. The
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
The Union became the collective-bargaining representative
for employees in an appropriate unit1 of parts department
employees, nonmechanical employees, nonsales employees,
porters, and washers, about 1959, when the automobile deal-
ership was owned by Emich Ford. Respondent purchased the
business in 1984 and continued recognition of the Union as
representative for employees in the long-established bargain-
ing unit. The parties’ latest collective-bargaining agreement
ran from August 1986 to July 1989. (G.C. Exh. 3 at 12.) On
August 15, 1989, the Union wrote Respondent’s Owner Ron
Tirapelli requesting negotiations for a new agreement and the
processing of an unanswered grievance filed earlier that
month. Counsel for Respondent refused the request by letter
on August 21, 1989, because ‘‘the union’s right to continue
representation of the bargaining unit employees is presently
being determined by [the Board].’’ General Counsel Exhibit
9, counsel referring to a Board-conducted election in Case
33–RM–294 held on July 11, 1989, resulting in a 3–3 tie
vote by employees on the question whether they desired
union representation, and union objections to conduct affect-
ing said RM election filed on July 14, 1989.
Counsel for General Counsel alleges that Respondent’s
basis for refusing to recognize and bargain with the Union
lacks legal merit because Respondent unlawfully solicited
employee support for the RM petition—based election by nu-
merous coercive acts which warrant, inter alia, nullification
of the RM case results and a bargaining order remedy.
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Edward Mance
Parts man for 30 years and still an employee in the unit
at the time of this hearing, Mance responded to a call from
Ron Tirapelli in May 1989 to meet in his office alone.
Tirapelli told him he would get Mance shares in the Com-
pany if Mance would think about getting out of the Union;
and, in addition would also put him in profit sharing, where
he would be fully vested. Tirapelli told Mance he would
have to sign a paper so Mance could get out of the Union,
that he thought he had three signed and he’d like to have
Mance as the fourth so he could get out of the Union; that
there was only so much time before the contract expired in
July. Mance said he’d have to consider losing the union pen-
sion but Tirapelli told him he’d probably get more out of the
shares and profit sharing than the pension, telling Mance in
another meeting a week later that the shares alone would get
him $350 to $400 a month plus the profit sharing. Mance
testified that at a third meeting that June Tirapelli also prom-
ised that he’d be put on a much better insurance plan than
the one he was on, and also, that during meetings with
Tirapelli, he asked Mance whether he had signed the petition
yet. On cross-examination Mance testified in accord with his
answers on direct testimony that Tirapelli told him he’d like
to have the Union out so he could hire more people and not
have to pay union scale. I found the veteran employee, still
employed by Respondent and therefore with much to lose by
testifying adversely to his employer’s interests, candid and
forthcoming in his testimony. Tirapelli carefully guarded his
denials with qualifiers such as ‘‘not to my knowledge’’
where more forthright denials seemed appropriate in the con-
text of questions put to him, evaded questions, was not re-
sponsive to many questions, gave wishy washy denials, was
fed leading questions, and equivocated throughout. I credit
Mance and find that Tirapelli promised Mance benefits, in-
terrogated him concerning union activities in coercive cir-
cumstances and by communicating his belief to Mance that
three other employees had signed the petition against further
representation by the Union, created the impression that Re-
spondent was keeping the union activities of its employees
under surveillance, in violation of Section 8(a)(1) of the Act.
B. Ramiro Caudillo
Parts-driver and later counterman employee at the time of
this hearing, Caudillo testified to a meeting alone with
Tirapelli in his office late April early May 1989, during
which Tirapelli granted Caudillo a requested advance asking
him if he thought the Union would give him one, and telling
him he could get rid of him whether there was a union there
or not, and prefacing his further remarks by saying that if
Caudillo discussed the conversation with anyone he’d deny
it. Tirapelli told Caudillo he had money put away for ‘‘us’’
and ‘‘we’d’’ be entitled to full shares in January, stating that
there was a petition going around to get rid of the Union and
he needed one more signature, and the Union would be out.
