Tom's Ford, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1980

253 N.L.R.B. 888 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tom's Ford, Inc. and Amalgamated Local Union No.
355. Cases 22-CA-9563 and 22-CA-9796
December 19, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On August 20, 1980, Administrative Law Judge
Raymond P. Green issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.'
Pursuant to the provisions of Set tion 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 light of the exceptions and brief
and has decided to affirm the rulings, findings, 2
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Tom's Ford,
Inc., Keyport, New Jersey, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order.
Res p mdeni has requestcd oral argument his request is herehy
denied as the recotrd, Respondent's exceptions, and the brief adequately
present the issues and the positions of the parties.
I lhe Administratile I a Judge foulld that Laswrenlce M Mctleffey is
all attrney who represents a neighboring automobile dealer called Abel-
son ()ldsmobile his findinlg was based onl uncontradicted testinloin
front ore of Respondent's witnesses. Respondent excepts to this finding
as iaccurate, aid includes with its brief an affidavit fronlt Mr Mclteffe
denying ally elatiionship with Abelson O(ldsnmobile. In vieu oif this ffida-
ilt, we do uot rely iii the Admir istrative I a Judge' findlling i his
rcgard Wc I te, ir any levent, ta McHeffey's relationship, if an '. wilh
Abelson ()ldsmobhiie is lt material to the issues il olved heretic
Further, while we agree with the Adminlistrative Las Judges finding
that Respondent violated Sec X8a)(5) and (1) of the Act by its actilons
against Union Business Agenl Leolnard Sofield we disavws as iiapposite
his reliance in t eit/lrx. Inc. Jbrrnerly known us (lobe A/burn. Inc, 204
N.LRH l80 (1 t)73
Respondent has alleged that the Administraltive Law Judge's resolu-
tionrs f redibility, findings if flact, arid cnclusionl of lav are he rsult
of bias After careful exantlilatiotl of the elltire recird, we are atisfied
that this allegation is withiout merit. There is n basis fr findin g that bias
and partiality existed merely hecause the Admilistrativ e lI. Jutly re-
solved impiortant factual connicts i favor of the General C(iunsel . mit
nesses A the Supremne Court stated in X.L.RB. s Pittsburgh Siills/ip
Companl 337 U S 65h, h59 (194t)), "[Flortal rejection of an opposcd view
canlnot if itself illptugil the integrity oir competence of a trier if act "
Furthernlore, it is the Hoard's established policy lnot I t) i crrule ai ad-
nituistrative law judge's resolutions with respect to credihility ules the
clear preponderance of all of the relevant evidenlce convinlce us that the
resolititms are incorrect Stund/ard 1),.' Wal Products, Inc ~1 N Rtt 544
(1950). efd 18X F 2d iht2 d (ir 1951). We have carefuilly examined
the record and find no basis for reversiig his findings
253 NLRB No. 125
DECISION
STATEMENI' OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge: This
case was heard before me on April 29, 1980. The charge
in Case 22-CA-9563 was filed by Amalgamated Local
Union No. 355 on October 29, 1979,' and a complaint
based on that charge was issued on December 20. The
charge in Case 22-CA-9796 was filed by the Union on
February 27, 1980, and on April 18, 1980, the Regional
Director for Region 22 of the National Labor Relations
Board issued an order consolidating cases, and first
amended complaint and notice of hearing. In substance,
the issues raised by the amended complaint are: (1)
Whether on October 24 Respondent interfered with the
Union's right to investigate and to process grievances on
behalf of the employees it represents by causing a union
business agent to be removed from Respondent's shop;
and (2) whether, since January 14, 1980, the Respondent
has refused to furnish to the Union certain information
regarding its employees.
Upon the entire record, including my observation of
the demeanor of the witnesses and after reviewing the
briefs filed by the parties, I make the following:
FINDINGS 01 F.scTI
I. JURISDICTION
It is conceded that Respondent is a New Jersey corpo-
ration located in Keyport, New Jersey, where it is en-
gaged in the sale anrd service of automobiles and related
products. It also is conceded that Respondent annually
derives gross revenues in excess of $500(X)00 and that it
receives goods valued in excess of $50,000 which are
transported to it directly from States other than the State
of New Jersey. Accordingly, I find that Respondent is
an employer engaged in commerce within the mealling
of Section 2(2), (6), and (7) of the Act.
II. Ti LABOR OR(;ANIZAlION IN:VOItI)
the complaint alleges, the answer admits, and I find
that the Union is a labor organization whithin the meaning
of Section 2(5) of the Act.
III. HE ALI.LEGES UNF-AIR LABOR PRAClICIS
A. Background
On September 15, 1976, a majority of Respondent's
employees at its Keyport facility, in a unit consisting of
all full-time and regular part-time service and parts de-
partment employees, but excluding all new and used car
salesmen, office clerical employees, professional employ-
ecs, guards and supervisors as defined in the Act, voted
in a secret-ballot election in Case 22-RC-6840 to desig-
nate the Union as their representative for the purposes of
collective bargaining with Respondent. Thereafter, the
Union was certified as the collective-hargailning repre-
sentative on November 11, 1977.
i Unless otherwise ildicated, all dates are in 1 979c
888
TOM'S FORD. INC
On November 16, 1977, the Union requested Respond-
ent to bargain with it, and, when the demand was re-
fused, the Union filed a charge against Respondent in
Case 22-CA-8072. On May 25, 1978, the Hoard issued a
Decision and Order (reported at 236 NLRB 424) requir-
ing Respondent to bargain collectively with the Union.
That Order was enforced by the Third Circuit Court of
Appeals on March 1, 1979.
