Tred-Air of California, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1971

193 N.L.R.B. 672 (N.L.R.B. 1971)

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tred -Air of California , Inc., and Teamsters Automo-
tive Workers Local 495 , International Brotherhood
of Teamsters, Chauffeurs , Warehousemen & Help-
ers of America. Cases 21-CA-9404 and
21-CA-9780
October 12, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 21, 1971, Trial Examiner Maurice Alexan-
dre issued his Decision in the above-entitled proceed-
ing, finding that Respondent has engaged in and was
engaging in certain unfair labor practices alleged in
the complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the proceeding, and hereby adopts
the findings, conclusions, and recommendations I of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Tred-Air of California, Inc., its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.
i We find that the unfair labor practices committed by Respondent are
of such a character as to reflect a predisposition on its part to thwart, by
other means as well, employees' efforts to engage in legitimate concerted
activities for the purpose of self-organization or other mutual aid or
protection Accordingly, we shall adopt the broad Order recommended by
the Trial Examiner, enjoining all forms of unlawful interference with
employee rights guaranteed by Section 7 of the Act
TRIAL EXAMINER 'S DECISION
MAURICE ALEXANDRE, Trial Examiner: This case was
heard in Los Angeles, California, on February 4, 1971,
upon a consolidated complaint alleging that Respondent
had violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended.' In its answer,
Respondent denied the commission of the unfair labor
practices alleged. The issues presented are (1) whether or
not Respondent was deprived of constitutional rights
because it was represented at the hearing by its owner and
president rather than by counsel, and (2) if not, whether or
not the record establishes that Respondent unlawfully
interrogated and promised benefits to its employees,
unlawfully discharged Thomas E. Lopp, and refused to
bargain with Teamsters Automotive Workers Local 495.
Upon the entire record, my observation of the witnesses,
and the briefs filed by the General Counsel and by
Respondent,2 I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent has admitted the following allegations of the
complaint:
2. (a) Respondent, a California corporation, is
engaged in the business of retreading aircraft tires
at Bellflower, California.
(b) Respondent, during the past calendar year, in
the normal course and conduct of its business
operations, purchased and received goods and
services valued in excess of $50,000 directly from
suppliers located outside the State of California.
3. Respondent is now, and at all times material herein
has been, an employer engaged in commerce and
in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
I find the facts to be as admitted, and that Respondent is,
and at all times material herein has been, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Teamsters Automotive Workers Local 495 is
now, and at all times material herein has been , a labor
organization within the meaning of Section 2(5) of the Act.
III. THE CONSTITUTIONAL ISSUE
At the hearing, Respondent's owner and president, Odell
Lopp, appeared for Respondent and gave the following
responses to inquiries put to him:
TRAIL EXAMINER: Mr. Lopp , are you an attorney?
MR. LOPP: No.
TRIAL EXAMINER : Do you believe that you can
represent the Respondent in this proceeding?
I The charge in Case 21-CA-9404 was filed on July 24, 1970, and a
complaint based thereon was issued on October 8, 1970, alleging violations
of Section 8(a)(1) and (3) The charge in Case 21-CA-9780 was filed on
January 26, 1971, and the consolidated complaint was issued on February
2, 1971, alleging violations of Section 8(a)(1), (3), and (5) At the request of
Respondent, the hearing was held on February 4, 1971, as scheduled
2 Following the close of the hearing, Respondent retained counsel
193 NLRB No. 97
TRED-AIR OF CALIFORNIA, INC.
MR. LOPP: I never went into this before. I don't
know if I can or not. I didn't get an attorney
because I didn't think it was necessary to get one.
Maybe it is.
TRIAL EXAMINER: Well, that is something you
have to decide I take it you have given some
thought to the matter
MR LOPP• Well, as far as that goes, I don't think
that an attorney could help in this case. I haven't
even talked to an attorney.
TRIAL EXAMINER: Have you given any thought to
whether you want to be representated by an
attorney?
MR. LOPP: I wanted to get it handled today and if
I had gotten it handled by an attorney, I would
have gotten an attorney and I would have had to
wait and I wanted to take my chances on it today.
TRIAL EXAMINER: Then, you are satisfied to go
ahead?
MR LOPP. Right.
The hearing thereupon proceeded. As noted, following the
close of the hearing, Respondent retained counsel, who
now seeks a new hearing on the ground that under
California law, only an attorney can represent and bind a
corporation, and that "the denial of counsel for the
[Respondent] corporation to appear was a denial of Due
Process of law and the Equal Protection of law also, rights
guaranteed by both the Fifth and Sixth Amendments of the
U.S. Constitution." I disagree. A party's right to representa-
tion in an unfair labor practice proceeding is governed, not
by California law, but by Federal law. Cf. Rabouin v.
