S. G. Tilden, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1968

172 N.L.R.B. 752 (N.L.R.B. 1968)

752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. G. Tilden , Inc., Tilden Bayshore , Inc., and Tilden
Huntington , Inc. and General Automotive, Elec-
tronics, Synthetic and Specialty Products , Drivers,
Helpers and Warehousemen , Local 239 , Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Cases
29-CA-674, 29-CA-673, 29-CA-675, and
29-CA-745
June 28, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On October 19, 1967, Trial Examiner Sidney D.
Goldberg issued his Decision in the above-entitled
cases, finding that the Respondents had engaged in
and were engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that they
cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Counsel
and Respondent S. G. Tilden filed exceptions to the
Trial Examiner's Decision and supporting briefs,
and a request for oral argument.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
Respondent S. G. Tilden operated a chain of 13
automotive repair shops in New York, New Jersey,
and Connecticut. On August 30, 1965, S. G. Tilden
entered into a collective-bargaining contract with
the Union covering the employees in its New York
and New Jersey shops. The agreement was to ter-
minate on August 5, 1967, and provided in material
part that the Employer should make monthly con-
tributions to a union pension fund and that the
agreement should be binding on successors.
On June 30, 1966, Tilden, for reasons which the
Trial Examiner found were economically justified,
sold to Huntington and Bayshore, corporations
newly formed by the former managers of Tilden's
Huntington and Bayshore branches, respectively,
the equipment, fixtures, and inventories of their
respective shops for $45,000, and at the same time
entered into franchise agreements with them for the
continued operation of these shops under the Til-
den name .2 Prior to the sale and franchise agree-
ments , the then managers of the Huntington and
Bayshore branches of Tilden offered their em-
ployees an opportunity to transfer to shops under
Tilden ownership. On July 6, Tilden advised the
Union of the sale and franchise agreements and in
another letter also advised the Union that it was
making no pension fund payments for the em-
ployees who had elected to continue in service with
the new corporations. Similarly, in response to the
Union's demands of Huntington and Bayshore for
contributions to its pension fund on behalf of the
employees who had elected to go with Huntington
and Bayshore, the latter replied in effect that they
considered themselves new enterprises, that they
had not assumed Tilden's contract, and that their
employees did not wish to be represented by the
Union.
The complaint alleged that Respondents violated
Section 8(a)(5) by failing to recognize the Union as
the collective-bargaining representative of the em-
ployees at Huntington and Bayshore and by failing
to honor the provisions of the existing contract.
On the foregoing facts, the Trial Examiner, not
relying on any specific provisions, but on the sales
and franchise agreements as a whole, found that
Bayshore and Huntington were joint employers
with, and successors of, Tilden with respect to the
branches of the same name and bound by Tilden's
'The Respondents ' request for oral argument before the Board is hereby
denied as the record and briefs adequately present the issues and positions
of the parties
' The sale agreements between S G Tilden and Huntington and
Bayshore, respectively , provided in material part for the sale by S G Til-
den of the fixtures , equipment , and inventories to each of them for the sum
of $45,000, payable in monthly installments , with interest Bayshore and
Huntington were not required to make any cash payment at the inception
of the agreement and had 15 years to pay the full purchase price Tilden
retains title to the property until the full amount is paid It was further pro-
vided that upon the cancellation of the accompanying franchise agreement,
the entire unpaid balance becomes due and payable The franchise agree-
ments provided in material part that Huntington and Bayshore were to be
bound by certain "special " prices set by Tilden and by Tilden's servicing
guarantees , and were not to advertise their services or sublet any part of the
premises without Tilden 's consent They were required to observe Tilden's
pricing policies , public relations, road testing, building maintenance, and
housekeeping standards , and the appearance of the premises and signs
were likewise to be regulated by Tilden The agreements further provide
that Huntington and Bayshore are to remain open 6 days per week, from 8
a in to 5 30 p in , and that the employees be dressed in prescribed
uniforms It is also provided that at Huntington's and Bayshore 's request,
Tilden will screen , test, and indoctrinate new employees , and no former
employee of Tilden or another franchisee may be employed by Huntington
or Bayshore for at least 2 years without the consent of Tilden or the respec-
tive franchisee
172 NLRB No. 83
S. G. TILDEN, INC. 753
contract with the Union. He concluded that
Bayshore and Huntington took over the property
and continued to carry on the same business which
they had previously conducted as branches of Til-
den with knowledge of the provisions of Tilden's
contract with the Union; that they used the same
name, premises, and equipment to supply the same
products to the public with the same manager and
practically the same personnel; and that in addition
they gave no notice to the public of any change in
operation or management.
Respondents in general contended before the
Board that the Trial Examiner erred in finding a
joint employer relationship as well as successorship.
In addition, Respondents Bayshore and Huntington
based their attack upon the alleged inconsistency of
the Union's position in regard to its contentions of
joint employership. They argued that the Union
consented to the fragmentation of the unit and al-
leged that in July 1967 the Union signed a contract
with an association of all Tilden franchisees exclud-
ing Bayshore and Huntington. They moved that the
record be reopened to admit evidence in support of
these allegations. Their argument was substantially
that the Union, by contracting as it did with the
other franchisees, without notice to Bayshore or
Huntington and without attempting to include
them, thereby impliedly conceded that the
franchised branches were independent entities.
In the light of Huntington's and Bayshore's al-
legations, to which no answering brief was sub-
mitted, the Board, on March 29, 1968, issued its
order to show cause why, in view of the effect of
these allegations on the unit and jurisdictional is-
sues involved herein, the complaint should not be
dismissed. In its response, the Union conceded that
it had in fact signed a new agreement with an as-
sociation of 11 Tilden franchisees which did not in-
clude Huntington and Bayshore. The General
Counsel, in his response, contended that the
Union's signing of the aforesaid contract should
have no effect on the Trial Examiner's findings or
on the obligations of the Respondents.
