Valley Oil Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1974

210 N.L.R.B. 370 (N.L.R.B. 1974)

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Valley Oil Co., Inc. and Teamsters, Chauffeurs,
Warehousemen and Helpers Union Local 437, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case l-CA-8788
April 30, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On September 21, 1973, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel refiled
his memorandum filed to the Administrative Law
Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order as modified herein.
In finding that Respondent violated Section 8(a)(5)
and (1) of the Act by engaging in bad-faith
bargaining with the Union, the Administrative Law
Judge specifically refused to rely on the statements of
Vincent Mello , the dispatcher and assistant manager
of the Haverhill facility, to various employees that
they "would never get a contract" or that the
Respondent "would close down" before it would sign
an agreement with the Union. Although he found
such statements violative of Section 8(a)(1), the
Administrative Law Judge concluded that Mello's
supervisory position was not the type of job which
would make him privy to the deliberations of the
Pescosolidos, who owned and operated the business.
He further concluded that Mello, in the absence of
direct evidence that the Pescosolidos had informed
him of their intentions about a contract, and because
he did not participate in the negotiations, was merely
voicing his opinion in his above statements concern-
ing Respondent's having no intention to reach
agreement. We disagree with these conclusions.
As assistant manager and dispatcher, Mello was
next in command to the Pescosolidos over the unit
employees. Therefore, responsibility for his state-
ments must be imputed to the Respondent. Accord-
1 In the absence of exceptions thereto, we hereby adopt pro forma the
Administrative Law Judge's findings regarding the discharge of employee
ingly, we find that Mello' s 8(axl) conduct constitutes
an element of the Respondent's bad-faith bargaining.
REMEDY
In the section entitled "The Remedy," the Admin-
istrative Law Judge recommends that the Respon-
dent be ordered to offer the unlawfully discharged
strikers reinstatement to their former positions
without their being required to make a prior
unconditional application for reinstatement. It is the
settled policy of the Board that employees who are
discharged while on strike must indicate abandon-
ment of the strike and a willingness to return to work
in order to establish their right to their jobs and
resumption of wages, unless there is a showing that
such application would have been futile. Astro
Electronics, Inc., 188 NLRB 572; Sea-Way Distribut-
ing, Inc., 143 NLRB 460 . Since the present record
contains no such evidence , we shall modify the
remedy to conform with established Board policy. In
doing so, however, we find it only fair that the
Respondent should be required to notify the dis-
charged strikers immediately that each will be
reinstated upon his making proper application as
indicated above, and it shall be so ordered. In
addition, we shall order that replacements hired after
the unfair labor practice strike began be discharged,
if necessary , to make room for those unfair labor
practice strikers who may so apply . We shall also
modify the recommended Order to provide that
backpay shall commence for each striking employee,
including the five employees found to have been
unlawfully discharged , commencing 5 days following
his unconditional offer to return to work.
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, as modified below, of the Administrative
Law Judge and hereby orders that Respondent,
Valley Oil Co., Inc., Haverhill, Massachusetts, its
officers, agents, successors, and assigns, take the
action set forth in the said recommended Order as
modified herein.
1. Substitute the following paragraph for para-
graph 2(f) in the Administrative Law Judge's
recommended Order:
"(f) Immediately notify David Rain, Jeffrey Hodg-
es, Norman Thompson, Edward Duchesneau, and
Stanley Widgren that it has no objective to their
reinstatement, and thereafter, upon their uncondi-
tional application therefor, offer them reinstatement
Raymond Holland.
210 NLRB No. 47
VALLEY OIL CO.
to their former jobs or, if such jobs are not available,
to substantially equivalent jobs, and make them
whole for the period commencing 5 days after the
date of any such application for any loss of pay they
may have suffered by reason of the discrimination
against them by payment to them of a sum of money
equal to the amount they normally would have
earned as wages, in the manner set forth in the
section entitled `The Remedy.' "
2. Insert the following as paragraph 2(g) and
consecutively renumber the remaining paragraphs of
the recommended Order:
"(g) Upon their unconditional application for
reinstatement , offer the striking employees immedi-
ate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
jobs, without prejudice to their seniority or other
rights and privileges , dismissing, if necessary, any
replacements , and make them whole for any loss of
pay they may have suffered for the period commenc-
ing 5 days after the date of any such application in
the manner set forth in the section entitled `The
Remedy.' "
3. Substitute the attached notice for the notice
attached to the Administrative Law Judge 's Deci-
sion.