In addition to the above, the Union filed an unfair
labor practice charge against Respondent in Case 22-
CA-7103 on July 28, 1976. In that case the Board, on
October 18, 1977, in a Decision and Order reported at
233 NLRB 23, affirmed the findings and conclusions of
an Administrative Law Judge, who held that Respondent
had interrogated employees in violation of Section
8(a)(1) of the Act and had discriminatorily discharged
three employees in violation of Section 8(a)(l) and (3) of
the Act. That decision also was enforced by the Third
Circuit Court of Appeals (582 F.2d 1276 (1978)), and on
February 21, 1979, the Supreme Court denied Respond-
ent's writ of certiorari (440 U.S. 910). It is noted that the
unlawful discharges in that case were caused by John
Stillings, Respondent's service manager, who is a major
participant in the instant case.
Following the decisions in the above cases, the Union
and the Respondent entered into contract negotiations
which resulted in the execution of a collective-bargainining
agreement which runs from July I, 1979, to June 30,
1980. This contract has a number of provisions which
are relevant to this proceeding in addition to a griev-
ance-arbitration clause These are as follows:
Article IV-Visitation
Official representatives of the Union shall be per-
mitted reasonable time to visit the Company's prem-
ises during the working hours. Such representatives
shall first report to the office of the Company and
he shall not interfere with the work of any employ-
ees and shall, at all times, comply with shop rules.
Article VII
Section I(a) The Company shall not discriminate
against any person because of his membership in the
Union.
Finally, by way of background, a petition to withdraw
union-shop authority was filed by Karl Helwig, the serv-
ice writer, on October 17, 1979, in Case 22-UD-194. On
the petition, the address of the Petitioner is given as care
of Hanlon, Dempsey, and McHeffey. McHeffey is an at-
torney who represents a neighboring auto dealer called
Abelson Oldsmobile.
B. The Operative Facts
In the autumn of 1979, two bargaining unit employees,
Steve Serpico and Edward Ostroff, who had previously
worked at Abelson Oldsmobile had recently been hired
as Class C mechanics. 2 In addition to their normal work,
they also were performing auto preparation work for Re-
spondent which essentially entailed cleaning cars prior to
sale. The evidence establishes that the auto preparation
work was done by them on weekends and evenings and
that this work in the past had, at times, been done by
other bargaining unit employees. It also appears from the
record that Serpico and Ostroff were being paid off the
books for such work which was done outside their
normal working hours. It further is noted that Serpico
never joined the Union despite the existence of a union-
security clause in the collective-bargaining agreement,
that Ostroff was vocally opposed to the Union, and that
both were part of a group of employees who were trying
to oust the Union as the collective-bargaining representa-
tive.3 In the latter regard, when asked what attorney
represented the men who did not want union representa-
tion, Ostroff named Mr. Hrebek, the attorney represent-
ing the company in this proceeding.
In any event, in early October, an oral complaint wNas
made to Lester Horowitz, the Union's president, by an
employee, Robert Elzer, to the effect that Serpico and
Ostroff were receiving all the overtime work despite the
fact that they were the most junior employees. As a
result of this complaint, Horowitz visited the shop in
mid-October and asked Ostroff if he was in fact receiv-
ing such overtime. Horowitz told Ostroff in this connec-
tion that the other employees were complaining about
this, and, according to Horowitz, Ostroff stated that he
did not have to answer any questions, that he did not
want the Union to represent him, and that. if the Union
was out, he would be making more money. Horowitz
testified that he then spoke with John Stillings, the serv-
ice manager, and told him that he had reports that two
junior people were getting substantial amounts of over-
time and that the union people were being discriminated
against. Horowitz stated that Stillings said that there was
no overtime and that no one was working overtime. Ac-
cording to Horowitz. he next ,ent to speak with Robert
Lyttle where he reiterated the oertime complaint, and
asked to be supplied with payroll records for a 3-month
period so that he could evaluate the merits of the com-
plaint. Horowitz testified that Lyttle stated that he
would ask his attorney, and that, if his attorney ap-
proved, he would send the records. In addition, there
was some discussion about the UD petition wherein
Lyttle told Horowitz that he had received the petition
which had not yet been received by the Union. Horo-
witz expressed some surprise and chagrin at this news.
With respect to the above, Lyttle testified that very
little overtime had been scheduled for that period of
time, and that he did not know how much overtime was
worked by Serpico and Ostroff. He also testified that,
when Horowitz told him that there was a problem con-
cerning favored treatment to some employees for over-
1 hre art three categories ofr mechancll working a Resprndetnt
These ate Class A, FH, and C mechanlics t h the Class C mechanics being
the least skilled and CIlass, A mechanlici hberig the iost skilled As Ai gen-
eral rule. mechanics ',ork their as ulip rom the C t lali ito tile A ',taiu
:' Thc eidence also estlablishes that Serplic is a personal friend of
Robert yttle. Respondent's general manager and ice president
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time assignments, he told Horowitz that he was not
aware of it. Although Lyttle testified that he did not
know who was involved as a result of Horowitz' state-
ment of the problem, he nevertheless conceded on cross-
examination that Horowitz told him that nonunion men
were getting the overtime, that such overtime was not
being offered to the union men, and that in October the
two people who were in fact receiving overtime work
were Serpico and Ostroff. Thus, knowing full well
which employees were in fact working overtime, both
Lyttle and Stillings were less than candid when the
former told Horowitz that he was not aware of such a
problem and when the latter told Horowitz that no one
was working overtime.
Following his visit to the shop, Horowitz instructed
Business Agent Leonard Sofield to go to the shop to fur-
ther investigate the overtime problem. Sofield visited the
shop on October 24 where he became involved an al-
tercation and was escorted off the shop floor by three
policemen called by the Company. Needless to say there
is a difference of opinion between the parties as to the
events causing the altercation.
Sofield testified that he arrived at the shop at or about
4 p.m. on October 24 and entered the shop after saying
hello to Stillings. He further testified that, after speaking
with Robert Elzer about the overtime question, Serpico
was pointed out to him. He stated that he approached
Serpico and asked if he was receiving overtime. Sofield
testified that, when Serpico conceded that he was, Lyttle
walked over, whereupon he (Sofield) told Lyttle that he
was there to investigate a grievance that Serpico and Os-
troff were receiving overtime which was not being of-
fered to more senior employees. According to Sofield,
Lyttle stated that the two men were working as inde-
pendent contractors, whereupon he (Sofield) asked Ser-
pico if this was true and if he was reporting his earnings
to the Internal Revenue Service. Sofield stated that at
this point Stillings arrived on the scene and in a loud and
hostile voice ordered him to get the "f-k" out of the
shop. Sofield stated he responded in kind using an ob-
scenity, and told Stillings that he had a right to be in the
shop to adjust grievances. According to Sofield, Stillings
said he was going to call the police and walked away.