Tirapelli then said he’d appreciate it if Caudillo would sign
the petition and that he’d look into getting some shares for
Caudillo like other employees were getting in the parts de-
partment.
In a second conversation 2 weeks later on the car lot,
Tirapelli approached Caudillo and told him he hadn’t signed
the petition yet that employee William Bellinghiere had
going around and if he was worrying about older employees
not to because he had talked to his lawyer and ‘‘I’d be fully
vested in this other funding (sic)—it took the place of the
pension.’’ Caudillo further testified he had not been aware of
any fund referred to by Tirapelli before the latter mentioned
it to him during their first discussion. During a third discus-
sion at a parts department employees meeting with Tirapelli,
Caudillo testified that Tirapelli promised employees a better
insurance plan than the union plan, with more coverage, tell-
ing them he would appreciate it if the employees could help
him get rid of the Union. Rather than simply denying out-
right that he had told Caudillo he was covered by the profit-
sharing plan during the May conversation, Tirapelli testified
it (the coverage) was ‘‘impossible,’’ thereby again avoiding
a direct response and leaving Caudillo’s testimony on that
subject undenied. Moreover, on further redirect examination
by his own counsel, he testified that under the shares plan
certain jobs were not previously (or then—at the time of his
discussion with Caudillo regarding such benefit) covered, in-
cluding the job of parts-driver then held by Caudillo, whether
the Union was in or not. This fact fortifies the conclusion
that Tirapelli was promising Caudillo a new benefit if he
withdrew his support for the Union, rather than merely in-
forming him he would automatically be covered by a pre-ex-
isting plan as a nonunion employee as contended by Re-
spondent on brief.
Tirapelli admitted he told employees about a better health
insurance plan than the union plan. He admits further that he
had authority to terminate the shares plan at his discretion
and to terminate the profit sharing plan and Respondent’s in-
surance plan benefits in the future. I credit Caudillo’s frank
testimony over Tirapelli’s versions of his conversation with
Caudillo including the parts department meeting. I find Re-
spondent engaged in an implied threat of discharge when he
informed Caudillo in the context described above that he
could get rid of him whether there was a union there or not,
unlawfully promised him benefits if he would support the
antiunion petition and withdraw support from the Union, and
created the impression Respondent was keeping the union ac-
tivities of its employees under surveillance when Tirapelli in-
formed Caudillo he knew the employee had not yet signed
the petition in early to mid-May 1989, in further violation of
Section 8(a)(1) of the Act.
c. Jeff Momper
Tirapelli testified to meeting alone with parts counterman
Jeff Momper, a unit employee in late April to early May
1989 in the computer room during which Tirapelli recounted
at great length the past long and profitable relationship be-
tween the two men, that he thought a lot of Momper, recall-
ing the weekends at Tirapelli’s home, the yard work he had
provided Momper, telling him to keep up the good work and
‘‘I’ll move you up ladder and bring you into a position—
you’ll be able to make a lot of money and have a good posi-
tion.’’Tirapelli admitted during this 611-c examination that
he mentioned the petition, and added, ‘‘because of all of this
I could really use your support’’ telling Momper if it comes
to an election he’d really like to see him vote his way.
