The Goodyear Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Mar 25, 1975

217 N.L.R.B. 73 (N.L.R.B. 1975)

THE GOODYEAR TIRE & RUBBER COMPANY 73
The Goodyear Tire & Rubber Company and Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No. 93. Case
20-CA-8945
March 25, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On July 11, 1974, Administrative Law Judge Her-
man Corenman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a brief, and the General Counsel filed limited cross-
exceptions to the Administrative Law Judge's Decision
together with a supporting brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in the light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
The Administrative Law Judge found, and we agree,
that Respondent violated Section 8(a)(1) of the Act on
October 1, 1973, by threatening its employees with
discharge if they continued their support of and mem-
bership in the Union, and on October 15, 1973, by
coercively interrogating its employees with regard to
their union membership and support. We also agree
that a bargaining impasse had then occurred, which
justified Respondent's unilateral institution of its eco-
nomic package, and that the impasse was broken by the
Union's January 4, 1974, offer to meet and bargain with
Respondent. We further agree that Respondent unlaw-
fully withdrew recognition from the Union on and after
January 24, 1974, thereby violating Section 8(a)(5) of
the Act. We do not agree, however, with the Adminis-
trative Law Judge's findings that on October 15, 1973,
Respondent unlawfully withdrew recognition from the
Union, unlawfully bypassed the Union and bargained
individually with its employees, and also utilized the
impasse to undermine the Union's status as bargaining
representative and as a pretext to withdraw recognition
from the Union.
The record shows that Respondent is a successor to
Bill Deane, Inc., with respect to Deane's San Jose and
Cupertino, California, stores, that it did not assume
Deane's collective-bargaining agreement with the
Union, and that a bona fide impasse between Respond-
ent and the' Union existed prior and subsequent to Oc-
tober 1, 1973, when Respondent committed the afore-
saiid 8(a)(1) violations. On October 1, 1973, Cupertino
Store Manager Pyeatt engaged in a conversation with
store employees Sonderman and Tyran wherein, ac-
cording to Sonderman's credited testimony, Pyeatt in-
formed them, inter aliq that Respondent thereafter
"would no longer recognize the union's contract," and
later, on October 15, 1973, after being told by his dis-
trict office that Sonderman and Tyran would not be
discharged because of their continued union support,
Pyeatt further stated to those employees that "the
terms of the contract would no longer be honored until
[Respondent's dispute with the Union] was settled."
Tyran's version of the conversation is that Pyeatt told
them that thereafter, Respondent "no longer would
recognize the union." The Administrative Law Judge
failed to resolve this crucial conflicting testimony, and
relied on Tyran's testimony only in finding that Re-
spondent then withdrew recognition from the Union
and so "advis[ed] [the] employees of that fact." In these
circumstances, we cannot find that such a fact has been
established.
Nor can we find that Respondent's October 15, 1973,
coercive interrogation of and unlawful threats to the
employees to the effect that they could either "go with
the union or stay with [Respondent]" shows that Re-
spondent "bargain[ed] individually and coercively with
the employees," or that that statement evidences Re-
spondent's "bad faith in bypassing the union" in order
to engage in such "bargaining." The statement in itself
does not constitute individual bargaining in the com-
monly accepted sense, despite its unlawful character.
Respondent's unlawful solicitation of its employees'
views, therefore, cannot be construed as a bypassing of
the Union in favor of individual bargaining.)
Accordingly, since there was no withdrawal of
recognition on October 15, 1973, Respondent could not
then have utilized the impasse action to undermine the
Union's representative status or as a pretext to with-
draw recognition from it.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, The Goodyear
Tire & Rubber Company, San Jose and Cupertino,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:,
I While we do not condone Respondent's unlawful conduct, we note that,
subsequent to August 23, 1973, and despite Respondent's repeated offers to
bargain, the Union refused even to meet with Respondent until the Union's
January 24, 1974, offer to do so, basically because of the Union's adamant,
but erroneous, insistence from the time Respondent took over the store in
July 1973 that Respondent was bound by its predecessor's bargaining agree-
ment
217 NLRB No. 10
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Interrogating employees with respect to, and
threatening to discharge them because of, their union
support and membership.
(b) Unlawfully refusing to recognize and bargain
with the Union as the employees' exclusive representa-
tive.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith
with International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge No.