Sofield stated that he then went over to speak with Os-
troff, but, as he started to talk to him, Serpico pulled Os-
troff away. According to Sofield, he then went to the
men's room and after a few minutes was confronted by
three policemen who ordered him to leave the shop. At
this point, many of the employees had stopped work to
watch what was going on, and Sofield was escorted off
the shop floor by the police. Sofield stated that he next
went to Lyttle's office where Lyttle conceded that Ser-
pico and Ostroff were working overtime and that over-
time was not being offered to any of the other employ-
ees. Sofield testified that Lyttle then told him to stay out
of the shop and said, "[D]on't send anybody from that
damned Union back here again.
Robert Elzer, who testified on behalf of the General
Counsel and who currently is the shop steward, stated
that he saw Sofield enter the shop on October 24, and
that, after he spoke with Sofield about the overtime
problem and pointed out Serpico, Sofield went over to
Serpico's work area to talk with him. He further stated
that he could not hear the conversation between Sofield
and Serpico, but that he then saw Lyttle walk over to
Sofield, followed by Stillings, and that he heard Stillings
tell Sofield in a loud voice to get the "f-k out of here."
He also stated that Sofield responded to Stillings using
an obscenity, and that he heard Sofield say that he had a
right to be there. According to Elzer, it was at this point
that the other employees stopped work to watch what
was going on and shortly thereafter the police arrived to
escort Sofield off the shop floor.
With respect to the October 24 incident, Respondent
offered evidence through four witnesses; namely, Lyttle,
Stillings, Serpico, and Ostroff. According to Serpico,
after Sofield spoke with Elzer, he walked over to where
he worked and said, "I hear you don't want to be with
the Union." Serpico stated that he replied, "Yes that's
true," whereupon Sofield asked if he would explain why.
Serpico stated that during this conversation Ostroff was
not present and that Lyttle then walked over and asked
Sofield if he had a grievance. Serpico stated that, when
Sofield said yes, Lyttle asked him (Serpico) if he had a
grievance and he said that he did not. According to Ser-
pico, Lyttle then told him to go back to work. Serpico
testified that about 10 minutes later Sofield returned to
his work station arid told him, using obscene language,
that he was toadying to Robert and Thomas Lyttle. Ac-
cording to Serpico, he then went to Stillings' office to
get Sofield out of the shop, and he stated that, as he was
leaving for Stillings' office, Sofield called him obscene
names and did so in a loud voice so that the other em-
ployees in the shop could hear. Serpico testified that he
asked Stillings. "[C]an you get this union guy out of the
shop, because he's interfering with my work," where-
upon Stillings walked back to where Sofield was stand-
ing. Although Serpico testified that he did not hear the
beginning of the conversation as he was walking behind
Stillings, he did see Sofield put his face close to Stillings
and he heard Stillings say, "[l]f you don't get out of
here, I'm going to call the cops." He stated that he heard
Sofield say in response, "[Y]ou call the cops and this
place will go down in ashes tonight." According to Ser-
pico, during the confrontation between Sofield and Still-
ings, Ostroff was present but Lyttle was not.
Stillings' version of the incident is as follows: He testi-
fied that, about 5 to 10 minutes after Sofield entered the
shop, Serpico came to his office and said that Sofield
was bothering him and calling him obscene names. Still-
ings stated that he approached Sofield on the shop floor
and said, "[W]hat's the problem here; why are you call-
ing the kid names . . . why are you harassing this guy?"
Stillings testified that Sofield "put his face right up to me
and started screaming in my face." According to Still-
ings, when Sofield made an obscene statement to him, he
said "You're not going to start that crap with me . ..
what's your reason for being here. I didn't think you
were going to come down and give these guys any trou-
ble," Stillings testified that Sofield replied that, "if I
don't stop harassing him, this goddamned place will be in
ashes in the morning." According to Stillings:
890
TOM'S FORD, INC.
A. I says, what do you mean by that? Can I take
that as a threat? And he says to me, you take it any
goddamned way you want to take it.
Q. Now after that, what did you-
A. Well, that's when I said, that's it, you want to
discuss anything, get in my office and we'll talk
about it, and he said something like make me or try
to make me, or something like that, and I said, well,
I wouldn't do it myself, but I'll have you the hell
out of here if you don't conduct yourself the way
you're supposed to.
Q. What did he say when you told him you
could have him taken out of there.'
A. He said, I'd like to see you try It.
Q. And to which you responded what'
A. Well with that I just turned and left. I went
up to my office and I-
Q. Did you say anything before you left''
A. No. I think that was it.
Q. Okay. What did you do when you got back to
your office'
A. I called the Keyport Police.
On cross-examination, Stillings testified that Lyttle and
Ostroff were present during the confrontation and that
Sofield did say that he was investigating a grievance In
the latter regard, Stillings testified that at the time he
spoke to Sofield he asked him "what grievance,' as he
was not aware of one at that time, and that it was only
later in the day that l.yttle told him that the grievance
involved alleged favoritism in the granting of overtime.
Stillings further testified that he haid no first-hand kno,,l-
edge as to whether Sofield was interfering with the work
of employees apart from what Serpico told him, that the
first time he saw employees stop work was when he and
Sofield began shouting at each other, and that when he
first approached Sofield he was engaged in conversation
with Lyttle. Although in his direct testimony Stillings in-
dicated that he only asked Sofield to leave the shop after
Sofield made an obscene statement, in a memorandum
written soon after October 24, Stillings indicated that the
first comment made during this confrontation was when
he asked Sofield to leave.