Momper recalls two conversations with Tirapelli in late
April and early May and talks with him in June or early July
concerning the petition. The first occurred when Tirapelli,
who denied this, called Momper on his car phone while
579RON TIRAPELLI FORD
Momper was at work, late April or early May, asking if he’d
gotten together to sign a petition with Bill Bellinghiere say-
ing there was a certain date this had to be done by. During
the next conversation, admitted by Tirapelli and described by
him above, Momper recalls Tirapelli also told him he needed
Momper’s help, that he was getting a certain number of peo-
ple’s names for the petition, that he had helped Momper be-
fore and now Momper could help him. Later in June or early
July Tirapelli paged Momper to his office and said he needed
three to vote the Union out—to get rid of it; told him of his
better insurance and pension plans compared to the union
plans, questioned him as to his union sentiments and told
him he could get rid of Momper if he wanted to whether the
Union was in or out. When questioned under cross-examina-
tion Momper, it became evident, was genuinely uncertain—
if not confused about the existence, content and coverage of
Respondent’s existing benefit plans but recalled that during
the conversations with him Tirapelli said when the Union
was out ‘‘we’’ would get those benefits. Given all the fore-
going, I consider the testimony of Tirapelli that he told Jeff
Momper to vote anyway he wanted to, ‘‘it doesn’t matter’’
unworthy of belief and a further basis to conclude his testi-
mony was not reliable. I find the above further acts of coer-
cive interrogation, promises of benefit to induce Momper to
sign an antiunion petition and vote against the Union, im-
plied threat of discharge, and the implied threat that Momper
would lose the valuable good will of Respondent’s owner
stored up over the years unless he ‘‘helped’’ Respondent rid
itself of the Union by signing the petition further violations
of Section 8(a)(1) of the Act.
d. William Bellinghiere
Assistant manager in new car preparation, Bellinghiere tes-
tified as a witness called by Respondent. Fed leading ques-
tions during direct examination, he testified that he drafted
the antiunion petition, General Counsel’s Exhibit 7, and had
called the National Labor Relations Board to learn he needed
60 percent to sign it, that he did not refer the matter to Re-
spondent owner Tirapelli until after calling the NLRB.
Bellinghiere said he told Tirapelli what he had done and
made sure if this was the right thing to do, that it was filled
out ‘‘right’’ and that Tirapelli said in response he’d have his
attorney look at it. The next day, in the owner’s office,
Tirapelli told Bellinghiere ‘‘everything was exact (sic) thing
to do . . . that as soon as I get it done to send it in.’’ On
cross-examination Bellinghiere testified to further involve-
ment by Respondent, that Tirapelli told him he would send
the petition in for him and that to this end, Bellinghiere left
the petition on Tirapelli’s desk with the signatures of four
out of the six employees he solicited in the dealership, on
worktime in work areas.
He also testified in corroboration of other employees that
Tirapelli told him at the June parts department meeting that
he would get Respondent’s insurance and profit-sharing plan
if the Union was voted out.
Tirapelli unpersuasively denied knowledge of how the pe-
tition initially appeared on his desk or that he asked anyone
to put it there, but admitted he told Bellinghiere his attorney
said he could send it directly to the NLRB or put it on
Tirapelli’s desk. Bellinghiere’s testimony was left undenied
in all major respects by Tirapelli’s account.
Employee Eric Gunder in new car preparation, also called
as a witness for Respondent, testified without denial that
Bellinghiere told him in securing his signature on the em-
ployee petition that he had already spoken to Respondent
owner Ron Tirapelli concerning the petition.
I find that Respondent assisted and encouraged the initi-
ation or early stages in the formulation of the employee peti-
tion by the conduct of Tirapelli in reviewing the petition,
having his attorney look it over and announcing to
Bellinghiere that it was in an approved form exactly the way
it should be done and offering to assist further in its ‘‘fil-
ing.’’ Respondent further as a reasonable inference given
Tirapelli’s testimony that he is all over the dealership contin-
ually on a daily basis and the testimony of Bellinghiere,
knew and tacitly approved the circulation of the petition
throughout its premises in working areas on worktime, noting
further in this connection that Bellinghiere used this implied
approval when he secured the signature of employee Eric
Gunder on the petition, telling him he had already talked to
Tirapelli about the petition.
The record plainly shows that Respondent went further
than putting its imprimatur on the petition when it confronted
employees Mance, Caudillo, and Momper with unlawful co-
ercive acts described above in order to induce them to sign
the employee petition. This conduct occurred in the context
of other unfair labor practices described above to force unit
employees to support decertification of the Union and there-
by interfered with the free exercise of employee rights guar-
anteed in Section 7 of the Act, thereby violating Section
8(a)(1) of the Act. See Central Washington Health Services
Assn., 279 NLRB 60, 64 (1986); D & H Mfg. Co., 239
NLRB 393, 403 (1979); and Placke Toyota, 215 NLRB 395
(1974).