93, as the exclusive representative of its employees and,
if an understanding is reached, embody such under-
standing in a signed written agreement.
(b) Post at its facilities at San Jose and Cupertino,
California, copies of the attached notice marked
"Appendix. ,2 Copies of said notice, on forms pro-
vided by the Regional Director for Region 20, after
being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify, the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
MEMBER FANNING, concurring and dissenting in part:
I agree with the majority that the Respondent vi-
olated Section 8(a)(5) and (1) of the Act by withdraw-
ing recognition from the Union in January 1974.
I would also find, in agreement with the Administra-
tive Law Judge, that Respondent had previously with-
drawn recognition in October 1973. Employees Sond-
erman and Tyran testified that on October 1 and again
on October 15 they had conversations with Pyeatt dur-
ing which the latter threatened them with discharge if
they insisted on having the Union in the shop. Tyran
also testified that Pyeatt told him and Sonderman that
Respondent had decided that it would no longer recog-
nize the Union. The testimony of both employees was
credited- and relied on by the Administrative Law
Judge. In my opinion, there is no conflict between Ty-
ran's testimony and that of Sonderman.
2 In the event that 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 Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
I would affirm the Administrative Law Judge's Deci-
sion in its entirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED by ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity
to present evidence and state their positions, an Ad-
ministrative Law Judge of the National Labor Rela-
tions Board has found that we have violated the Na-
tional Labor Relations Act, and has ordered us to post
this notice.
WE WILL NOT interrogate employees in a manner
violative of the provisions of Section 8(a)(1) of the
Act concerning their union membership, support,
interests, or sympathies.
WE WILL NOT threaten to discharge employees if
they remain loyal to the union and wish to be
represented by the Union.
WE WILL upon request bargain with Interna-
tional Association of Machinists and-Aerospace
Workers, AFL-CIO, District Lodge No. 93, as
the collective-bargaining representative of the
auto mechanics in our Cupertino and San Jose
stores, with respect to wages, hours, and working
conditions and, if agreement is reached, we will
reduce it to writing and sign it.
WE WILL NOT in any other like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to
form, join, or assist International Association of
Machinists and Aerospace Workers, AFL-CIO,
District Lodge No. 93, or any other labor organi-
zation, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
THE GOODYEAR TIRE & RUBBER
COMPANY
DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Administrative Law Judge: Upon a
charge filed on February 12, 1974, by International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO, Dis-
trict Lodge 93, herein called the Union, a complaint issued
against The Goodyear Tire and Rubber Company, herein
called Goodyear or the Respondent, on April 10, 1974, alleg-
ing violations of Section 8(a)(1) and (5) of the National Labor
THE GOODYEAR TIRE & RUBBER COMPANY 75
Relations Act, as amended , herein called the Act. Respon-
dent's answer denied that it had engaged in the alleged unfair
labor practices . This matter was tried before me at San Fran-
cisco, California, on May 16 , 1974. All parties appeared and
were afforded full opportunity to introduce evidence and tes-
timony and to-examine and cross -examine witnesses , to make
oral argument on the record , and to file briefs.
Upon the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, and upon careful
consideration of briefs filed by the counsel for the General
Counsel and by the Respondent , I make the following:
FINDINGS -OF FACT
I THE BUSINESS OF THE RESPONDENT
The pleadings establish, and I find, that Respondent is an
Ohio corporation engaged in the manufacture of rubber tires
and other related products, and has been engaged in the retail
sale of tires and other related products at various facilities
located throughout the United States, including facilities at
San Jose and Cupertino, California. During the past year, in
the course and conduct of its business operations, Respon-
dent received revenues in excess of $500,000 and purchased
and received goods and supplies valued in excess of $50,000
directly from suppliers located outside the State of California
for its facilities located within California. In the same period,
Respondent's California facilities sold goods and services
valued in excess of $50,000 directly to customers located
outside the State of California.