Lyttle testified that on October 24 he saw Sofield talk-
ing to Serpico, whereupon he went over and asked,
"What's going on." According to Lyttle, when Sofield
stated he was investigating a grievance, he told Sofield
that he was not aware of any grievance, asked Serpico if
he had a grievance and was told by Serpico that he did
not. Lyttle states that he then told Sofield, "If there is no
grievance, then you have no business here . . I'll have
to ask you to leave." According to Lyttle, a few minutes
later he returned to the shop floor, saw that Sofield was
still talking to Serpico, and again asked him to leave.
Lyttle also testified that he was present during the con-
frontation between Stillings and Sofield, and in this
regard he stated that, when Stillings came over, he told
Stillings that he had twice asked Sofield to leave. He
stated that, when Stillings asked Sofield to leave, Sofield
made an obscene remark and also said, "I have business
here, and I'm not leaving here until I've finished," Lyttle
testified that Sofield then said that the shop would be in
ashes the following day.
According to Lyttle, after the police directed Sofield
off the shop floor, he had a conversation with him in the
office. He stated that Sofield claimed that the Company
was discriminating against certain employees by showing
favoritism to Serpico and Ostroff, and that the Union
had worked very hard to get the shop and that they had
no intention of giving it up. Lyttle stated that he re-
sponded by saying:
At this point I says, I'm not discriminating on over-
time. They do clean up work at night as independ-
ent contractors. They've nothing to do with Tom's
Ford. Their taxes are not deducted here. They're
not on the clock. It's a separate business of their
own, which they egaged in, or Steve was engaged
in before there ever w-'as a Union in this dealership
With respect to Lyttle's testimony, even apart from its
inconsistencies with Serpico's ersion of the October 24
incident, I note that his alleged statement to Sofield that
he had to leave because Serpico did not have a griev-
ance doc not make much sense After all, as a result of
ioroywilt' prior visit, I.yttle was undoubtedly aware that
the complaint was not on Serpico's behalf but rather was
one allegillg inter lia that Serpico, a nonunion employ-
cc, was receiving favored treatment to the detriment of
the other union employees, a complaint which clearly
wIas of some merit. Moreover, I find it difficult to credit
yttlle's testimony that. \Rherl orowitz made the initial
complaint which involx ed alleged discrimination against
union meribers, he did rinot tell either Stillings or anyone
else about this compliit., especially where, as here, Re-
spondent had previously been ordered to remedy similar
Violations and where Lttle asserts he had been given
specific instructions regardinig his responsibilities under
the Act when he assumed the position of general man-
ager.
Ostroff, the final witness called by Respondent. testi-
fied that on October 24 Sofield approached him at work
and said, "I hear you don't like the Union too much."
Ostroff stated that he told Sofield that this was correct
and that Sofield said that, "I would join the Union and
that I did need a Union." According to Ostroff, lie told
Sofield that he did not appreciate the threats that he had
received because he was not 4)0%' for the Union (albeit
no testimony was offered about any such threats), and
Sofield said, "The Union does not make threats, they
take action." Ostroff testified that Sofield then said.
"We'll get you," and called him some obscene names at
which point Serpico walked over. According to Ostroff,
Sofield went out into the middle of the shop floor and
started calling himself and Serpico obscene names in a
loud voice, and Serpico thereupon left to get Stillings.
Ostroff stated that soon thereafter Stillings came over
and asked Sofield to leave. and that Sofield said that he
(Ostroff) had a grievance. Ostroff testified that he told
Stillings that he did not have a grievance, whereupon
Stillings again asked Sofield to leave, which request was
met with an obscenity. According to Ostroff, Stillings
said that he was going to call the police, to which So-
DIfCISIONS OF NATIONAL LABOR RELATIONS BOARD
field responded by saying, "Go ahead and call the police.
If you do this place will be ashes." (Sofield denies that
hte ever said anything about the place being in ashes.)
()n October 26, the Union filed for arbitration over the
overtime question alleging "'unequal distribution of over-
time in violation of the contract." On November 4, an
attorney for the Company wrote a letter to the union
counsel stating, in substance, that arbitration was prema-
ture because no grievance had been filed, and that the
(olpan;L was entitled to know the particularities of the
gricalnce As a result the arbitration request wvas with-
drawni. However, the Union still seeks the payroll re-
cords to evaluate the grievance.
In Janluary 19(0, Robert Elzer was appointed shop ste-
wv.ard. and on January 14 Hlorowitz sent the following
leticr to the Company:
Please be advised that Robert Elzer has been ap-
pointed Shop Steward for the Bargaining Unit Em-
ployees represented by Amalgamated Local Union
355 at your premises.
Please supply him with a list of all Bargaining
Unit Employees including:
I .Date of Hire
2. Classification
3. Rate of Pay
4. Address
5. Social Security Number
Your prompt attention in this matter would be
greatly appreciated.
With respect to the above letter, Horowitz testified
that he did not include his former request for the payroll
records because he still hoped that the Company would
comply with the request. He also testified that the infor-
mation requested in the letter was sought to enable the
newly appointed shop steward to administer the contract
and because there was a suspicion that certain employees
were being paid in excess of the contract rates and that
certain employees were being paid below the contract
rates. As to these suspicions, however, Horowitz con-
cedes that he had not received any employee complaints
concerning such matters.
According to Elzer, sometime in mid-January, a letter
on company stationery was left on his toolbox over the
weekend which set forth the names and dates of hire of
the unit employees. (There were about 20.) Also the
letter stated that the employees were being paid in ac-
cordance with the contract. However, the letter did not
set forth the addresses of the employees, their social se-
curity numbers, their job classification, or their actual
rates of pay. I note in this respect that, although the con-
tract does set forth rates of pay for certain classifications
of employees, it does not do so for others who, accord-
ing to the contract, were to receive wage increases of 22
cents to 25 cents per hour during the life of the agree-
ment.