On the record as a whole, including the responses
of all parties to the Order To Show Cause, we are
of the opinion that the record does not support the
Trial Examiner's finding that the sale and franchis-
ing of Respondent Tilden's Bayshore and Hunting-
ton branches resulted in a joint employer relation-
ship. The franchise and sales agreements upon
which the Trial Examiner relies are insufficient in
the circumstances herein to constitute Respondents
joint employers.3 While there are many elements of
the business relationship that are regulated by the
franchise agreement, we find no clear indication,
nor can we so infer from the provisions of the said
agreement itself, that Respondent Tilden intended
to, or in fact did, exercise direct control over the
labor relations of Bayshore and Huntington. The
requirement that the franchisees observe the pric-
ing and housekeeping standards set by Tilden was
merely to keep the quality and goodwill of the Til-
den name from being eroded, and the requirement
that the employees wear prescribed uniforms
amounts to nothing more than an implementation
of Tilden's advertising policy. The offer by Tilden
to train prospective employees of the franchisees
was an offer of help by Tilden and not the exercise
of any authority over Respondents Bayshore's and
Huntington's hiring policies. Nor can the specifica-
tion that the shops remain open from 8 a.m. to 5:30
p.m., 6 days per week be viewed as a significant
element in control of labor relations. The provision
in no way prescribes the hours that a particular em-
ployee must work, and along with many other
provisions, its purpose is only to eliminate unfair
competition among franchisees. Moreover, we
agree with Respondents' contention that the Union,
by the acts of contracting with I I franchisees, not
including Bayshore and Huntington, has impliedly
conceded that the franchised branches were inde-
pendent entities. Accordingly, and as neither
Bayshore nor Huntington reach the $500,000 ju-
risdictional requirement for the Board to take ju-
risdiction,' we shall dismiss the complaint.-'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed.
3 The Southland Corporation, dlbla Speedee 7-Eleven, 170 NLRB 1332
4 For the period July I to December 31, 1966, Bayshore 's gross revenues
were $46,432 and Huntington 's amounted to $63,000
s In view of our conclusion that the Board should not assert jurisdiction
in this proceeding, it is unnecessary to consider the Trial Examiner's find-
ing that Respondents Huntington and Bayshore violated Section 8(a)( I) by
soliciting the resignation of their employees from the Union
TRIAL EXAMINER 'S DECISION
SIDNEY D. GOLDBERG, Trial Examiner: The prin-
cipal question in this case is whether Respondent,
S. G. Tilden, Inc., by converting two branches of its
chain of automotive repair shops into franchised
operations, terminated its obligation to bargain,
concerning the employees involved, with the labor
organization representing its employees.
The consolidated amended complaint in these
proceedings,' pursuant to Section 10(c) of the Na-
' Issued October 26, 1966, on charges filed July 27 and September 30,
1966
354-126 O-LT - 73 - pt. 1 - 49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Labor Relations Act, as amended (herein
called the Act), alleges that S. G. Tilden, Inc.
(herein called Tilden), notwithstanding its sale-and-
franchise agreements with the former managers of
the two branches and the corporations they created
(herein called Bayshore and Huntington), con-
tinues to be the joint employer, with the franchise
holders, of the branch employees, and that all three
Respondents continue to be bound by Tilden's col-
lective-bargaining contract with General Automo-
tive, Electronics, Synthetics and Specialty Products,
Drivers, Helpers and Warehousemen, Local 239,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
(herein called the Union). It alleges that Respon-
dents have refused to bargain with the Union in
violation of Section 8(a)(5) of the Act and that
they have otherwise interfered with their em-
ployees' rights of self-organization in violation of
Section 8(a)(1) thereof.
Respondents answered, admitting the creation of
the franchise arrangements but denying any viola-
tions of the Act. A trial of the issues so raised was
held before me on March 1 and 2, 1967, at
Brooklyn, New York, at which all parties were
represented, afforded an opportunity to adduce
evidence, cross-examine witnesses , and argue upon
the facts and the law. Briefs filed by the General
Counsel, by counsel for Respondent Tilden, and by
counsel for Respondents Bayshore and Huntington
have been considered.
For the reasons hereinafter set forth in detail, I
find that the franchise arrangements between Til-
den and Bayshore, and between Tilden and
Huntington were insufficient to remove the em-
ployees of those branches from the coverage of the
collective-bargaining contract between Tilden and
the Union and that, with respect to such employees,
Respondents Tilden and Bayshore, for the Bay
Shore branch, and Respondents Tilden and
Huntington, for the Huntington branch, are joint
employers of the employees at these branches. Ac-
cordingly, their refusal to recognize the Union as
the collective-bargaining representative of these
employees violated Section 8(a)(5) and their in-
volvement of these employees in the arrangement
constituted interference with the employees' rights
in violation of Section 8(a)(1) of the Act
Upon the entire record herein, and the demeanor
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED
Respondent S. G. Tilden, Inc., a New York cor-
poration, operates a chain of automotive repair
shops in New York, New Jersey, and Connecticut.
It admits that its annual gross revenues exceed
$500,000. I find that it is an employer engaged in
commerce and that it would effectuate the pur-
poses of the Act to exercise jurisdiction over it.
On June 30, 1966, Respondent Bayshore, a New
York corporation, purchased from Tilden the
equipment, fixtures, and inventory at the Bay Shore
branch of the Tilden chain and entered into a
franchise agreement with Tilden for its operation.
Its gross revenues, for the period July 1 to
December 31, 1966, amounted to $46,442.
On June 30, 1966, Respondent Huntington, a
New York corporation, purchased from Tilden the
equipment, fixtures, and inventory at the Hunting-
ton branch of the Tilden chain and entered into a
franchise agreement with Tilden for its operation.
Its gross revenues, for the period July 1 to
December 31, 1966, amounted to $63,000.
In view of the finding herein that Bayshore and
Huntington are joint employers, with Tilden, of the
employees at these branches, it is not necessary to
make findings or conclusions concerning the
separate status of Bayshore and Huntington as em-
ployers engaged in commerce.
II. THE LABOR ORGANIZATION
The Union is a labor organization.
III. THE UNFAIR LABOR PRACTICES
A. Background and Chronology
The material facts concerning the relationship
between the Respondents are not seriously in
dispute.
The employees of the Tilden chain of automobile
repair centers were organized by the Union in
1965. On August 30, 1965, after the Board's certifi-
cation of the Union and a short strike, Tilden en-
tered into a collective-bargaining contract with the
Union which,2 under its terms, may be renegotiated
or terminated on August 5, 1967.3 Article XXX of
this contract reads as follows:
SUCCESSORS AND ASSIGNS
This agreement shall be binding upon the
parties hereto, their successors and assigns,
and all branch establishments of the Employer
which may hereafter be opened during the
term of this agreement, provided that said
branch establishment is within a county where
the Employer has an establishment. If for any
reason the Employer shall change its name or
legal status, or the Union shall change its af-
filiation, it is agreed that such a change shall in
no manner modify or affect the binding obliga-
tions of this agreement.