III. REMEDY
I have considered Respondent’s argument against a bar-
gaining order remedy on the ground that by proceeding to an
election the Union waived its rights to seek such relief as op-
posed to a rerun of the election and alternatively that a bar-
gaining order is not appropriate given the absence of perva-
sive violations of the Act, and find such contentions lacking
in merit. As aptly noted on brief by counsel for the Charging
Party, in light of Respondent’s illegal conduct, its admitted
withdrawal of recognition from the Union was improper for,
as he notes, the Board has held:
It is well established that, where an employer has en-
gaged in unlawful conduct tending to undercut its em-
ployees’ support for their bargaining representative, the
employer cannot rely on any resulting expression of
disaffection by its employees because its asserted doubt
of the union’s majority status has been raised in the
context of its own unfair labor practices directed at
causing such employee disaffection,’’ [citing Hancock
Fabric Warehouse, 294 NLRB 189, 192 (May 1989)].
To like effect as further noted by counsel for General
Counsel in her thorough briefing, the Board has held that an
employee petition will be a valid objective consideration sup-
porting an employer’s belief that a union has lost majority
status as required to rebut the presumption of such status en-
joyed by an incumbent union under United States Gypsum,
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In accordance with our decision in New Horizons for the Retarded, 283
NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed
at the ‘‘short-term Federal rate’’ for the underpayment of taxes as set out in
the 1986 amendment to 26 U.S.C. § 6621.
3 The Board does not provide for the addition of interest at a fixed rate on
unlawfully withheld fund payments. Instead, see Merryweather Optical Co.,
240 NLRB 1213, 1216 fn. 7 (1979), for the method of determining any addi-
tional amounts owed to such funds as reimbursement for losses attributable to
the unlawfully withheld contributions. However, the Board does provide inter-
est at a fixed rate on amounts owed to individual employees for their losses
attributable to the unlawful withholding of benefit fund contributions. Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981). Interest on such amounts shall be computed in accordance
with our decision in New Horizons, supra.
4 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 objec-
tions to them shall be deemed waived for all purposes.
157 NLRB 652 (1966), only if, prior to an employer’s reli-
ance on the petition, it has not engaged in conduct designed
to undermine employee support for, or cause their disaffec-
tion with the Union. Hearst Corp., 281 NLRB 764 (1986),
affd. mem. 837 F.2d 1088 (5th Cir. 1988). Respondent can-
not rely on the employee petition herein given its unlawful
conduct and coercive role in its solicitation and support for
the employee petition which conduct clearly sought to under-
mine employee support for, and cause their disaffection with
the Union; therefore, the RM petition filed by Respondent
and admittedly based on said employee petition was tainted
and void from its inception and cannot support a valid elec-
tion. Hearst Corp., supra, and see Alexander Linn Hospital
Assn., 288 NLRB 103 (1988), and Central Washington
Health Services Assn., supra.
I shall accordingly, recommend the nullification and dis-
missal of Case 33–RM–294. Hall Industries, 293 NLRB 785
(1989). The Respondent having therefore unlawfully refused
to recognize and bargain with the Union as the incumbent
exclusive bargaining representative of unit employees, a mat-
ter thoroughly addressed by all parties at this hearing by way
of testimony, exhibits, arguments during the hearing and in
all parties’ briefs, a bargaining order remedy is appropriate.