According to Horowitz, in or about the third week of
January 1980 he visited the shop and spoke with Still-
ings. He stated that during this conversation he asked
Stillings for the payroll records previously requested,
and that Stillings said that he believed the Company's at-
torney had told Lyttle not to furnish them. In this re-
spect, Stillings testified that at or about this time he
spoke to Horowitz, who asked to see the payroll record
regarding a "question about overtime we've been giving
to certain employees," and he told Horowitz that he
should go see the office manager. According to Stillings,
when he made this "offer," Horowitz stated that Stillings
should send the records, and that, if they were not sent,
they would be subpenaed. Horowitz denied however,
that Stillings ever offered to show him the records.
Moreover, despite the tenor of Stillings' testimony that
the records were offered and refused, he conceded that
lie had no authority to compel the office manager to turn
over the records, and that he could not go into that
office to look at the records himself. As there was no
evidence that Stillings had been authorized to permit
Horowitz to obtain the records from the office manager,
I can only conclude, at best, that the purported offer was
illusory. Indeed, it is my opinion that no such offer was
made, and I do not credit Stillings' testimony on this
point.
On February 14, 1980, Horowitz wrote another letter
to the Company which stated:
Attecrtion. Mr. homas Stillings, Service Manager
Dear Mr. Stillings:
In regard to my request to you, to allow me to
examine the Payroll Records for the Bargaining
Unit Employees, you had said you would notify me
as to whether I would be given access to the re-
cords.
Please do so as soon as possible; for I had re-
quested to examine the records in order to examine
the Wage Rates being paid to the Bargaining Unit
Employees, together with the amount of overtime
worked by the Bargaining Unit Employees.
I need this information to properly administer the
contract and to check out some complaints that
have been made.
The above letter was received by John Stillings, who
turned it over to Robert Lyttle. There is no dispute as to
the fact that the records requested in this letter have not
been furnished to the Union. Also it is not disputed that,
apart from the letter placed on Elzer's toolbox, the infor-
mation sought by the Union in its January 14 letter has
not been furnished, and that such information was not
furnished on the advice of the Company's attorney.
With respect to the information requested, Respondent
asserts that the information is available to the Union
from sources other than the Company and therefore Re-
spondent need not turn it over to the Union. In this
regard Respondent offered into evidence a group of
forms which employees are asked to fill out by the
Union when they start work. These forms are used by
various benefit programs administered by the Union and,
if completed, would indicate the employee's name, social
security number, address, and other items such as marital
status. However, there is no evidence that, even if all of
Respondent's employees filled out such forms, they an-
892
I()M'S FORD. INC
swered all of the questions fully. Moreover, the forms do
not ask for the employee's job classification or his wage
rates, and nothing in these forms relate at all to the
amounts of overtime worked. Finally, having been filled
out, the Union would not be in a position to know about
a change of address which might occur after the forms
had been turned in.
C. Concluding Findings
1. The incident on October 24
It is my opinion that the evidence establishes that Ser-
pico and Ostroff were newly hired employees who, be-
cause of their opposition to the Union, were given over-
time work in preference to other employees who were
members of the Union. Moreover, I conclude that this
was done in a manner designed to avoid the terms of the
collective-bargaining agreement's prohibition of discrimi-
nation against union members by claiming that these two
employees were performing this work as "independent
contractors." I further conclude that, when Horowitz
called this problem to the attention of Lyttle and Still-
ings in October, they were not candid with him when
Lyttle told Horowitz that he was unaware of the prob-
lem and when Stillings told him that no one was work-
ing overtime.
As a result of Horowitz's visit to the shop, he instruct-
ed Sofield to investigate the matter further. Accordingly,
Sofield went to the shop on October 24 and made inquir-
ies to employees, including Serpico and Ostroff, which
tended to confirm the complaint that these two individ-
uals were receiving preferential treatment. I also con-
clude that, when Stillings and Lyttle became aware of
what Sofield was doing. they determined that Sofield
was learning too much and decided to get him out of the
shop. In this connection, Lyttle testified that he ap-
proached Sofield, who was talking to Serpico, and asked
Serpico if he had a grievance; when Serpico replied that
he did not, Lyttle asked Sofield to leave because, as he
put it, "if there is no grievance, then you have no busi-
ness here." Yet this was done despite the fact that Lyttle
was well aware that the grievance was not on Serpico's
behalf, but was one alleging that Serpico was being
given favored treatment to the detriment of the union
employees. Additionally, I find that, when Sofield per-
sisted in investigating the matter by talking to Serpico
and Ostroff, Stillings came out on the shop floor and or-
dered Sofield to "get the f--k out of here." While there
is no dispute that Sofield answered Stillings with an ob-
scenity, it is my opinion that he did so only after being
provoked hy the manner in which Stillings ordered him
to leave. I do not credit the testimony of Respondentt' s
witnesses that Sofield either shouted obscenities at Ser-
pico and/or Ostroff before he was ordered to leave or
that Sofield in any other manner interfered with the
work in the shop. Further I do not credit the testimon)
of Respondent's witnesses to the effect that Solield
threatened to burn the facility down. 4 It is undisputed
Sfield ilnpreced rlne ; hilIg ;I Ia rlrihrgil cl r1c s ()n the other
hdnd, I hac lnoted ahr,, the llcorllr hlslrcrtle in the tlctinl iM I I [trt1.
Srrpl,., Otrflli. and Slillings I also Illrted that Slhiings Impressed tle as
and I find that, when Sofield refused to leave the shop
because of his insistence that he had a right to be there
to investigate a grievance, Respondent called in he
police to have him escorted off the shop floor. This was
done in the presence of the employees.