P The unit set forth in the Board's certification consisted of stated em-
ployees in Tilden's New York shops The employees covered by the con-
tract are the same employees in Tilden's New York and New Jersey shops
' Termination of the contract would have no effect on the principal issue
herein , viz, the extent of Respondents' obligation to bargain with the
Union
S. G. TILDEN, INC. 755
Both John B. Stoner and Joseph Montefusco,
who were the managers of the Bay Shore and
Huntington branches, respectively, prior to June
30, and who were, immediately thereafter, the pres-
idents and sole stockholders of the franchised cor-
porations, admitted knowledge of this provision of
the contract.
As of June 30, 1966, Tilden entered into con-
tracts with Respondents Bayshore and Huntington,
corporations newly formed by the managers of the
Bay Shore and Huntington branches, whereby Til-
den sold to each of them the fixtures, equipment,
and inventories of their respective branches for the
sum of $45,000, payable in monthly installments,
with interest , beginning September 15, 1966. At the
same time , Bayshore and Huntington entered into
franchise agreements, as "Associates," with Tilden
for the continued operation of these shops as parts
of the Tilden chain.
Prior to making this change in legal relationship
with Tilden, John B. Stoner, the manager at Bay
Shore, and Joseph Montefusco, the manager at
Huntington , informed the employees under them of
the impending change and told them that they
could, if they wished, be transferred to other
branches under Tilden's direct operation. William
Gilliam, the foreman at Bay Shore, and John Doyle,
the foreman at Huntington, transferred to other
shops, leaving two employees at each of these
branches.
On July 6, Tilden, in making its monthly re-
mittance to the Union's pension fund, wrote it that
employees Clarence Arsenault, Douglas Ketcham
and Jean Esquerre 4 at Bay Shore, and Joseph
DiLascio and Jack Nelson at Huntington, had
"resigned as of June 30th, 1966." On the same
date, Tilden wrote a letter to the Union stating that,
on June 30, it had sold "certain of its assets" at the
Bay Shore and Huntington locations to Tilden-
Bayshore and to Tilden-Huntington, respectively,
and that it was "no longer operating these facili-
ties."
The Union replied, on July 13, by writing letters
to Bayshore and Huntington , calling their attention
to the fact that the collective- bargaining contract
between Tilden and the Union "is binding upon
their successors and assigns," so that, therefore, it
was applicable to the purchasers, and requesting re-
mittance of the welfare and pension fund payments
due under the contract. On July 15, the Union
wrote a letter to Tilden, stating that the change
came as a "complete surprise" to the Union; that
good-faith bargaining would have required con-
sultation with the Union prior to the change and
that, to protect the employees and the Union, it was
requesting copies of the pertinent documents. The
record contains nothing to show that Tilden com-
plied with the Union's requests or that it sub-
sequently communicated with the Union on this
subject .5
On July 15, Huntington wrote the Union,
acknowledging receipt of its letter dated July 136
and stating that it could not complete the forms
therein enclosed because it had "been informed by
the men involved, that they no longer feel to be af-
filiated with Local Union 239." It also "advised"
the Union that "Tilden Huntington Inc., is a newly
formed corporation and does not assume prior col-
lective-bargaining agreements made by S. G. Til-
den, Inc."
Stoner, the former manager at Bay Shore,
testified that "it could have been" in the third week
of July when he sent his undated letter to the Union
stating that Tilden-Bayshore had taken over that
branch as of July 1. At the same time, Ketcham and
Arsenault, the two remaining employees at the Bay
Shore branch, signed letters resigning from the
Union.
There is nothing in the record to show that either
of the Respondents thereafter made the contract
payments into the pension or welfare funds of the
Union on behalf of the employees at the Bay Shore
and Huntington branches.
On July 18, DiLascio and Nelson, the two
remaining employees at Huntington, signed identi-
cal letters to the Union, each stating that he was
resigning as of that date; that he was "now a
stockholder of Tilden Huntington Inc., and very
satisfied with present conditions."
By agreements bearing the date July 8,' Stoner
and Montefusco, each of whom owned all the stock
in their newly formed corporations, sold shares to
the men working at their shops.8 The stated price is
$200 per share, to be paid at the rate of $1 per
week for each share, beginning September 1, 1966.
Montefusco testified, however, that it was expected
that payment for the stock would come out of the
"kitty" in which the men at the shop put their tips
and other miscellaneous incomes; that the "kitty"
normally amounted to about $150 per year for each
man and that they usually divided it up at Christ-
mas time.
' This is the only mention of this man in the record
S Both Max Sherman , president of the Union, and Leonard L Berliner,
counsel for Tilden, testified that they had many conversations , both before
and after June 30, in which the franchise arrangement was mentioned, but
their testimony is in wide disagreement concerning what was said Since the
complaint does not allege that Tilden had committed an unfair labor prac-
tice by entering into the sale -and-franchise agreements without bargaining,
it is unnecessary to resolve this issue
"The record contains only one letter from the Union dated July 13 and
that one was addressed to Bayshore However , the president of the Union
testified that he wrote a similar letter to Huntington
' Montefusco testified that they were executed "approximately in the
second or third week in July " Their probable date of execution is
discussed below
" Stoner sold five shares to Ketcham and five shares to Arsenault Mon-
tefusco sold one share to Nelson with an option to purchase four more and
sold three shares to DiLascio with an option to purchase two more
They sometimes bought a wrecked car, repaired it in their spare time,
and sold it at a profit
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Contentions of the Parties and the Issues
The General Counsel contends that Tilden, not-
withstanding the sale-and-franchise agreements,
continued to be the joint employer, with Bayshore
and Huntington , respectively, of the employees at
those branches and that their refusal to continue to
recognize the Union as the representative of those
employees constitutes a refusal to bargain, on the
part of all respondents, which is violative of Section
8(a)(5) of the Act.
Tilden contends that the change in its relation-
ship to the Bay Shore and Huntington branches was
dictated by economic necessity; that the Union was
notified of the impending change and did not ob-
ject; that the branch employees were offered trans-
fers to Tilden-retained branches and that it has con-
tinued to recognize the Union for the employees in
the retained branches. It also contends that, after
the sale of these branches to Bayshore and
Huntington, its control over the branch operators
was minimal and insufficient to make it the em-
ployer of the branch employees, either directly or
jointly with the purchasing companies, and that
therefore it cannot be directed to honor the con-
tract in conjunction with them.10
Since the complaint herein does not allege that
Tilden's refusal to bargain is based upon a failure to
notify the Union concerning its intention to
franchise the Bay Shore and Huntington branches
or a refusal to discuss the proposed franchising with
it, Tilden's contentions, that it notified the Union of
the proposed change in its relationship with these
branches and that the Union did not object, are ir-
relevant.