Respondent further contends that the promised benefits
found herein to constitute unlawful promises were pre-exist-
ing benefit plans given its nonunion employees so that it was
free to advise employees of such coverage should they vote
against the Union. There was no sufficient probative evi-
dence to support the existence of such plans, and employees
testified credibly, in some instances that they did not know
of such benefit plan, or their contents, coverage or eligibility
standards, or were clearly confused about which plan
Tirapelli maintained. Moreover, Respondent admittedly was
free to terminate the benefit plans at his own discretion and
his communications to employees promising them coverage
is an implicit undertaking to exercise such discretion on their
behalf should they withdraw support from the Union; as
such, the promises were unlawful and a remedial order is ap-
propriate. Moreover, while the matter of whether the Re-
spondent had unilaterally terminated specific fringe benefit
plans administered under its contract with the Union was left
to the compliance stage of these proceedings by request of
counsel for the General Counsel, she seeks a remedial order
making employees whole for any losses they incurred in such
case. Since Respondent is found to have promised to cover
employees with its own better benefit plans if the Union was
voted out, a natural concern arises from a reasonable view
that employee rights may have already been derogated in
such regard so that a remedial order, conditional in nature,
is warranted should this be so, and to address any reasonably
present employee concerns in such regard.
Having found that the Respondent has engaged in certain
unfair labor practices, I shall order it to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act. I shall order the Respondent, on request
by the Union, to rescind any unilateral changes it made in
wages and benefits; however, this order should not be con-
strued as requiring the Respondent to cancel any wage in-
crease or other improvement in benefits without a request
from the Union. See, e.g., Elias Mallouk Realty Corp., 265
NLRB 1225 fn. 3 (1982). I shall also order the Respondent
to make its employees whole by reimbursing them for any
wages or benefits they may have lost as a result of its unlaw-
ful unilateral changes, with interest.2 Finally, I shall order the
Respondent to pay any contributions it has failed to make on
behalf of unit employees to fringe benefit funds as required
under its collective-bargaining agreement, if the Union re-
quests it to cancel a unilateral change in benefits and rein-
state the contractual fringe benefit fund payments instead,
and to make its employees whole by reimbursing them for
any other expenses ensuring from its failure to make such re-
quired contributions, with interest.3
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Ron Tirapelli Ford, Inc., Joliet, Illinois,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promising employees better benefits if they get rid of
the Union.
(b) Interrogating employees concerning their union activi-
ties.
(c) Soliciting employees by threats or promises to sign a
petition to get rid of the Union.
(d) Assisting employees in the preparation and circulation
of a petition to get rid of the Union.
(e) Threatening employees with discharge if they sup-
ported the Union.
(f) Creating the impression that employee union activities
are under surveillance.
(g) Promising any employee a better position with more
money if he signed a petition to get rid of the Union.
(h) Threatening any employee with the loss of the Compa-
ny’s good will and owner’s helpful association unless the
employee signed a petition to get rid of the Union.
(i) Withdrawing recognition from the Union as the exclu-
sive bargaining representative of its employees in the follow-
ing appropriate bargaining unit:
All full-time and regular part-time countermen and
parts men; shipping and receiving clerks; stockmen;
employees; performing towing, emergency service, and
minor repair work; pick up and delivery drivers; lubri-
cation employees; car polishers; undercoat rust preven-
tive employees; car washers; used car clean-up employ-
ees; watchmen and porters; and general helpers em-
ployed by the Employer at its 2000 West Jefferson
Street, Joliet, Illinois facility; but excluding office cleri-
581RON TIRAPELLI FORD
5 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
cal employees, professional employees, all other em-
ployees, guards, and supervisors as defined in the Act.
(j) Refusing to bargain over a new collective-bargaining
agreement with the Union as the exclusive bargaining rep-
resentative of the employees in the bargaining unit.
(k) Unilaterally changing or terminating any fringe benefit
plans contained in the collective-bargaining agreement with
the Union which was effective August 1986 to July 1989, or
unilaterally making any other changes in the terms and con-
ditions of employment for bargaining unit employees without
notifying or bargaining with the Union until an agreement or
impasse in such negotiations is reached.
(l) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize the Union as the exclusive bargaining rep-
resentative of its employees in the bargaining unit.
(b) On request, bargain with the Union as the exclusive
representative of the employees in the appropriate unit con-
cerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement.