Inasmuch as the collective-bargaining agreement pro-
hibits discrimination based on union membership. as a
complaint had arisen which alleged a breach of that pro-
vision, and as the Union had a right, pursuant to its con-
tract, to visit the shop to investigate grievances, it is my
opinion that Respondent's actions in ordering Sofield off
the premises and in causing the police to escort him off
the shop floor in the presence of employees constitutes
interference with its employees' rights to designate and
select a collective-bargaining representative to bargain
on their behalf and to present their grievances to man-
agement. Because of the contract's grant of visitation
rights to representatives of the Union, this is not a case
swhere a company can legitimately preclude a nonem-
ployee from access to its property. As such, no conten-
tion can be made that Sofield was trespassing on Re-
spondent's property, and I find that he had a legitimate
reason and contractually granted right to be present and
to talk with employees as he did. Accordingly, I find
that the Respondent's actions on October 24 were viola-
tive of Section 8(a)(l) and (5) of the Act. oward John-
son Company, 242 NLRB 386 (1979); Ilarvey'S Wagon
Wheel, Inc., d/b/a larveys Resort Hotcl & arvey v Inn,
236 NI.RB 1670, 1680-81 (1978); View/lex Inc., fnrerly
known as Globe .41bumns, Inc., 204 NI3RH 1080 (1973).
2. The refusal to furnish information
As noted above, Horowitz visited the shop in October
and notified I.yttle that there were complaints regarding
the assignment of overtime. In this respect, Horowitz tes-
tified that, when I.yttle denied that he was aware of a
problem, he asked Lyttle for the payroll records cov er-
ing a 3-month period so that he could evaluate the merits
of the grievance. While L. ttle concedes that the ocr-
time complaint w.as raised by Horowitz during this con-
versation, he denied that Horowitz requested the payroll
records. I found Horowitz to be a forthright and candid
witness, and his testimony that he asked for the payroll
records in order to resolve a factual question makes
sense and is therefore probable. I therefore credit
Horowitz's assertion that he did ask for these records at
that time.
There is no dispute that in or about the third week of
January 1980X() Horow, itz asked Stillings for the payroll re-
cords in connection with the overtime question. As to
this conversation, Stillings testified that he told Horowitz
that it' he wanted to see the records he should get them
from the office manager. Nevertheless, Stillings conced-
ed that he (lid not have any authority to make these re-
cords available to HIorowitz through the office manager
and that he himself could not go into the office to obtain
the records Thus, although Respondent asserts that the
Union rejected an offer to review these records, I cannot
helirg an eas, e anid rulrr ltinllise llnc , m ill that Serpic) anrl ())sIrtt
were oh iouskl hilased alllsl the UilOn
893
DECISIONS ()F NATI()NALI. A()BOR R.ATIONS H()OARD
construe Stillings' testimony as warranting the conclu-
sion that a real offer was made, and I do not credit his
assertion regarding such an offer. '
The Union's request for the payroll records was reiter-
ated in a letter sent to the Company on February 14,
1980, and there is no dispute that these records were not
furnished to the Union.
With respect to the payroll records, these were sought
by the Union in order to ascertain whether, in fact, Ser-
pico and Ostroff were being given preferential treatment
in the assignment of overtime. As Serpico was not a
union member and as Ostroff was opposed to the Union.
a real question was therefore raised as to whether they
were given preferential treatment because of their oppo-
sition to the Union and therefore whether Respondent
was violating the contract's ban on discrimination against
union members. As Respondent, through Lyttle and
Stillings, alternatively took the positions, when talking to
Horowitz and Sofield, that no overtime had been grant-
ed, that the overtime granted was insubstantial, that they
did not know who was getting overtime, and that Os-
troff and Serpico were doing work as independent con-
tractors, it is clear to me that the payroll records request-
ed were relevant to the administration of the collective-
bargaining agreement and that the Union was entitled to
review such records in order to evaluate whether or not
a breach of the contract had occurred. In N.L.R.B. v.
Acme Industrial Co., 385 U.S. 432 (1967), the Court held
that an employer was obligated to provide information
so that a union could evaluate a grievance prior to the
initiation of arbitration proceedings. The Court stated at
437-438:
When the respondent furnishes the requested infor-
mation, it may appear that no subcontracting or
work transfer has occurred, and, accordingly, that
the grievances filed are without merit. On the other
hand, even if it appears that such activities have
taken place, an arbitrator might uphold the respond-
ent's contention that no breach of the agreement oc-
curred because no employees were laid off or re-
duced in grade within 5 days prior to the filing of
any grievance. Such conclusions would clearly not
be precluded by the Board's threshold determina-
tion concerning the potential relevance of the re-
quested information. Thus, the assertion of jurisdic-
tion by the Board in this case in no way threatens
the power which the parties have given the arbitra-
tor to make binding interpretations of the labor
agreement.
Far from intruding upon the preserve of the arbi-
trator, the Board's action was in aid of the arbitra-
ble process. Arbitration can function properly only
if the grievance procedures leading to it can sift out
unmeritorious claims. For if all claims originated as
grievances had to be processed through to arbitra-
tion, the system would be woefully overburdened. 6
HIorowilz credibly denied Ihat any such offer was made to himl
0 The Supreme Court in Dtroi Ido,rn,t ( rrnpany ' I. R . 440) U S
301 (979). esserntially reaffirmed the holding in 41mrl though it lid
refuse itw enforce that portion of the Hoard's remedial order requiring the
employer to furnish to the Llnlon the actual tests and est scores used for
It therefore is clear that a Union's right to information
to aid in the processing of grievances is dependent only
on whether the information is probably or potentially
relevant to the administration of the collective-bargain-
ing agreement and necessary to aid in the Union's deter-
mination of whether a grievance or employee complaint 7
has sufficient merit to warrant further grievance process-
ing, provided, however, that the information is not
unduly burdelsome, legitimately confidential in nature,"
or otherwise privileged."
In the instant case, I find that the payroll records re-
quested in connection with the overtime complaint are
relevant to the administration of the collective-bargain-
ing agreement, and are not unduly burdensome, confi-
dential, or privileged. I therefore conclude that Respond-
ent violated Section 8(a)(l) and (5) of the Act by refus-
ing and failing to furnish this information. Gulf States As-
phalt Company, 178 NLRB 405 (1969). Moreover, be-
cause Lyttle testified that certain work done by Serpico
and Ostroff was paid "off the books," and therefore the
payroll records may not be completely dispositive of the
amount of work done by them after their normal work
hours, I shall order Respondent to furnish to the Union
any other records for a period of 3 months prior to Oc-
tober 2 0,'
° that may show all work done by these two
individuals and all payments of money to them by Re-
spondent.