The issues posed by Tilden, therefore, are: (i)
whether the control it retained over Bayshore and
Huntington through its franchise agreement-both
documentary and in operation-is sufficient to
make it a joint employer with them and subject,
with respect to their employees, to the contract
with the Union ," and (ii ) whether the conduct of
Respondents toward the Union and the branch em-
ployees constituted unfair labor practices which it
can be required to remedy.
Bayshore and Huntington rely on Tilden's brief
and, in addition, contend that they did not induce
the branch employees to resign from the Union.
Nowhere in Tilden's brief, however, is there any ar-
gument that Bayshore and Huntington are not the
"successors" of Tilden at these branches. Ac-
cordingly, the adoption, by Bayshore and Hunting-
ton, of Tilden's brief on the questions of relation-
ship and bargaining leaves this point unbriefed and
unargued with respect to these Respondents. This
question is , nevertheless, an issue herein.
Whether Respondents interfered with the branch
employees' rights of self-organization is the remain-
ing issue herein.12
C. Discussion and Findings
1. The status of Bayshore and Huntington
The General Counsel does not contend, and
there is nothing in the record to show, that the
transfer of these branches to the Bayshore and
Huntington corporations was a device to destroy
the bargaining unit or that it was not dictated by
sound business reasons. On the other hand, neither
Bayshore nor Huntington has contended, in their
brief or by argument, that they are not the succes-
sors of Tilden, at the respective branches, under the
terms of the collective-bargaining contract with the
Union. Both Stoner and Montefusco testified that
they had actual notice of the existence of the con-
tract and it provides, in so many words, that it shall
be binding upon successors of Tilden.
It is clear and undisputed on this record that
Bayshore and Huntington, at these branches, took
over the property and continued to carry on
precisely the same business which they had thereto-
fore conducted as branches of Tilden-using the
same name, premises, and equipment to supply the
same products and services to the public with the
same manager and practically the same personnel.
There is nothing in the record concerning any
notice to the public of a change in operation or
management; every indication is to the contrary.
Regardless of the statements by Stoner and Mon-
tefusco, that they had not taken over the union
contract when they acquired these branches, there
is no question but that, although one owner
replaced another, the business entity remained the
same and I so find.13 As a matter of law, therefore,
Bayshore and Huntington became the successors of
Tilden with respect to these branches and bound by
Tilden's contract with the Union.14 Their refusal to
recognize the Union as the collective-bargaining
representative of their employees constituted an
unfair labor practice violative of Section 8(a)(5)
and (1) of the Act. 15
10 Although the unit covered by the contract is not identical with that
certified by the Board , Tilden conceded that the contract unit ( which is
similar to the one alleged in the complaint ), without the Bay Shore and
Huntington branches , is an appropriate one for the purposes of collective
bargaining
11 If they are such joint employers , they would be required to bargain as
such , notwithstanding the expiration of the contract
12 Although some evidence was taken concerning an arbitration proceed-
ing brought by the Union to recover welfare payments due under the con-
tract , no issue involving it was presented by the pleadings or briefed by
counsel
13 1 also find that the unit set forth in the complaint, which includes these
two branches, is an appropriate one for the purposes of collective bargain-
ing
14 John Wiley & Sons, Inc v David Livingston, 376 U S 543
15 Overnice Transportation Company, Inc , 157 NLRB 1185, enfd 372
F 2d 765 (C A 4, 1967), Delhi-Taylor Refining Division, Hess Oil and
Chemical Corporation, 167 NLRB 115, Hackney Iron & Steel Co , 167
NLRB 613, Valleydale Packers, Inc , of Bristol, 162 NLRB 1486, Quaker
Tool & Die Inc , 162 NLRB 1307, Johnson Ready Mix Co, 142 NLRB 437
2. The status of Tilden
S. G. TILDEN, INC. 757
General Counsel , viz, that no money passed with
There is, as stated above, no claim in this
proceeding that Tilden's transfer of its Bay Shore
and Huntington branches to Respondents Bayshore
and Huntington, respectively, was for other than
legitimate business reasons or that either of these
Respondents constitutes a "disguised continuation"
of Tilden at these locations. Accordingly, any lia-
bility of Tilden herein must rest upon a relationship
with these successor employers sufficiently close to
justify a finding that they are joint employers of the
branch employees within the meaning of decisions
in the field of labor-management relations.'6
Although there is, fortunately, no factual
dispute[' in the evidence upon which this finding is
to be made, its evaluation without consideration of
its history would be improper: the interests of the
Union and its members, for whose protection the
Act was passed, forbids it. Moreover, both the
change in relationship and the mechanics by which
it was accomplished, originated with and were car-
ried out exclusively19 by Tilden. This corporation
must recognize, therefore, that any resulting am-
biguities should properly be resolved against it.
a. The sale and security agreements
The General Counsel argues that Tilden
"relinquished nothing" by operation of the sale and
security agreement because it retained title to the
property until payment of the purchase price shall
have been completed, and that this will not occur
until the end of 15 years, when the franchise agree-
ment also terminates. This argument overlooks the
fact that the sales agreement, although it provides
that Tilden shall retain title, also provides that Til-
den shall have a "security interest" in the property
"under the Uniform Commercial Code."19 Section
1-201, par. 37, of the Code, in turn, provides that a
contractual provision for the retention of title by a
seller shall be limited in its effect to a reservation of
a "security interest"; i.e., to secure payment. Ac-
cordingly, there is no substance to this argument.
The only element which I find notable in this
otherwise routine document is its provision that the
entire unpaid balance shall become due and pay-
able upon the cancellation of the franchise agree-
ment. This connection between the two documents,
however, confirms the status of the franchise agree-
ment-and the conduct of the parties under it-as
the more reliable determinant of the relationship of
Tilden to its franchised branch operations. The
other factors in the sales agreement noted by the
19 That their relationship for other purposes may be quite different is ob-
vious See Boire v Greyhound Corp , 376 US 473,481
11 All of the relevant documents are in evidence and uncontroverted
testimony concerning the manner of operation under them was given by
both the branch managers and Tilden 's chief officer
19 The only relevant transactions in the record which are not shown to
have originated with Tilden are the sales of stock by the branch managers
to the employees
the inception of the new arrangement and that the
first monthly payment would not become due until
the end of 2-1/2 months, do not have, in my
opinion, sufficient weight to cast significant light on
the relationship created by these transactions.
b. The franchise agreements
The General Counsel' s argument that "The
niagra [sic] of documentary evidence and
testimony clearly and unequivocally demonstrate
that Respondent Tilden, Inc., reserved control over
the operations and labor policies of the employees
in Bayshore and Huntington" must be regarded as
somewhat of an overstatement.