MEMBER FANNING, dissenting in part:
My majority colleagues have concluded that it will
effectuate the purposes of the Act to require an
unlawfully discharged striker to make an uncondi-
tional offer to return to work before the employer
has any obligation to reinstate him. But an unlawful-
ly discharged striker is an unlawfully discharged
employee.2 The discharge violates the statute in
either case. I believe such an employee is entitled to
backpay fi i :.i the date of discharge until the date he
iccw cs a valid offer of reinstatement. Whether or
not an unlawfully discharged striker has continued to
strike after his unlawful discharge is a backpay
question to be resolved in the same manner as any
other willful loss of earnings incurred by an unlaw-
fully discharged employee. The burden, however, is
on the Employer; not only to offer reinstatement, but
also to prove willful loss of earnings.
I would order the Employer to reinstate the
unlawfully discharged employees with backpay from
the date of discharge, subject to normal offset
considerations. I otherwise approve the majority
opinion.
2 Southern Greyhound Lines, Division of Greyhound Lines, Inc, 426 F 2d
1299 (C.A 5, 1970), Massey Gin and Machine YVorks, Inc, 78 NLRB 189,
203; cf International Van Lines, 409 U S 48 (1972).
APPENDIX
371
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we have violated the
law and has ordered us to post this notice.
WE WILL NOT discharge employees because
they engaged in a strike.
WE WILL NOT assign David Rain to more
arduous or less agreeable jobs because of his or
other employees' activities on behalf of Team-
sters, Chauffeurs, Warehousemen and Helpers
Union Local 437, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, nor will we deprive him of
overtime or sick pay because of such activity, and
WE WILL make him whole for any loss of pay he
may have suffered by reason of our failure to
assign him to his normal duties and by reason of
our denial of such pay.
WE WILL immediately notify David Rain,
Norman Thompson, Stanley Widgren, Edward
Duchesneau, and Jeffrey Hodges that we have no
objection to their reinstatement, and thereafter
upon their unconditional application for such,
offer them reinstatement to their former jobs or, if
those jobs no longer exist, to substantially
equivalent jobs, and WE WILL make them whole
by paying them any wages they may have lost
because we discharged them unlawfully, com-
mencing 5 days after date of any such applica-
tion.
WE WILL offer, upon their unconditional
application, to reinstate the striking employees to
their former jobs or, if those jobs no longer exist,
to substantially equivalent jobs, dismissing, if
necessary, any replacements, and make them
whole for any loss of pay for the period
commencing 5 days after the date of any such
application.
WE WILL NOT change conditions of employ-
ment such as Christmas bonus and uniforms, nor
will we subcontract unit work, without first
notifying and consulting with the above-named
Union.
WE WILL NOT discontinue paying a Christmas
bonus or providing uniforms to employees, nor
will we subcontract unit work or hire part-time
employees, because our employees have selected
the above-named Union as their representative
for the purposes of collective bargaining.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL pay to those employees who did not
receive a Christmas bonus in December 1972 a
Christmas bonus in the amount and according to
the formula used in paying a Christmas bonus to
other employees.
WE WILL pay to all employees who were
unlawfully deprived of uniforms in the fall of
1972 the dollar value of the uniforms which was
unlawfully withheld from them.
WE WILL make the tank trailer drivers whole
for any loss of pay they may have suffered by
reason of the employment of part -time help and
the subcontracting of work they normally per-
formed.
WE WILL NOT tell employees that management
will never sign a contract with the Union or that it
will close the plant before signing a contract.
WE 'WILL NOT tell employees that Christmas
bonuses have been withheld because employees
selected the above -named Union to represent
them.
WE WILL NOT imply to employees that sick
leave benefits have been denied them because
employees selected the Union to represent them.
WE WILL NOT tell employees part-time help has
been hired to reduce the overtime of regular
employees because they voted for the Union.
WE WILL NOT tell employees that they have
been discharged because they are participating in
a strike.
WE WILL NOT tell strikers we will find a way to
discharge them.
WE WILL bargain collectively, upon request,
with the above-named Union , as the exclusive
representative of all our employees in an appro-
priate unit with respect to rates of pay, wages,
hours of employment , and other terms and
conditions of employment , and, if an understand-
ing is reached, embody such understanding in a
signed agreement . The bargaining unit is:
All truckdrivers and oil burner servicemen
employed at our Haverhill, Massachusetts,
location, but excluding office clerical em-
ployees, salesmen , dispatchers , ma tenance
men, guards , and supervisors as defined in
the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed to them by Section 7
of the National Labor Relations Act, as amended.
You are free to become and remain members of
Teamsters, Chauffeurs, Warehousemen and Helpers
Union Local 437, or any other labor organization.
VALLEY OIL CO., INC.