At all times material herein , Respondent has been an em-
ployer engaged in commerce and in operations affecting com-
merce within the meaning-of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Preliminary Statement
The Union for a number of years has had a collective-
bargaining agreement covering auto mechanics in a group of
Goodyear stores owned and operated by Bill Deane, Inc. On
May 5, 1973, Bill Deane, Inc., entered into an agreement to
sell two stores, one at San Jose and the other at Cupertino
located about 10 miles distant from the San Jose store, to the
Respondent. while the sale was in escrow, Goodyear jointly
operated the store with Deane. . T The sale was finalized on July
30, 1973, with the Respondent taking exclusive control and
ownership of the two stores. On May 9, 1973, the Respondent
notified the Union by letter of its interim operating agreement
with Bill Deane, Inc., of the Cupertino and San Jose stores
which would eventually result in the Respondent's complete
ownership and control of the two stores . In this same letter,
the Respondent notified the Union of its intention to continue
to recognize the Union as the bargaining agent for the auto
mechanics at these two stores and of its intention and desire
to enter negotiations with the Union covering hours , wages,
and working conditions . The May 9 letter promised the
Union that it would advise it of the date that the two stores
would be removed from escrow status and become the legal
property of the Respondent. The purchase of the two stores
was finalized on July 30, 1973. On that same date, the Re-
spondent notified the Union by letter that the Respondent
was now the legal owner of the two stores and that it was now
"desirous of the opportunity to mutually establish with your
union working conditions , hours, and wages for certain em-
ployees at the above-mentioned locations." The Respondent
closed the July 30 letter with a request that the Union "please
advise this office as to your availability for a meeting on the
above subject."
It appears without dispute, and I find, that the Respondent
continued in the same business operations at the two stores
with the same work force and became the successor to Bill
Deane, Inc., with the duty to bargain with the Union with
respect to the auto mechanics employed at the two
stores.` See N.L.R.B. v. -Burns International Security Ser-
vices, 406 U.S. 272 (1972); Howard Johnson Co., 198 NLRB
763 (1972); Emerald Maintenance, Inc. v. N.L.R.B., 464 F.2d
698 (C.A. 5, 1972).
During the escrow period from May 5 to July 30, 1973, the
mechanics were paid at the wage rate specified in the Bill
Deane collective -bargaining agreement and the contractual
fringe benefits were paid to the Santa Clara County Automo-
tive Trades Welfare Fund. After July 30, 1973, the Respond-
ent continued to pay the contractual wage rate.2
Under date of August 8, 1973, the Union replied to the
Respondent 's letter of July 30 , 1973, pointing out its position
that the collective -bargaining agreement with Bill Deane,
Inc., was binding on the Respondent as the successor to Bill
Deane, Inc., pursuant to a "successor clause" in the
agreement .3 Union Business Representative Clinton Miller,
who wrote the August 8 letter, notified the Respondent that
he would be pleased to meet with Mr. Kruse, the Respon-
dent's assistant personnel manager, at his convenience to
discuss the agreement . Mr. Miller emphasized however, that
it was his position that "we do have an agreement."
Kruse and Miller met on August 23, 1973, at the union
office. Miller testified that he continued in his position that
the Union 's unexpired collective-bargaining agreement with
Bill Deane, Inc., was binding on Goodyear . Kruse, however,
contended that Goodyear was not bound by that agreement.
Kruse told Miller that the wages exceeded the Cost of Living
Council 's guidelines. Kruse also told Miller that Goodyear
1 Howard W. Sonderman and Mike Tyran were the two auto mechanics
employed at the Cupertino store and Mike Fox the lone auto mechanic
employed at the San Jose store when the Respondent took exclusive owner-
ship of these stores on July 30, 1973. Mike Tyran quit Goodyear in Decem-
ber 1973.
2 There is a dispute concerning the payment of the fringe benefit amounts
to the health and welfare trust fund. The store managers of the Cupertino
and San Jose stores assert that they did not authorize or make any payments
to the trust fund after July 30, but the trustees ' business records show that
the Cupertino store made payments to the trust fund for August , September,
and October 1973 for the benefit of its mechanics.
3 Sec. 16(b) of the agreement between the Union and Bill Deane, Inc.
provides as follows : "If this agreement is signed by members of a partner-
ship, it shall apply to them and each of them individually in the event of a
dissolution or termination of said partnership or in the event of a merger,
consolidation or other legal change whatsoever with respect to any em-
ployer, any obligations hereunder shall be binding on any assign , successor,
legal representative or lessee of such employer."