(c) On request, rescind any changes in bargaining unit em-
ployees’ benefit plans and any other unilateral changes in the
terms and conditions of employment for bargaining unit em-
ployees it has made without notifying with the Union.
(d) Make its employees whole by reimbursing them for
any wages or benefits they may have lost as a result of its
unlawful unilateral changes, with interest, in the manner set
forth in the remedy section of this decision.
(e) If the Union requests it to cancel a unilateral change
in benefits and reinstate the contractual fringe benefit fund
payments instead, pay any contributions it has failed to make
on behalf of unit employees to fringe benefit funds as re-
quired under the collective-bargaining agreement and make
its employees whole by reimbursing them for any other ex-
penses ensuing from its failure to make such required con-
tributions, with interest, in the manner set forth in the rem-
edy section of this decision.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Post at its facilities in Joliet, Illinois, and at all other
locations where its employee handbook has been distributed
to its employees, copies of the attached notice marked ‘‘Ap-
pendix.’’5 Copies of the notice, on forms provided by the
Regional Director for Region 33, 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.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the representation petition
filed in Case 33–RM–294 be, and the same hereby is, dis-
missed and the results of the election held pursuant thereto
be, and they hereby are, nullified.
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 solicit you to repudiate your representatiion
by General Chauffeurs, Sales Drivers and He]pers Union
Local No. 179, an affiliate of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO.
WE WILL NOT interrogate you regarding your union sym-
pathies, activities.
WE WILL NOT promise you better benefits if you get rid
of the Union.
WE WILL NOT solicit you by threats or promises to sign
a petition to get rid of the Union.
WE WILL NOT unlawfully assist you in the preparation and
circulation of a petition to get rid of the Union.
WE WILL NOT threaten you with discharge if you support
the Union.
WE WILL NOT create the impression that we are keeping
watch over your union activities .
WE WILL NOT promise you a better position with more
money if you sign a petition to get rid of the Union.
WE WILL NOT threaten you with the loss of our good will
or helpful association if you do not sign a petition to get rid
of the Union.
WE WILL NOT refuse to recognize General Chauffeurs,
Sales Drivers and Helpers Union Local No. 179, an affiliate
of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO as the
exclusive bargaining representative of our employees in the
following appropriate unit:
All full-time and regular part-time countermen and
parts men; shipping and receiving clerks; stockmen;
employees performing towing, emergency service, and
minor repair work; pick up and delivery drivers; lubri-
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cation employees; car polishers; undercoat rust preven-
tive employees; car washers; used car clean-up employ-
ees; watchmen and porters; and general helpers em-
ployed by the Employer at its 2000 West Jefferson
Street, Joliet, Illinois facility; but excluding office cleri-
cal employees, professional employees, all other em-
ployees, guards, and supervisors as defined in the Act
and will not refuse to bargain with the Union for a new
contract.
WE WILL NOT unilaterally change or terminate any fringe
benefit plan contained in our contract with the Union, or the
terms or conditions of employment or bargaining unit em-
ployees without notifying the Union or bargaining with the
Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL recognize the Union as the exclusive bargaining
representative of our employees in the bargaining unit.
WE WILL, on request, bargain with the Union about the
terms and conditions of employment for our employees in
the bargaining unit and, if an understanding is reached, em-
body the understanding in the signed agreement.
WE WILL, on request, rescind any changes in bargaining
unit employees’ benefits plans and any other unilateral
change in the terms and conditions of employment for bar-
gaining unit employees we have made witholding notifying
bargaining with the Union.
WE WILL make our employees whole by reimbursing them
for any wages or benefits they may have lost as a result of
our unlawful unilateral changes, with interest.
WE WILL, if the Union requests us to cancel a unilateral
change in benefits and reinstate the contractual fringe benefit
fund payments instead, pay any contributions we have failed
to make on behalf of unit employees to fringe benefit funds
as required under our collective-bargaining agreement and
make our employees whole by reimbursing them for any
other expenses ensuing from our failure to make such re-
quired contributions, with interest.
RON TIRAPELLI FORD, INC.