The General Counsel contends that Respondent addi-
tionally refused to furnish to the Union information con-
cerning the names of all bargaining unit employees along
with their dates of hire, job classifications, rates of pay,
addresses, and social security numbers. In this regard, the
evidence establishes that, when a new shop steward was
appointed in January 1980, the Union made a written re-
quest for this information so that the shop steward would
be in a position to administer the collective-bargaining
agreement. The evidence in this record also establishes
that Respondent has not furnished this information
except to the extent that a letter was left on the shop
steward's toolbox over a weekend, which letter set forth
the names and dates of hire of the unit employees. Addi-
tionally, the letter stated that the employees were being
paid in accordance with the contract. Thus, even if the
above-described letter was construed as partial compli-
ance with the Union's request for information, Respond-
ent has not furnished the addresses of the bargaining unit
promotionl purpoes. TIhe Court held thalt disclosure of s'uch Ilformnallot
soul ialidate the future use of suclh tests and wTuld. in the circuni
stances of that case. constitute an unarranted breach of clnfidentlali y
7 it sites of the rationale iNi V. R.. s Aicme Industrial (o. upra. I
do not hbelieve that the mployer's otligationl to turn ,,) r releval[ inlifr-
mation is predlcated Omll the filinrg f a forlmal grel'arnc' uder thte ClTn-
tract griesance procedures In my icts, it is sufficient that a legitimate
employee comliplaint is rcccied by the union arid cmmuricated to the
cimipary See J I (at c (ompeant .A I..RBH. 253 2d 149 (7th ('ir
" Sich as the ilformailon requesteld in Detrolt Edison N. I. R.B.
suprd.
! In .-lnlecuswr-BHuth. Inri., 237 NI R 982 (I197). the Botard held that
an eployter is privileged to refusi, a 1iltll's request It furlnish 'itilessC
sltCiilc ntis lio er. iIi IrantspJport / Ad Jrs . 2.1.1 N RH t
9
4 1977),
the HBoard held that a Urniionl was 'ntillled Io the narries Of witncesses
"' t'he date of Octobher 20 i selccted because It appears that Iht is ras
the apprxinmatate ate of tihe nion's request for the payroll records
894
TOM'S FO()RI), INC{
employees, their social security numbers, their job classi-
fications, or their actual rates of pay.
Respondent argues that certain forms filled out by unit
employees for the Union would give the Union the infor-
mation concerning the employees' names, addresses, and
social security numbers, and therefore, as the Union has
access to this information through its own records, Re-
spondent had no obligation to furnish the information.
Also, Respondent contends that information concerning
the dates of hire of its employees is posted in the shop
near the timeclock and t efore is readily available to
the shop steward. Finally, Respondent contends that,
since there was no dispute regarding the rates of pay, the
statement in the letter given to the shop steward that the
employees were paid in accordance with the contract,
was sufficient.
With respect to Respondent's failure to furnish the unit
employees' names, addresses, job classifications and wage
rates, the Board stated in Georgetown Asociates d/ha
Georgetown Holiday Inn, 235 NLRB 485, 486 (1978):
[lit is well settled that the names and addresses of
unit employees, like wage data, are presumptively
relevant to the Union's role as bargaining agent
either during contract negotiations or during the
term of an agreement. Hence no showing of par-
ticularized need was necessary.
Accordingly, I find no merit in Respondent's contention
that since wage rates were not in dispute it was not obli-
gated to furnish such information to the Union. Further,
the fact that the Union may have obtained, at one time,
the names and addresses of some of the unit employees
does not, in my opinion, relieve the Company from fur-
nishing a current list of such names and addresses. I also
conclude that information setting forth the job classifica-
tions of the unit employees is presumptively relevant,
and that Respondent's failure to furnish this information
is violative of the Act. Westinghouse Electric Corporation,
239 NLRB 106 (1978).
As to the Union's request for the dates of hire of the
unit employees, it appears that this information was
given to the shop steward and was also readily aveilable
to him at all times in the shop. As such, I do not believe
that Respondent violated the Act in this respect. Also, I
do not see the relevancy of the Union's request for social
security numbers, and no evidence or argument was pre-
sented which would indicate the Union's need for this in-
formation. I therefore do not find that Respondent's fail-
ure to provide the social security numbers of the unit
employees violated the Act.
CONCI USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union is, and has been at all times material
herein, the exclusive collective-bargaining representative,
within the meaning of Section 9(a) of the Act, of certain
" See also Itleclu tining Company, 248 NLRI 1341 ( 19(11
employees of Respondent in an appropriate unit set forth
below:
All full-time and regular part-time service and parts
department employees employed at Respondent's
Keyport, New Jersey, facility, excluding all new
and used car salesmen, office clerical employees,
professional employees, guards and supervisors as
defined in Section 2(11) of the Act.
4. By ordering Union Representative Leonard Sofield
out of Respondent's shop on October 24, 1979, and by
causing him to be removed from the shop floor by the
police in the presence of employees, Respondent violated
Section 8(a)(1) and (5) of the Act.
5. By failing and refusing on and after October 20,
1979, to furnish to the Union the payroll records of bar-
gaining unit employees, Respondent violated Section
8(a)( ) and (5) of the Act.
6. By failing and refusing on and after January 14,
1980, to furnish to the Union the names, addresses, job
classifications, and pay rates of all bargaining unit em-
ployees, Respondent violated Section 8(a)(1) and (5) of
the Act.
7. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THF REMEDY
As noted above, the payroll records for the period in
question may not be sufficient to establish the amount of
overtime worked by Serpico and Ostroff as there was
evidence they were paid off the books, purportedly as in-
iependent contractors. Therefore, in addition to furnish-
ing the payroll records, I shall recommend that Respond-
ent be ordered to furnish to the Union, upon request, any
other records for a 3-month period immediately preced-
ing October 20, 1979, that may show all work done by
Serpico and Ostroff and all payments of money to them
by Respondent. Such records shall include, but not be
limited to, vouchers or bills submitted by these employ-
ees to Respondent for work done and canceled checks
made payable to these two individuals from Respondent.
The General Counsel urges that the order herein should
include a provision, in accordance with Mar-Jac Poultry
Company, Inc., 136 NLRB 785 (1962), construing, "the
initial period of certification as beginning on the date Re-
spondent commences to bargain in good faith with the
Union as the exclusive bargaining representative." While
it is true that the violations herein occurred within 12
months of the enforcement of the Board's initial bargain-
ing order, ;2 it seems to me that the purpose of the deci-
sion in Mar-Jac was to extend the certification year
where an employer refuses to bargain in good faith
during the certification year so as to eliminate any ad-
vantage obtained by such unlawful conduct and to give
the union the full 12-month period to negotiate a collec-
tive-bargaining agreement. In this case, however, the
parties did, in fact. execute a contract soon after the the
court's enforcement, on March 1, 1979. of the Board's
'' 2 NI R H 424
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining order, and that contract was effective from
July 1. 1979, to June 30, 1980. As the 8(a)(5) violations
herein found are not of a kind which necessarily evince a
determination by Respondent to withdraw recognition or
to refuse to bargain in good faith when the current con-
tract expires, I do not see the justification for the addi-
tional relief sought by the General Counsel. Such relief is
therefore denied.
Because Respondent has previously been found to
have violated the Act on two occasions, it is my opinion
that a broad order is warranted and is therefore recom-
mended. Hickmor Foods, Inc., 242 NLRB 1357 (1979).'1
Upon the foregoing findings of fact, conclusions of
law, and the entire record herein, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 4
The Respondent, Tom's Ford, Inc., Keyport, New
Jersey, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Ordering off its premises or causing the police to
escort from its shop floor union representatives who visit
Respondent's premises for the purpose of investigating
employee grievances or complaints.
(b) Refusing or failing to bargain in good faith with
the Union by refusing to furnish the Union with the pay-
roll records of bargaining unit employees for a period of
3 months immediately preceding October 20, 1979, or by
refusing to furnish the Union with a current list of the
names, addresses, job classifications, and rates of pay for
all employees who are part of the appropriate collective-
bargaining unit.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act, or in any other
manner refusing to bargain in good faith with the Union
as the exclusive collective-bargaining representative of
the employees in the appropriate unit.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Forthwith furnish to the Union the payroll records
of the bargaining unit employees for a period of 3
months immediately preceding October 20, 1979, and
furnish such other records, upon request, as will show all
work, including overtime work, done by Steve Serpico
and Edward Ostroff during such period of time. Such
other records shall include, but not be limited to, any
vouchers or bills submitted by Serpico and Ostroff to
Respondent and all canceled checks made payable to
these two employees by Respondent.
A' At the close of the hearing counsel for the Charging Party indicated
that be would he seeking litigation expenses. As no brief was subminitted
by the Charging Party, that request was not pursued further. In any
event, I am not of the opinion that such expenses are warranted in the
circumstances of this case
mt In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall. as provided
in Sec 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions. and Order, and all objections thereto
shall be deemed waived for all purposes.
(b) Forthwith furnish to the Union a current list of the
names, addresses, job classifications, and rates of pay for
all employees who are part of the appropriate collective-
bargaining unit.
(c) Post at its Keyport, New Jersey, facility copies of
the attached notice marked "Appendix."' s Copies of said
notice, on forms provided by the Regional Director for
Region 22, after being duly signed by Respondent's au-
thorized representative. shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including at 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.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply therewith.
l In the evnlt that this Order is nforced by a Judgment of a United
Sltates Court of Appels, the words in the notice reading "Posted h,
)rder of the National Labor Relatlirs Board" shall read "Posted Puru-
alil to a Judgment ofI the Unlited Staltes Court of Appeals lfiorclng an
Ordel If the National l.abor Rclatlils BHoard
APPENDIX
Norici To EMPI OYtE S
POSTED BY ORDER OF IHE
NATIONAl LABOR REl. AIONs BOARD
An Agency of the United States Government
Wt- WII.L NOI order off our premises or cause
the police to escort from our shop floor any repre-
sentative of Amalgamated Local Union No. 355
who visits our Company for the purpose of investi-
gating employee grievances or complaints.
WE Wllt. NOT refuse or fail to bargain in good
faith with the Union by refusing to furnish the pay-
roll records of bargaining unit employees of a cur-
rent list of the names, addresses, job classifications,
and rates of pay of all employees who are part of
the collective-bargaining unit.
WE Wit I NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act, or in any other manner refuse to bargain in
good faith with the Union as the exclusive collec-
tive-bargaining representative of the employees in
the appropriate bargaining unit.
WE Wl. l. forthwith furnish to the Union the pay-
roll records of the bargaining unit employees for a
period of 3 months immediately preceding October
20, 1979, and furnish such other records, upon re-
quest, as will show all work, including overtime
work, done by Steve Serpico and Edward Ostroff
during such period of time. Such other records shall
include, but not be limited to, any vouchers or bills
submitted by Serpico and Ostroff to us and all can-
celed checks made payable to these two employees
by us.
896
TOM'S FORD, INC.
WE Wii.I forthwith furnish to the Union a cur-
rent list of the names, addresses, job classifications,
and rates of pay of all employees who are part of
the appropriate collective-bargaining unit. The ap-
propriate unit for collective bargaining is:
All full-time and regular part-time service and
parts department employees employed by Tom's
Ford, Inc. at its Keyport, New Jersey, facility.
excluding all new and used car salesmen, office
clerical employees, professional employ cs,
guards and supervisors as defined in Seclion 2( 11 )
of the Act.
ToNM's FORI), IN(C.
8q7