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
couldn't live with the overtime provisions in the agreement
providing for time and one-half and double time pay for
Saturday work, and Kruse pointed out that the overtime
provisions were not contained in other collective-bargaining
agreements in the area. Miller testified that he proposed an
alternative workweek from Tuesday through Saturday at a
straight time rate of pay. Miller also testified that Kruse
objected to the pending increase in the pension plan because
it would far exceed the 5-1/2 percent cost-of-living allowance
for the year. Miller testified that nothing else was discussed,
and Kruse made no counterproposals. The meeting ended
with the understanding between Kruse and Miller that Miller
was to consult with the involved mechanics to "see if there
was any change in their thinking and then respond." Miller
concedes that he maintained the same position that fall and
early winter, namely that Goodyear, as a successor, was
bound by the Union's agreement with Bill Deane, Inc.
Kruse testified that at the August 23 meeting, Miller took
the position that Goodyear was bound by the Bill Deane,
Inc., contract as successor. Kruse took the position that
Goodyear was not bound by the Bill Deane contract and that
it wished to negotiate the wages, hours, and working condi-
tions of the mechanics. Kruse pointed out to Miller that the
Union had a collective-bargaming agreement with Firestone
Tire and Rubber Company with a lesser pay scale than the
Bill Deane, Inc., contract. Kruse testified that Miller con-
cluded the meeting by stating that he would review Good-
year's position in regard to negotiating a new agreement
with the involved people and would advise Goodyear as to the
Union's position.
On August 30, 1973, Miller directed a letter to Kruse as
follows:
Regarding our meeting of August 23, 1973, I am still
convinced-that we have an agreement in full which is
effective until October 15, 1974.
When this agreement was signed with Bill Deane,
which was during the Phase I period, all agreements
negotiated between August 15, 1971 and November 15,
1971 were allowed to go into effect in their entirety.
Reference is made to Section 16, Successor Clause, of
this current agreement which makes it binding until the
October 15, 1974 date.
My position is that we do have a binding agreement
without breaking any cost-of-living phases.
Thanking you for your consideration, I remain
Under date of,September 5, 1973, Kruse replied to Miller's
August 30 letter, reiterating that Goodyear was willing to
recognize the Union as bargaining agent for the auto mechan-
ics, but maintaining that Goodyear was not bound by the Bill
Deane, Inc., contract. Kruse closed the letter with a request
that Miller advise him as to his availability for another nego-
tiating meeting for the purpose of "establishing wages, hours,
and working conditions" for the affected employees.
Subsequent to the Union's receipt of the September 5 letter
from Goodyear, it made no endeavor to meet again with
Goodyear until January 1974. In the meanwhile, Goodyear,
effective October 15, 1973, provided for the auto mechanics
its so called "wage compliance and economic benefit pack-
age" to replace the contractual wage and economic package.
Goodyear did not first advise the Union of its action. The
wage rate was not increased on October '15, as provided for
in the Bill Deane, Inc., contract. Goodyear's "economic bene-
fit package" involved a hospitalization program, a life insur-
ance program, a pension program, short-term disability,
long-term disability, sick leave, holiday, vacation, prescrip-
tion drugs, and major medical. Kruse conceded that it did not
advise the Union of Goodyear's action in effectuating its
"wage compliance and economic benefit package," taking the
position that there was no need to.
B. Goodyear's Conduct in Connection with its Economic
Package
Howard Sonderman and Mike Tyran, the two auto me-
chanics at the Cupertino, California, store testified in sub-
stance and credibly that on about October 1, 1973, Store
Manager Frank Pyeatt told them that beginning with Octo'.
ber 16, 1973, Goodyear would no longer recognize the union
contract. Sonderman credibly testified that Pyeatt told them
that 'they had a decision to make whether they wanted to go
with the Union or stay with Goodyear. Sonderman, with
substantial corroboration from Tyran, credibly testified that
they asked Pyeatt what would happen if they wanted to con-
tinue to work for Goodyear, but also to have a Union in the
shop, and that Pyeatt replied that the two of them would be
fired. Pyeatt went on to tell them that it didn't really matter
to him either way-whether there was a union in the shop or
not-that he had just been relating to them what had been
told him. The two were told by Pyeatt that he would have to
know their decision-whether they were going to go with the
Union or stay with Goodyear by October 16, 1973. Sonder-
man and Tyran told Pyeatt that they would like to have some
time to make their decision and they would let him know by
October 15.