N.L.R.B, 195 F.2d 906, 910 (C.A. 2). Section 10(a) of the
Act provides that where a complaint is issued and served
upon a "person" in such a proceeding, such person shall
have the right to appear in person "or otherwise" to give
testimony.; Section 102.38 of the Board's Rules and
Regulations shall have the right to appear at the hearing in
person, by counsel, "or by other representative." It is thus
clear that a corporation may appear and be represented at a
hearing by its president. Here, Respondent expressly
waived the right to appear by counsel and voluntarily
elected to be represented at the hearing by its owner and
president who, it may be added, was accorded great leeway
in presenting Respondent's case and in cross-examining
witnesses . I accordingly find that no prejudice to Respon-
dent has been shown. The request for a new hearing is
denied.
IV. THE UNFAIR LABOR PRACTICES
A. Background
Prior to January 8, 1970,4 Thomas E. Lopp, the nephew
of Odell, was employed by Odell's son, Bob Lopp, in the
latter's automobile tire retreading shop, which is located in
the same building as Respondent's aircraft tire retreading
shop. On the latter date, Thomas was hired by Respondent.
On or about June 2, Thomas communicated with Local 495
(hereafter called the Union) relative to organizing Respon-
dent's employees. On June 4, a representative of the Union
met with Thomas and six other employees of Respondent,
J Section 2(l) of the Act defines "person" as including a "corporation "
I All dates referred to hereafter relate to 1970 unless otherwise stated.
5 Odell testified that Walker was his accountant
673
and all seven signed union authorization cards. The Union
thereafter filed a petition for certification, an election was
held on July 16, and the Union was certified on July 24.
B. Interference, Restraint, and Coercion
1. About the middle or end of June, while Odell and his
wife were out of town, a number of Respondent's
employees, including Thomas, were called one at a time
into Odell's office by Bob, who introduced them to an
individual in the room and then left. Each of the employees
was greeted by the individual, one Craig Walker, who
identified himself simply as Odell's "attorney,"5 stated that
Odell was upset by information that someone was
attempting to bring in a union, interrogated them about
whether they wanted a union or whether they knew anyone
who was sufficiently unhappy to call the Union, promised
paid vacations and other improved benefits if they voted
against unionization, and threatened that Odell would
eliminate their overtime if they voted to unionize. Odell did
not dispute the occurrence of this incident, but credibly
testified that he had been unaware of it until the day prior
to the hearing.
Remarks like those made by Walker are clearly
prohibited by Section 8(a)(1) of the Act. The question is
whether or not such remarks should be imputed to
Respondent even though not authorized by the latter. I find
that they should. Respondent's employees knew of the close
familial relationship between Odell and Bob. They also
knew that Odell had given Bob access to Respondent's
shop .6 Thus, when Bob called the employees to Odell's
office, he created the impression, thereby giving them
reason to believe, that he was acting with the latter's
approval. Since Odell had placed Bob in a position to create
such impression, I find that Bob should be treated as an
agent of Respondent, and that Respondent should be held
responsible for the conduct of Bob and his subagent,
Walker.
2. About one or two weeks before the election held on
July 16, Odell told several employees that if they voted to
unionize he would close down the shop and convert it into a
warehouse. When one of the employees pointed out to him
that it was his nephew, Thomas, who had organized the
employees, Odell replied that if his nephew wished to work
in a union shop, he should go to work for one. I do not
credit Odell's denial that he made the above statements and
find that they violated Section 8(a)(I).
C. Discrimination
At the election on July 16, a majority of Respondent's
employees voted for the Union. On the following day,
Respondent discharged Thomas, allegedly because of lack
of work. For the reasons noted below, I find that the
discharge was motivated by Thomas' role in organizing the
employees. Although Odell testified that the general
aviation work, which had been performed by Thomas,
began to decline about two years ago and became "real
bad" about the first part of January, the record shows that
6 Odell testified that Bob made repairs in Respondent 's shop , sometimes
at the request of its employees, and that at times Bob turned on the
electricity for the machines in the shop
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas was hired in that month and kept until July. At
least one employee, Bullock, worked overtime for several
months after the discharge of Thomas. Respondent
retained Richard Perez, an employee who had less senionty
than Thomas and whose job duties had been performed by
Thomas. Although Perez was paid less than Thomas,
Respondent did not give the latter an opportunity to remain
in its employ at a lower rate of pay. Not long after the
discharge of Thomas, Respondent hired several new
employees.