The franchise agreement, which is necessarily a
document of considerable length and detail, places
extensive limitations upon the freedom of the
operator (called, in the agreement, "Associate") to
conduct business and it imposes liabilities that
could reduce his income to the vanishing point. For
example: although the operator is required to pay
Tilden, as the license fee, 6 percent of his gross
sales20 and up to 1 percent additional for advertis-
ing, he is nevertheless required to abide by the
prices advertised by Tilden as "specials" and to ac-
cept, for servicing guarantees issued by Tilden or
other Tilden-franchised operators, the amounts set
by Tilden. Moreover, the operator may not place
any other advertising without Tilden's consent, may
not sublet any part of his premises, and may not
conduct any other business there without Tilden's
consent but is nevertheless required to observe Til-
den-prescribed standards in pricing policies, public
relations, road-testing, building maintenance, and
housekeeping.
In addition, the operator is required to purchase
from Tilden all the parts and supplies which Tilden
carries'21 and to purchase other parts and supplies
subject to Tilden's approval as to quality. The ex-
terior appearance of the branches, with respect to
both general appearance and distinguishing signs,
are subject to Tilden's approval and the operator
agrees to make any changes in them which Tilden
may require. The branches are required to be open
for business at least 6 days each week and the hours
of 8 a.m. to 5:30 p.m., Monday through Saturday,
are prescribed. No person formerly employed by
Tilden or another Tilden-franchised operator may
be employed by the operator for a period of 2 years
after such employment without the consent of Til-
den or the other operator.
The agreement requires that all branch em-
19 N Y Laws 1962, ch 553, effective September 27, 1964
20 Seven percent where the sales are on Tilden charge accounts and eight
percent on Tilden " budget " accounts
" Tilden is one of a group of commonly owned and interrelated corpora-
tions in the automotive supply business
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees "shall be dressed in uniforms ...
established by Tilden" and also provides that:
Prior to the commencement of operations and
anytime thereafter TILDEN will screen and
test the prospective employees of the AS-
SOCIATE at its request and will indoctrinate
the key personnel of the ASSOCIATE, all
without cost to the ASSOCIATE, but without
any liability on the part of TILDEN in respect
of such activities . TILDEN will advise the AS-
SOCIATE of its schedules for such screening,
testing and indoctrination. After the com-
mencement of operations, the ASSOCIATE
agrees to attend, and cause its employees to at-
tend, upon reasonable advance notice and at
reasonable times, instruction periods which
TILDEN may conduct for the training in TIL-
DEN methods and techniques.
Tilden retains the right, in its supervision of the
franchise, to inspect the operator's premises or
records and to confer with branch personnel, and it
may terminate the franchise relationship should the
operator default in performing any obligation under
it, should the operator encounter financial difficulty
or should the operator's annual gross sales drop
below $60,000. Limitations are placed by Tilden on
the right of the operator to assign any interest in
the legal entity holding the franchise without the
consent of Tilden (except in a few situations based
upon family relationships or death of an interest
holder) but the operator agrees that the franchise
"shall inure to the benefit of the successors and as-
signs of Tilden." Upon the termination of the
agreement , by expiration or otherwise, the operator
is required to sell to Tilden, at cost, any of its
equipment and stock which Tilden may choose to
purchase.
The testimony of Stoner and Montefusco shows
that the employees continued to do the same work,
while wearing the same uniforms, which they had
done when Tilden operated these branches. Work-
men's compensation and other insurance , formerly
supplied by Tilden was, after June 30, obtained by
Bayshore and Huntington instead. There were other
changes in money handling, recordkeeping, and
similar services reflecting the shift of ordinary em-
ployer status from Tilden to Bayshore and Hunting-
ton, but the Tilden system for obtaining parts and
material for the operation of these branches ap-
pears to have been continued without noticeable al-
teration.
The General Counsel, in support of his conten-
tion that Tilden and the branch operators are joint
employers of the employees at these branches, re-
lies principally upon the Board's decision in Thrif-
town, Inc., d/b/a Value Village, 161 NLRB 603, and
cites, among other cases, Jewel Tea Co. Inc., et al.,
162 NLRB 508, and K-Mart Division of S. S. Kresge
Company, 161 NLRB 1127. These three cases in-
volve unit determinations in multiple-employer
establishments engaged in the sale of merchandise
under a single roof, the entire group being
presented to the public as a single retail department
store through uniformity of packaging, consolida-
tion of billing, etc., and in which the lessor or licen-
sor retained various controls over the leesee's em-
ployees through the prescription of hours, conduct,
dress, suitability for employment, and similar condi-
tions. These were held to be joint employers, with
their lessees, for the purposes of collective bargain-
ing concerning the employees of the lessees, on the
basis of the physical, financial, and managerial rela-
tionships between them, which placed the lessor "in
a position to influence the labor relations policies
of the lessee."
Another line of cases, in which the Board has
found that several employers constituted a joint
employer for collective-bargaining purposes, in-
volves taxicab owners-of single cabs or fleets of
them-who combine under a single name, or a few
names, to serve the public through the use of com-
mon facilities for dispatching and general control
over drivers' qualifications and conduct.22
A third type of relationship justifying a finding of
joint employer status was that involved in The
Greyhound Corporation (Southern Greyhound Lines
Division ) and Floors, Inc. of Florida, 153 NLRB
1488, enfd. 368 F.2d 778 (C.A. 5, 1966), in which
the bus company contracted out the porter and
janitorial tasks in its terminals, retaining however, a
large measure of control over the performance of
these functions and, at least implicitly, holding the
employees of the contractor out to the public as its
own. The Board determined that, under the circum-
stances, both Greyhound and the contractor were
joint employers of these employees and that a
refusal to bargain with the union certified as the
collective-bargaining representative for them was
violative of Section 8(a)(5) of the Act.