Sonderman testified that on October 15, which was his day
off, he made a special trip to the store so that he and Mike
Tyran could give Pyeatt their decision together. Sonderman
testified credibly, with substantial corroboration from Tyran
that on this occasion, Frank Pyeatt asked him and Tyran "if
we had made our decision-and we said that indeed we had;
that we decided to stay with the Union. He then shook both
of our hands and told us it had been a pleasure working with
us-and we asked him if this meant that we were
fired-and he said, no, that he felt that by our
decision-we were quitting . We told him we were not quit-
ting and that if he wanted us to leave, he'd have to fire us.
He then assured us that this could be the case, but that he
would have to call the district office to get authorization to
do so." Sonderman credibly testified that Pyeatt then made
a phone call and came back and said the district office could
not give him an instant decision, but would let him know in
a few minutes. In 20 to 30 minutes, Pyeatt returned from the
office and told Sonderman and Tyran that the decision was
that they could continue to work for Goodyear, but that the
terms of the contract would no longer be honored.'
' Auto mechanic Tyran substantially corroborates Sonderman's tes-
tmiony concerning Pyeatt's October 15 conduct Tyran adds that when
Pyeatt called- Sonderman and him in near the end of September, he told
THE GOODYEAR TIRE & RUBBER COMPANY
Store Manager Pyeatt testified that having learned from
Mr. Kruse of the new benefit program on Friday, October 19,
1973, when Kruse came, to his store with San Jose Store
Manager Hansen , Pyeatt then met with auto mechanics
Sonderman and Tyran in the evening of that same day and
explained to them the new economic package that Goodyear
was instituting effective October 15, 1973, to replace the wage
and fringe benefits of the union contract.5 Pyeatt further
testified that he-told Sonderman and Tyran that he was in-
structed by the Company to go on a compliance basis, i.e.,
institute the Goodyear economic package to replace the eco-
nomic terms of the union contract. Pyeatt told the employees
that literature explaining the complete benefit package would
be received from Mr. Kruse's office the following week.
Pyeatt admitted he told the employees that they had a choice
of going Goodyear or going Union. Pyeatt testified that at the
Friday, October 19 meeting, the employees advised him they
would like till the following Monday to make a decision
which Pyeatt explained as follows:
Basically that the Goodyear Tire and Rubber Com-
pany could no longer negotiate with the Union and that
they would have to decide whether they wanted to com-
ply with the wages and hours that we had set forth with
the Company benefits or to go with the Union.
Taking into account all of Pyeatt's testimony as well as the
testimony of Sonderman and Tyran to the contrary, I must
discredit Pyeatt 's conclusionary testimony in answer to gen-
eral questions by Respondent's counsel that he never made a
statement to anyone that the Goodyear store would no longer
operate with a union; that he never made a statement to
anyone that they should withdraw their membership in or
support of the Union; and that he never made a statement to
anyone that they would be discharged if they did not with-
draw their membership in or support for the Union.
I fully credit the testimony of Sonderman and Tyran con-
cerning their conversations with Pyeatt which they place as
having occurred on or about October I and 15 and which
Pyeatt places as having occurred on October 19. It is clear
that they are referring to the same conversations. I find that
in the conversation between Pyeatt and Sonderman and
Tyran on or about October 1, 1973, Pyeatt threatened to
discharge Sonderman and Tyran if they chose to have a union
in the shop: I find that this threat amounted to the coercion
and restraint of employees in violation of Section 8(a)(1) of
the Act. I also find that in the conversation which Sonderman
and Tyran place on October 15, 1973, Pyeatt, by asking them
if they made a decision to stay with the Union and by indicat-
ing to them that their decision to remain with the Union was
equivalent to a decision to be discharged or to quit their
employment with Goodyear, thereby coercively interrogated
then with respect to their union membership and support
and threatened them with discharge for supporting the
them that Goodyear had decided that it would no longer recognize the
Union.
5 In granting the new fringe benefit package, Goodyear did not grant the
25-cents-per-hour wage increase which was effective October 15, 1973,
under the terms of the union contract. Goodyear also discontinued paying
overtime rate for Saturday work. With the institution of its own benefit
package, Goodyear discontinued making payments to the trust fund speci-
fied in the Union's contract with Bill Deane, Inc.