For these reasons, and in view of Respondent's
knowledge of Thomas' role in organizing the employees,
the timing of his discharge, and Respondent's antiunion
bias, I find that the discharge of Thomas was discriminato-
ry and violated Section 8(a)(3) and (1) of the Act.
D. Refusal to Bargain
On July 24, the Union was certified as the exclusive
collective-bargaining representative of Respondent's prod-
uction and maintenance employees. By letter dated July 27,
the Union's organizer, Lee, requested Odell to meet for
purposes of negotiating a contract. Receiving no reply, Lee
telephoned Respondent's plant on July 31 and August 6,
spoke to Odell's wife on both occasions, and was told by
her that Odell was not available but that he would return
Lee's calls. Lee did not hear from Odell.
Prior to the certification, Respondent had been represent-
ed by a management consultant, Richard Cord. Following
the certification, Respondent replaced Cord with another
consultant, Arthur K. Lovatt, Jr., who so notified Lee by
letter dated August 10. Lee telephoned Lovatt and they met
on August 14, at which time Lee submitted a proposed
contract. Lovatt stated that he would communicate with
Lee after consulting Odell. Not hearing from Lovatt for
several days, Lee called him and they arranged to meet
again on August 21. At their meeting on that date, Lovatt
expressed the view that the contract was a fair one, but
stated that Odell had indicated that he needed additional
financing from the U. S. Rubber Co. in order to absorb the
cost of the contract. Lovatt further stated that he would call
Lee. Not hearing from him, Lee telephoned Lovatt on
September 29, at which time the latter stated that he no
longer represented Respondent. Thereafter, the Union
assigned the matter to Ullman, its secretary-treasurer.
On October 8, the original complaint herein was issued.
In mid-October, Ullman received a call from Odell, who
stated that he had had a problem reaching agreement with
Lee and requested a meeting, which was held on November
4. At the meeting, Odell stated that he saw no problem with
the proposed contract other than its cost, that he planned to
ask U. S. Rubber Co. for a price increase , and that he would
then communicate with Ullman. Since Odell did not call
him as promised, Ullman called Odell on November 15, at
which time Odell stated that he had received no answer
from U. S. Rubber but would call Ullman in a few days.
Again not hearing from Odell, Ullman telephoned
Respondent on December 1, 14, and 29, spoke to Odell's
wife each time, and was assured by her that Odell would
return his calls. As of the date of the hearing on February 4,
1971, Odell had not returned Ullman 's calls. Odell testified
that he had not yet met with U. S. Rubber, but expected to
see their representatives within a few days.
I agree with the General Counsel's contention that the
above-described conduct by Respondent failed to satisfy its
obligation to bargain in good faith, thereby violating
Section 8(a)(5) and (1) of the Act. Respondent did not
retain either of its labor management representatives long
enough to give them a reasonable opportunity to reach
agreement with the Union. It dispensed with the services of
Cord after the Union won the election and was certified,
and it dispensed with the services of Lovatt after he met
with Lee and expressed the view that the contract proposed
by the latter was fair. Thereafter, Odell communicated with
the Union only once to request a meeting . It is significant
that this request was made shortly after the initial
complaint herein was issued . So far as the record shows, the
only position taken by Odell at his meeting with Ullman on
November 4 was that he needed time to attempt to obtain a
pnce increase from a large customer so that he could
absorb the cost of the proposed union contract. But
although Odell promised to communicate with Ullman, he
did not do so despite a number of telephone calls by the
latter. I find that such conduct, when viewed in the context
of Respondent's opposition to unionization and its unfair
labor practices found above, is indicative of an attempt to
evade a contract with the Union through the use of dilatory
tactics.
But even if it were assumed that Respondent was not
deliberately engaging in evasive tactics, it nevertheless fell
short of discharging its statutory obligation to bargain.
Odell's single meeting with Ullman obviously did not
satisfy that obligation. Moreover, although the Union
acquiesced in Respondent's request for time to discuss a
price increase with its customer, Respondent could not
expect an indefinite postponement of negotiations. If it
failed to obtain an answer from its customer , it was under
an obligation to notify the Union about the situation. Upon
notification, the Union would have had an opportunity to
request a meeting with Respondent for an exchange of
ideas which might result in a contract. At such a meeting,
the Union might have been able to demonstrate that the
increased contract costs anticipated by Respondent could
be offset by other savings. It might have persuaded
Respondent to make a counterproposal . Or Respondent
might have persuaded the Union to scale down its
demands. In United States Cold Storage Corp., 96 NLRB
1108, the Board stated : "It is elementary that collective
bargaining is most effectively carried out by personal
meetings and conferences of parties at the bargaining
table." And in American Federation of Television and Radio
Artists, etc. v. N.L.R.B., 395 F.2d 622, 628 (C.A.D.C.), the
Court stated: "It is indeed a fundamental tenet of the act
that even parties who seem to be in implacable conflict
may, by meeting and discussion , forge first small links and
then strong bonds of agreement ." I find that Respondent's
dilatory conduct, even if not intended as a device to evade a
contract; violated Section 8(a)(5) and (1) of the Act.