While there is not, in this case, a common place
of business with the attendant opportunity of
presenting to the public the appearance of a single
enterprise, as there was in Thriftown, supra, there is
nevertheless, in the franchise relationship between
Tilden and the branch operators, both a reservation
of substantial managerial control in Tilden and a
concerted effort by all parties to the arrangement
to continue to present each of the branches to the
public as integral parts of the Tilden chain.
Moreover, there is here-as there was not in Thrif-
town -a bargaining history with the Union, includ-
ing a collective-bargaining contract specifically
made binding upon the successors of the parties.
As stated in The Greyhound case supra, by both
the Supreme Court23 and the court of appeals24'
"whether Greyhound possessed sufficient indicia of
22 Checker Cab Company and its Members, 141 NLRB 583, 153 NLRB
651, enfd 367 F 2d 692 (C A 6), cert denied 385 U S 1008, Supreme,
Victory and Deluxe Cab Companies, 160 NLRB 140
" 376 U S 473,481
24 368 F 2d 778, 781
S. G. TILDEN, INC. 759
control to be an 'employer' is essentially a factual
issue." Upon the above-described facts concerning
the relationship between Tilden and the branch
operators, as well as the successorship provision in
Tilden's contract with the Union, I find that Tilden
is the joint employer, for collective-bargaining pur-
poses, with each of the branch operators, of the
employees at those branches, and that, as far as Til-
den is concerned, the unit set forth in the contract
continues to be the unit for which it is obligated to
bargain, notwithstanding the conversion of these
branches to franchised operations. To permit Til-
den to evade this responsibility-both contractual
and statutory-by a self-dictated change of rela-
tionship that really changed little or nothing would
not contribute to industrial stability.
The brief of Respondent Tilden, which is adopted
by Respondents Bayshore and Huntington, argues
that its "only duty upon the sale of two of its shops
was to bargain with the union." If the word "upon"
is used here, as the context indicates, to refer to
bargaining prior to the sale, this question is not an
issue in this case and no findings of fact or conclu-
sions of law are required on it. Moreover, it can
have no applicability to Bayshore or Huntington
since prior to the date of sale they neither existed
nor had any relationship to the Union. Insofar as
the period after June 30 is concerned, the duty of
Bayshore and Huntington has been set forth above.
Respondent Tilden, in addition to arguing several
propositions not within the issues herein, relies
strongly on Site Oil Company of Missouri v.
N.L.R.B., 319 F.2d 86 (C.A. 8, 1963), in which the
court denied enforcement of a Board Order on the
ground that Site Oil Company was not the em-
ployer of the employees involved. I find this deci-
sion partially applicable to this case but, in its ef-
fect, the reverse of that argued by Respondents.
The evidentiary facts in that case-"virtually un-
disputed," as the court notes-were that Site Oil
Company, on the same day that it completed the
construction of a gasoline service station, leased it
for operation to a man named Vaughn, who was
then one of its supervisory employees, with the un-
derstanding that he could return to Site's employ
when and if he discontinued operating the station;
and that "the station started to pump gas" the fol-
lowing day.25
Shortly thereafter, four of the five attendants em-
ployed at the station designated a union as their
bargaining representative and the union sent a de-
mand for contract negotiation, directed to an offi-
cial of Site Oil at the address of the station. On the
day following receipt of the demand, Vaughn told
the Site Oil official that he no longer wished to
operate the station and suggested that it be leased
to a man who had expressed interest. The next day,
Site Oil negotiated a new lease with the suggested
party: it was signed and operation commenced
under it 1 day later.
After considering these facts and the details of
the operating procedure prescribed by Site, the
Board held that "the leasees were not independent
contractors but were employees of Site so that the
individuals under their control were also Site's em-
ployees": in other words, that Site had been the ac-
tual operator of the station throughout this period.
The court, after stating that "there are many
businesses in which management may make a choice
as to the manner in which the business shall be
conducted, and that choice will be respected,"
pointed out that Site had chosen to operate that
service station by leasing it to an independent con-
tractor.
There is a decisive difference between the facts
in this case and those in Site Oil which makes the
court's rationale in that decision inapplicable here.
The statement that "management may make a
choice as to the manner in which its business shall
be conducted" was made with respect to a situation
in which management had done nothing which
restricted its freedom of choice. The service station
had just been built: Site Oil could choose to operate
the station itself or it could elect to do so through
an independent operator: it chose an arrangement
which, it believed, made the operator independent.
The Board, however, held that the facts showed
that the operation was really not that of an inde-
pendent leasee but that of Site Oil itself. The court,
declining to enforce the Board's Order, simply held
that the facts did not justify the Board's conclu-
sion.26
Here, on the contrary, Tilden had originally
made its choice, i.e., to operate the branches
directly, and they were being operated on that basis
when intervening rights, both contractual and statu-
tory, became vested in the employees and their col-
lective-bargaining representative. Tilden, therefore,
when it franchised these two branches, did not have
the freedom of decision, noted by the court, which
Site possessed. On the contrary, having established
these branches as part of its own organization and
having entered into a contract with the Union
covering the employees there, Tilden has placed it-
self in a position where its status must continue to
be that of an employer of the branch employees, al-
beit a joint employer with Bayshore and Hunting-
ton, so long as these franchised operators continue
as "successors" of Tilden or, differently stated, so
long as these branches continue to constitute a con-
tinuation of the "employing industry."27
Finally, Tilden argues that it could not comply
25 Site Oil Company of Missouri, 137 NLRB 1274, 1283 that the limitations on its power to make business decisions were so severe
26 Conversely , in Howard Johnson , Inc , of New Jersey, 135 NLRB 1260 , as to make it no more than the alter ego of the Authority, a government cor-
enfd 317 F 2d I (C A 3, 1963), where the New Jersey Turnpike Authors - poration not subject to the Act , was rejected
ty, from the opening of that road in 1951 , operated the restaurants through 27 Hackney Iron & Steel Co , 167 NLRB 613.
a contract with the Howard Johnson chain , the operating company's claim
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a bargaining and posting order in this case, "in
view of its relinquishing all rights with respect to
labor relations at Bay Shore and Huntington .... "28
In N.L . R.B. v. The Greyhound Corporation, 368
F.2d 778 (C.A. 5, 1966), the court enforced the
Board 's Order directed at both Greyhound and its
contractor , notwithstanding that the district court,
in an earlier aspect of the same case , had written:29
It is impossible to comprehend how an em-
ployer could bargain in good faith about wages
with employees who are not paid by said em-
ployer and over whom the said employer can-
not exercise the power of hiring or firing.