77
Union . I find that by such conduct the Respondent engaged
in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
C. The Refusal to Bargain
Although the Union took the adamant position till the end
of 1973 that Goodyear was bound by the Bill Deane, Inc.,
contract, under the successorship clause,' nevertheless, on
January 4, 1974, Union Business Representative Miller di-
rected the following letter to the attention of Mr. Kruse,
Goodyear's authorized representative.
This letter is in regard to the collective bargaining
agreement covering certain employees at your San Jose
and Cupertino stores which come under the jurisdiction
of District Lodge 93, I. A. M. & A. W.
Contrary to what our attorney has advised us and
because of the costs involved in pursuing this matter
through the courts, we are willing to establish working
conditions, hours and wages for the employees at these
two stores.
Please advise me as soon as possible as to your availa-
bility for meeting on the above subject.
Under date of January 24, 1974, Mr. Kruse directed a
letter to Mr. Miller replying as follows:
This letter is in response to your letter of January 4,
1974. At the time The Goodyear Tire & Rubber Com-
pany entered into escrow with Bill Deane, Inc. for the
purpose of becoming the rightful and legal owners of the
business located at 490 South First Street, San Jose,
California and 10980 Saratoga-Sunnyvale Road, Cuper-
tino, California, it advised you that it would recognize
your Union as the bargaining agent for certain em-
ployees in the above-stated locations. Also, advice was
again given at the close of the escrow period.
The Company did enter into negotiations with your
Union at that time for the purpose of establishing wages,
hours and working conditions for certain employees in
the above-stated locations. An impasse was reached in
those negotiations.
Since the impasse occurred, you have asked to negotiate
wages, hours and working conditions for certain em-
ployees in the above-stated locations. However, it now
appears that you no longer represent a majority of our
employees in either facility.
It is conceded by Mr. Kruse that Goodyear unilaterally
instituted changes in the wages, hours, and working condi-
tions effective October 15, 1973. Kruse testified that having
6 Thus, the Union's attorney, W. Robert Morgan, by a letter dated Octo-
ber 24, 1973, to Goodyear, pointed out his opinion that Goodyear was
bound by the Bill Deane, Inc., contract by reason of the successor clause
contained in that contract. And on December 10, 1973, Mr. Morgan
dropped a note to Goodyear's law department at Akron, Ohio, with an
enclosed copy of a California court decision which he hoped would convince
Goodyear that they were bound by the union contract with Bill Deane, Inc.
Goodyear made no reply to the December 10 letter and on January 14,
1974, Morgan requested a reply
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heard no response from the Union to his letter of September
5 expressing a willingness to negotiate, and faced with a
pending 25-cents-per-hour wage increase effective October
15, 1973, under the Bill Deane, Inc., contract with the Union,
he was faced with the position of either accepting all or part
of that contract or establishing conditions of employment on
his own. Accordingly, Kruse concedes he met with the store
managers on Friday, October19, 1973, reviewed with them
his decision, told the managers what the conditions of em-
ployment would be, and instructed them to meet with the
employees and explain the decision to them. In further expla-
nation of his reason for unilaterally instituting the Goodyear
economic package effective October 15, 1973, Kruse testified
that he came to the conclusion that Goodyear had no obliga-
tion to deal with the Union on October 15, 1973, when Good-
year was faced with a decision of whether to follow the wage
strictures of the existing agreement, or to establish Good-
year's own conditions. Kruse explained further that the rea-
son for this was that Goodyear had been completely unsuc-
cessful in negotiating with the Union, and the Union had
taken the adamant position that Goodyear had to accept the
Deane contract.
Kruse further conceded that Goodyear's "wage and com-
pliance package" was a "unilateral change"-and Goodyear
felt it no longer had any duty to deal with the Union because
an impasse had been reached and he had information one
employee had stated he did not wish to be represented by the
Union.'