Respondent's sole defense is that there is no evidence that
the Union dealt with an authorized agent of Respondent
corporation or was "officially" refused recognition. As
president and owner of Respondent, Odell was its agent,
TRED-AIR OF CALIFORNIA, INC. 675
and his failure to bargain with the Union is attributable to
Respondent . Normandy Square Food Basket, Inc., 163
NLRB 369, fn. 2.
CONCLUSIONS OF LAW
A. By interfering with, restraining, and coercing its
employees, as found herein, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
B. By discharging Thomas E. Lopp because of his union
activity, as found herein, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
C. By failing and refusing to bargain with the Union, as
found herein, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
D. The aforesaid unfair labor practices affect com-
merce within the meaning of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I recommend that it cease and desist
therefrom and that it take certain affirmative action which I
find necessary to remedy and remove the effects of the
unfair labor practices and to effectuate the policies of the
Act.
Affirmatively, I recommend that Respondent offer to
Thomas E. Lopp immediate and full reinstatement to the
position which he held at the time of his discharge or to a
substantially equivalent position, without prejudice to his
seniority and other rights and privileges, dismissing if
necessary an employee hired subsequent to the date of such
discharge. I further recommend that Respondent make
Lopp whole for any loss of earnings suffered because of the
discharge by paying to him a sum of money, with interest,
equal to that which he would have been paid by
Respondent from the date of his discharge to the date on
which Respondent offers reinstatement as aforesaid, less
his net earnings, if any, during said period. The loss of
earnings under the order recommended shall be computed
in the manner set forth in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. 1 also recommend that Respondent bargain in good
faith with the Union as the certified representative of its
employees.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 7
ORDER
Respondent, Tred-Air of California, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating, threatening, or promising
benefits to its employees.
(b) Unlawfully discharging employees or otherwise
unlawfully discriminating in regard to their hire, tenure of
employment, or any term or condition of employment.
(c) Unlawfully failing or refusing to bargain collectively
with Teamsters Automotive Workers Local 495 as the
certified representative of its employees.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of any right
guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to Thomas E. Lopp immediate and full
reinstatement to his former or a substantially equivalent
position, and make him whole for any loss of earnings he
may have suffered by reason of Respondent's discrimina-
tion against him, in the manner set forth in the section
herein entitled "The Remedy."
(b) Notify the above-named employee, if presently
serving in the Armed Forces of the United States, of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
(c) Preserve and make available to the Board or its agents
on request, for examination and copying, all payroll records
and reports, and all other records necessary to analyze the
amount of backpay due and the right of reinstatement
under the terms of this Recommended Order.
(d) Upon request, bargain collectively with Teamsters
Automotive Workers Local No. 495 as the certified
representative of its employees and embody in a signed
contract any understanding reached.
(e) Post at its plant in Bellflower, California, copies of the
attached notice marked "Appendix." 8 Copies of said notice
on forms provided by the Regional Director for Region 21,
after being signed by a representative of the Respondent,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter in
conspicuous places. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 21, in writing,
within 20 days from the receipt of this Decision what steps
have been taken to comply herewith .9
7 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 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
8 In the event that the Board 's 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
9 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read-
"Notify the Regional Director for Region 21, in writing , within 20 days
from the date of this Order , what steps have been taken to comply
herewith "
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection; and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT unlawfully discharge employees or
otherwise discriminate against them because of their
union activities.
WE WILL NOT unlawfully question, threaten, or
promise benefits to our employees.
WE WILL OFFER to take back Thomas E. Lopp to his
old job and pay him for all the wages he lost because of
his discharge.
WE WILL, upon request , bargain collectively with
Teamsters Automotive Workers Local No. 495 as the
certified representative of our employees.
Dated By
TRED-AIR OF
CALIFORNIA, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This Notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other matenal.
Any questions concerning this Notice or compliance with
its provisions , may be directed to the Board 's Office,
Eastern Columbia Building , 849 South Broadway, Los
Angeles, California 90014, Telephone 688-5254.