Furthermore , the change in relationship between
Tilden and these branches was effected , voluntarily
and deliberately , by Tilden for its economic ad-
vantage . Tilden placed Bayshore and Huntington in
the position where they could and did repudiate the
contract obligation which Tilden had agreed would
be binding upon its successors . Accordingly, any
problems that may arise from Tilden 's obligation to
continue to observe the contract and to bargain
jointly with its franchisees must be cast into that
same balance of economic advantage.
3. Interference, restraint, and coercion
a. Bay Shore
John B. Stoner, the manager of the Bay Shore
branch, testified that in June, prior to his execution
of the sales and franchise agreements, he told
the employees there that there was a deal pending
• hereby he might purchase and operate the branch.
He discussed their continued working at that
branch and told them that arrangements could be
made to transfer them to another Tilden branch if
they desired, Gilliam, the working foreman,
transferred to another branch but Ketcham and
Arsenault said they would remain at Bay Shore.
Upon taking over the branch, Stoner testified, he
gave Ketcham an unsolicited raise in pay.
Stoner had difficulty in fixing the time and
sequence of the relevant actions and conversations
with the employees subsequent to Bayshore's taking
over the branch .31 From his testimony, and that of
Ketcham and Arsenault, I find that it was about
July 14, when he received the letter from the
Union, that Stoner told them that, in taking over
the branch, he had not taken over the union con-
tract: that there was no reason why they had to
remain members of the Union and that, "if they
didn't want to belong, they could resign ." At about
the same time , Stoner also told them that he would
provide them with health and hospitalization in-
surance. Both Ketcham and Arsenault said that
they would quit the Union, whereupon Stoner had
his wife write out letters of resignation which they
signed and sent to the Union.31 Furthermore, it was
about the same time when, according to Ketcham's
testimony, Stoner said that part owners could not
be members of the Union and asked him whether
he wanted "to buy stock and become a part
owner." Ketcham testified that he agreed and sub-
sequently signed a document whereby he purchased
5 of the 100 shares owned by Stoner for $1,000,
payable at the rate of $5 per week, with the profits
of the branch to be divided in proportion to the
stock ownership. Arsenault also testified that
Stoner talked with him about his purchasing
Bayshore stock but that he believed it was a "cou-
ple of months" after Bayshore took over. The
agreement whereby Arsenault also purchased 5
shares from Stoner is identical with that of
Ketcham and they are both dated July 8. On the
foregoing testimony, however, I find that they were
executed no earlier than July 14.
Stoner claimed that he did not solicit the em-
ployees' resignations from the Union because they
had never been in favor of the Union and had
joined only to keep their jobs. He conceded, how-
ever, that he "might have" asked Ketcham "if he
wanted the union, now that I have the franchise?"
and that he told Ketcham that, by purchasing stock,
he became a "part owner" and that part owners
need not be members of the Union. Both Ketcham
and Arsenault were evasive witnesses but Ar-
senault, when asked who first mentioned his getting
out of the Union, answered, "Maybe Bernie did,"32
and Ketcham's denial that anyone "induced" him
to resign from the Union came in the form of a sim-
ple "no" to a leading question by Bayshore's coun-
sel.
Based upon all of the testimony by and concern-
ing the Bay Shore employees, and upon the
demeanor of the witnesses while testifying, I find
19 The final words in this phrase "with the full agreement of the Union"
are a simple ipse dixit , since this was not an issue in the case
19 Greyhound Corporation v Botre, 205 F Supp 686 , 689 (D C Fla ),
affd per curtam on opinion below , 309 F 2d 397 (C A 5), reversed 376
U S 473.
90 When asked whether several matters had been discussed in a single
conversation , Stoner stated that the discussion of these matters "could
have been in the process of a whole day's conversation " Accordingly,
although reference is made herein to several subjects of conversation in a
somewhat logical order , it cannot be found that the discussion between
Stoner and the branch employees proceeded in precisely the same logical
sequence Since, however, the three men spent practically all day in a rela-
tively small establishment and their discussions probably covered all of the
several subjects at practically the same time, findings concerning state-
ments by Stoner, related to specific acts and documents , are justified
" These letters are undated but Stoner testified that his wife wrote them
out at the same time as she wrote the undated letter to the Union stating
that Tilden no longer operated the Bay Shore branch This letter, in turn,
was in answer to the Union 's letter of July 13 requesting remittance of
union dues and welfare payments covering the branch employees Stoner
testified that these letters were written and sent during the "first or second
week in July" or , possibly, ,the third week . Since the Union's letter was writ-
ten on July 13, the Wednesday of the second full week in July , Stoner's
letter answering it could not have been written before that time Moreover,
Huntington 's similar letter to the Union is dated the 15th and the union
resignations of the employees of that branch were dated the 18th Ac-
cordingly , I find that the letters of Stoner , Arsenault, and Ketcham were all
written not earlier than July 14
12 Arsenault identified "Bernie" as Stoner
S. G. TILDEN, INC. 761
that, about July 14 or 15, Stoner suggested to
Ketcham and Arsenault that, since he would no
longer recognize the Union as the representative of
the employees at the Bay Shore branch, their
obligation to maintain their union membership
would no longer exist; that he told them that
Bayshore would provide them with medical and
hospital insurance in place of that provided by the
Union; and that at the same time he suggested that
they purchase stock in Bayshore to become "part
owners," ineligible for membership in the Union.
This conduct by Stoner, as president of Bayshore
and managing agent of Tilden at that branch,33 con-
stituted interference with the employees' rights of
self-organization and an unfair labor practice viola-
tive of Section 8(a)(I) of the Act.
b. Huntington
Joseph Montefusco, manager of the Huntington
branch, also testified that he talked with the em-
ployees there in June, telling them of the possibility
that he might take over the branch on a franchise
basis. He told them of their option to stay at the
branch or transfer to another Tilden station and
Doyle, the working foreman, chose to transfer.
After July 1, Montefusco testified, he told the
two remaining employees, Joseph DiLascio and
Jack Nelson, that he had purchased the branch but
had done it without money because he had none;
that to keep the place going would require "a full
effort" by everyone in the shop; and that, to make
everyone-feel that he had "a part of_the company"
so that he would "work a little harder for it," he
would issue each of them a portion of the stock of
the Company. The stock-purchase agreements
described above were prepared and executed.
Montefusco also told the men, according to
DiLascio, that "everything would be the same" as it
had been under Tilden and that Huntington would
supply medical and hospitalization insurance in
place of that formerly provided by the Union.