Kruse testified that another reason for refusing to meet
with the Union in addition to the reasons set forth in his
January 24, 1974, letter to Union Representative
Miller-namely impasse and lack of union majority-was
that he had treated the Union's January 4, 1974, letter, stat-
ing the Union's willingness to bargain, as a request for recog-
nition, and he was waiting for the Union to file an election
petition with the Board. -
D. Analysis and Conclusionary Findings
It is not disputed, and I find, that Goodyear is the succes-
sor to Bill Deane, Inc., with respect to ownership and opera-
tion of the Cupertino and San Jose stores. It is clear and
undisputed that Goodyear as the successor to Bill Deane,
Inc., notified the mechanics and the Union that pending
negotiations, that wages and benefits would remain the same
and that nothing would change. It is especially clear and
undisputed that Goodyear, on May 9, 1973, shortly after it
entered into the agreement to purchase the San Jose and
Cupertino stores from Bill Deane, Inc., and again on July 30,
1973, when the sale to Goodyear was finalized, notified the
I Kruse testified that in mid-September 1973, Mr Denny Jones, assistant
district manager, retail, told him that one employee no longer wished to be
represented by the Union. Kruse testified that he did not talk to the em-
ployee in question Jones testified that in the month of September 1973,
there was a need for a tire man or mechanic at the San Jose store Jones
testified that he was in the San Jose store on September 6, 1973, and had
a conversation with Mike Fox, the mechanic at the San Jose store, and
inquired of Fox as to whether his brother was still available. Jones testified
that he explained to Fox the fact that the store was not union, that it was
"compliance" and would be covered by company benefits. Fox, according
to Jones' testimony, stated "that he lust as soon that he had a company
program "
Union of its desire to-negotiate its own agreement with the
Union to'replace the Bill Deane, Inc., agreement. I find that
Goodyear was on sound legal ground in announcing its desire
to negotiate an agreement to replace the Bill Deane, Inc.,
agreement with the Union. It is now well established that,
absent an agreement by the successor to"assume a collective-
bargaining agreement covering the affected employees, the
successor is not bound by its predecessor's contract with the
Union, but the successor must nevertheless recognize and
bargain in good faith with the Union with respect to the
wages, hours, and working conditions of the employees repre-
sented by the Union. N.L R.B. v. Burns International
Security Services, Inc., 406 U.S. 272 (1972); Anita Shops, Inc.,
d/b/a Arden's, 211 NLRB 501 (1974); Ranch-Way, Inc., 183
NLRB 1168 (1970); Spruce Up Corporation, 209 NLRB 194
(1974). Cf. Howard Johnson Co., Inc. v. Detroit Local Joint
Executive Board, Hotel & Restaurant Employees & Bartend-
ers International Union, AFL-CIO, 417 U.S. 249 (1974). It
developed, however, and I find that, from the time that Good-
year took exclusive ownership and control of the two stores
to January 4, 1974, the Union took the adamant position that
Goodyear was bound by the Bill Deane, Inc., agreement with .
the Union covering the auto mechanics employed at the two
stores it had purchased from Bill Deane, Inc. Consequently,
I find that as a result of the Union's adamant position, a
genuine impasse accrued justifying Goodyear's unilateral ac-
tion in instituting its own economic package effective October
15, 1973, covering wages and fringe benefits at the two stores.
In such a situation, the employer instituting such changes will
not ordinarily be held in violation of Section 8(a)(5) of the
Act. N.L.R.B. v. United Clay Mines, 219 F.2d 120 (C.A. 6,
1955); N.L.R.B. v. U.S. Sonics Corp., 312 F.2d 610 (C.A. 1,
1963); Almeida Bus Lines, Inc, 333 F.2d 729 (C.A. 1, 1964);
N.L.R.B. v. Intracoastal Terminal, Inc. and Louisiana Proc-
essing Company, Inc., 286 F.2d 954 (C.A. 5, 1961); Carnation
Company, 192 NLRB 237, 239 (1971); Empire Terminal
Warehouse Company, 151 NLRB 1359 (1965). However,
coincident with the institution of such changes, Goodyear
Store Manager Pyeatt approached unit employees directly
and informed them that Goodyear would no longer recognize
the Union and that the employees must make a decision as
to whether to go with the Union or stay with Goodyear, and
the employees were given to understand that any decision to
go with the Union would result in their loss of employment.
Mr. Pyeatt's conduct not only coerced and restrained em-
ployees in their Section 7 rights as hereinabove found, but
also evidenced Goodyear's bad faith in bypassing the Union
to bargain individually and coercively with the employees.
While impasse may suspend the duty to bargain, it is not carte
blanche for an employer to attempt to undermine a union's
status as bargaining representative and thus insure that there
will be no resumption of bargaining. It is well established that
the duty to bargain embraces the negative duty not to deal
with the employees, especially where the dealings with the
employees are calculated to undermine the collective-bar-
gaining representative. See, e.g., Medo Photo Supply Corp. v.
N.L.R.B., 321 U.S. 678 (1944). While the impasse created by
the Union's adamant insistence from July 1973 to January
1974 that the Bill Deane contract was binding on Goodyear
justified Goodyear's unilateral institution of its economic
wage and fringe benefit package, it did not justify Goodyear's
THE GOODYEAR TIRE & RUBBER COMPANY 79
withdrawal of recognition from the Union as collective-bar-
gaining representative in October 1973 as was done by Good-
year in this case.' Goodyear's withdrawal of recognition
was again clearly manifested in Kruse's January 24, 1974,
letter to Union Representative Miller, which closed with
these words: "However, it now appears that you no longer
represent a majority of our employees in either facility." In
view of Pyeatt's coercive and -restraining conduct vis-a-vis
employees Sonderman and Tyran in October 1973, hereina-
bove described, which was calculated to cause their with-
drawal from membership and support for the Union, Good-
year's conclusion that the Union no longer represented a
majority of its employees was -obviously in bad faith. More-
over, the record establishes without dispute that all three
employees in the unit, namely Sonderman, Tyran, and Fox
were at all times during their employment by Goodyear mem-
bers in the Union. Additionally, employee Michael Fox's
remark to Supervisor Jones, as testified by Jones, that he liked
Goodyear's fringe benefit package better than the Union's,
reportedly made to Supervisor Jones in September 1973 by
Fox, hardly justifies the conclusion that Fox had withdrawn
his membership in, or support for, the Union.' In sum, I
find that Goodyear utilized the impasse as a means to with-
draw recognition from the Union, and to attempt to under-
mine the Union as the collective-bargaining representative.
While an impasse may justify an employer's unilateral change
in economic benefits, it does not justify coercive direct dealing
with the employees to compel their alienation from the union,
nor does it justify withdrawal of recognition from the union
as was the case here. N.L.R.B. v. E. L. Dell, Jr., Trading as
WaycrossMachineShop, 283 F.2d 733 (C.A. 5, 1960); Sharon
Hats, Inc., supra; Kit Manufacturing Company, Inc, 138
NLRB 1290 (1962). 1 find, therefore, that by withdrawing
recognition from the Union on and after October 15, 1973,
and by refusing to meet, deal, and bargain with the Union on
and after January 24, 1974 , Goodyear has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent found to constitute unfair
labor practices as set forth in section III, above, occurring in
connection with the operations of the Respondent described
8 See, e.g., Boeing Airplane Company, etc, 80 NLRB 447, 454, Sharon
Hats, Inc., 127 NLRB 947, 956 (1960).
9 But in any event when this remark was reportedly made to Jones in
September 1973, there were three mechanics in the unit, two in the Cuper-
tino store , and one in the San Jose store
in section I, above, have a close , intimate, and substantial
relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent has refused to bargain col-
lectively in good faith with the Union as the exclusive repre-
sentative of its employees in an appropriate unit, I will recom-
mend that, upon request, the Respondent bargain collectively
with the Union concerning rates of pay, wages, hours, and
other terms and conditions of employment, and, if an under-
standing is reached, reduce it to writing and sign it.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAw
1. Respondent, The Goodyear Tire & Rubber Company, is
an employer engaged in commerce within the meaning of
Seciton 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating employees concerning their feelings
and support for the Union and by threatening their discharge
if continued their union membership or loyalty, the Respond-
ent coerced and restrained employees in the exercise of their
rights set forth in Section 7 of the Act; and the Respondent
thereby engaged in unfair labor- practices within the meaning
of Section 8(a)(1) of The Act.
4. The auto mechanics employed in the Respondent's
Cupertino and San Jose stores constitute a unit appropriate
for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
5. By withdrawing recognition from the Union on or about
October 15, 1973, as collective-bargaining representative and
advising employees of that fact, and by refusing to meet and
bargain with the Union at all times after January 24, 1974,
with respect to the wages, hours, and working conditions of
its auto mechanics in the Cupertino and San Jose Goodyear
stores, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and 8(a)(1) of the Act.
[Recommended Order omitted from publication]