Montefusco testified that he neither threatened
the employees nor made any promises to get them
to resign from the Union; that he gave them "the
privilage of remaining in the union"; but that
DiLascio and Nelson resigned from it of their own
free will. DiLascio tried hard, in his testimony, to
support this claim. Montefusco, however, admitted
having told DiLascio that it would "save some com-
plications later" if he resigned from the Union.
DiLascio, moreover, did not dispute the testimony
of Union Representative Beller that, when he spoke
with him on July 13, DiLascio said nothing about
an intention to resign from the Union but simply
said that he had a "good deal" with Montefusco
and that he did't want to get "on the bad side" of
either the Union or. Montefusco.
Neither Montefusco nor DiLascio impressed me
as a frank and dependable witness and each of
them, by their evasive answers and their demeanor
while testifying, convinced me that their effort was
to sustain Respondents' position rather than to give
responsive answers to the questions. DiLascio, who
had been active in the Union's organizing campaign
and was the shop steward at the Huntington branch
before June 30, was particularly evasive. He in-
sisted that he was unable to remember the details of
any of the conversations he had with Montefusco
about resigning from the Union, even after reading
the pretrial statement which he admitted having
read and signed, but he was definite in stating, in
response to leading questions by Huntington's
counsel, that Montefusco had not offered him
anything to resign. He also stated, more than once,
that it was he who said that it would "save compli-
cations later" if he resigned from the Union,
although Montefusco had admitted that the expres-
sion was his.
Based upon the testimony of these witnesses, and
their demeanor while testifying, I find that, about
July 14 or 15, Montefusco advised DiLascio that it
would be to his advantage to resign from the Union
and that the offer to permit the employees to buy
stock in Huntington, made at the same time, was
also a device to get them to resign from the Union.
These activities by Montefusco, as president of
Huntington and managing agent of Tilden at that
branch, constituted interference with the em-
ployees' rights and an unfair labor practice violative
of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of Respondents set forth in section
III, occurring in connection with Respondents'
operations described in section I, have a close and
substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents are joint em-
ployers as set forth above and that they have en-
gaged in certain unfair labor practices, I shall
recommend that they cease and desist therefrom
and that they take certain affirmative action to ef-
fectuate the policies of the Act.
Having found that Respondents have failed and
refused to bargain with the Union as the collective-
bargaining representative of the employees at the
Bay Shore and Huntington branches, I shall recom-
mend that they do so. In addition, I shall recom-
mend that the employees at these branches be
" Having found that Tilden and Bayshore are joint employers of the em-
ployees at that branch , I find that Stoner is the managing agent of Tilden
there
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made whole for any loss they may have suffered by
reason of Respondents' failure to accord them the
same benefits accorded the employees at the other
Tilden branches,34 by payment to them of a sum of
money equal to that which each of them would nor-
mally have earned as wages, to be computed in the
manner prescribed by the Board in F. W. Wool-
worth Company, 90 NLRB 289, and with interest at
the rate of 6 percent per annum as prescribed by
the Board in Isis Plumbing & Heating Co., 138
NLRB 716.
In addition to the possibility that the wage rates
of the branch employees were lowered, Respon-
dents have also unilaterally reduced the compensa-
tion of these employees by failing to make, in ac-
cordance with the contract, the welfare and pen-
sion payments on their behalf. Accordingly, I shall
recommend that they make these payments for the
period commencing July 1, 1966, under the August
30, 1965, to August 4, 1967, contract,35 and for the
period subsequent thereto in accordance with the
contract, if any, which was or is in effect between
Tilden and the Union covering the unit.36
Upon the foregoing findings of fact and upon the
entire record herein, I reach the following:
CONCLUSIONS OF LAW
1. S. G. Tilden, Inc., together with Tilden
Bayshore, Inc., for the employees at the Bay Shore
branch, and together with Tilden Huntington, Inc.,
for the employees at the Huntington branch, con-
stitute an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. General Automotive, Electronics, Synthetic
and Specialty Products, Drivers, Helpers and
Warehousemen, Local 239, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time employees in the New York and
New Jersey establishments of S. G. Tilden , Inc., in-
cluding those at Bay Shore and Huntington, New
York, including mechanics, stock clerks, delivery
men, power brake rebuilders; excluding clerical
employees, sales employees (other than mechanics
and specialists), professional employees, part-time
employees who work on Saturdays or holidays,
part-time employees who work 10 hours or less a
week, Monday through Friday, and employees
hired only for the summer months or during the
weeks following Easter and Christmas, also the sons
and daughters of officers, and guards and super-
visors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, the above-men-
tioned labor organization has been the exclusive
representative of the employees of S. G. Tilden,
Inc., in the unit described above, for the purpose of
collective bargaining with respect to wages, hours
of work, and other terms and conditions of employ-
ment.
5. By refusing to recognize the above labor or-
ganization as the collective-bargaining representa-
tive for, and by unilaterally changing the wage
rates, hours of labor, and terms and conditions of
employment of, the Bay Shore and Huntington em-
ployees in the aforesaid unit, S. G. Tilden, Inc., Til-
den Bayshore, Inc., and Tilden Huntington, Inc.,
have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a)(5) of
the Act.
6. By suggesting to and urging the employees at
the Bay Shore and Huntington branches to cease
remaining members of the above labor organiza-
tion, S. G. Tilden, Inc., Tilden Bayshore, Inc., and
Tilden Huntington , Inc., have interfered with,
restrained, and coerced the employees in the exer-
cise of rights guaranteed them in the Act and have
committed unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
7. By offering and obtaining hospital and medi-
cal insurance covering the employees at the Bay
Shore and Huntington branches and by offering to
sell, and selling , to said employees shares of the
capital stock of Tilden Bayshore, Inc., and Tilden
Huntington, Inc., to induce them to cease remain-
ing members of the above labor organization, S. G.
Tilden, Inc., Tilden Bayshore Inc., and Tilden
Huntington Inc., have interfered with, restrained,
and coerced their employees in the exercise of
rights guaranteed in the Act and have committed
unfair labor practices within the meaning of Section
8(a)(I) of the Act.
8. The above-described unfair labor practices
are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publica-
tion. ]
'd See Overnite Transportation Company Inc , 157 NLRB 1185, enfd 372
F 2d 765 (C A 4, 1967)
w George E Light Boat Storage , Inc , 153 NLRB 1209, enfd 373 F 2d
762 (C A 5, 1967)
'8Ibid Any such contract would be one which has been made by the
parties and covers the unit which properly includes these employees