(Employer)
Dated By
(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 material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Seventh Floor, Bulfinch Building, 15
New Chardon Street, Boston, Massachusetts 02114,
Telephone 617-223-3300.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge : This case
involves allegations that Respondent Valley Oil engaged in
conduct independently violative of Section 8(axl) as
hereinafter described, that it discharged six employees in
violation of Section 8(axl) and (3) of the Act, that it
violated Section 8(axl), (3), and (5) of the Apt by certain
unilateral changes in conditions of employment , and that it
violated Section 8(axl) and (5) by engaging in surface
bargaining. The complaint issued on May 1, 1973,
pursuant to a charge filed by the above-named Union on
January 12, 1973, which was first amended on January 23,
1973, and amended a second time on January 16, 1973. On
May 29, through June 1, 1973, a hearing was held in
Boston, Massachusetts.
Upon the entire record , including my observation of the
witnesses , and after due consideration of the briefs filed by
General Counsel and Respondent , I make the following:
FINDINGS OF FACT
1. FACTUAL SETTING
Respondent is engaged in the retail sale and wholesale
and distribution of gasoline and fuel oil and in the
operation and leasing of American Oil Service stations.
Respondent's principal office and place of business is in
Haverhill, Massachusetts .) In the summer of 1972,2
Respondent 's employees became interested in union
representation and their interest culminated in the filing of
a representation petition on June 28, pursuant to which an
election was held on August 4, in which a majority of the
employees cast valid ballots designating the Union as their
bargaining representative . On October 11, the Union was
duly certified.
Beginning in early November , until January 15, 1973, the
I Jurisdiction is not in issue . The complaint alleges, the answer admits, the assertion of jurisdiction.
and I find that Respondent meets the Board 's direct outflow standard for 2 All dates are in 1972 except where otherwise indicated.
VALLEY OIL CO. 373
Union and Respondent engaged in negotiations without
reaching agreement . On January 15, 1973, the employees
went out on strike. The parties continued their negotiations
after the strike began, but no agreement was reached and
no negotiations have been held since March 2, 1973. The
strike was still in progress at the time of the hearing.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Interference, Restraint, and
Coercion
1. Vincent Mello
Vincent Mello, dispatcher and assistant to the manager
and an admitted supervisor within the meaning of Section
2(11) of the Act, is alleged to have engaged in the following
acts of interference with, and restraint and coercion of,
employees in violation of Section 8(aXl) of the Act:
Raymond Holland was hired by Mello on November 3, as
a part-time gasoline tank trailer driver. He testified that on
the day he was hired Mello told him he was being hired to
cut down on overtime of the employees because the Union
had been voted in. He testified further that, on December
28, Mello asked him if he wanted full-time employment
and Holland replied that he did and asked Mello who was
the union man to see about signing. Mello threw his hands
up and said, "Oh, another one." Holland testified that on
January 18, 1973, he asked Mello why he was no longer
being given employment and asked whether he was laid off
or fired. Mello pointed out the window of the office and
said, "there is the reason right there."
Mello denied making any of the foregoing statements,
but I do not credit him. As will appear elsewhere in this
decision, Mello was involved in many aspects of this case.
In the main, I have not credited his testimony because he
appeared to me to be less than completely candid and
generally his testimony was outweighed by the circum-
stances . Where I have credited him, the circumstances
supported him. As between Mello and Holland, I credit
Holland because he impressed me favorably as an honest
witness . Accordingly, I find that Respondent violated
Section 8(aXl) by Mello's statement to Holland that he
was being hired to reduce the overtime of the drivers
because the Union had been voted in. I find that his
remark on December 28 "Oh, another one" was not
coercive, but his remark on January 18 was coercive
because it attributed Holland's loss of employment to the
strike.
Norman Thompson, a tank-trailer driver, testified that 2
weeks after the election Mello told him that "we would
never get a contract" and "that they would close the place
down before we got a contract."
Mello denied making any statements about the Compa-
ny's intentions about signing a contract. He admitted
making a remark to Thompson about the probability that
Respondent could close its doors, but he did not explain
the circumstances under which he made the remark.
I credit Thompson. Mello's admission of a remark about
closing the doors lends credence to Thompson's testimony
about a threat. As to the remark about not signing a
contract, Mello's denial was a general denial an in not
crediting him I rely, in part, on his admission that he had
discussions with the drivers about the status of negotia-
tions, when it would not be unlikely for Mello to state that
Respondent would never sign a contract. Such a remark
would clearly tend to interfere with employees because of
the idea of the futility of collective action which it conveys.
Thompson also testified that in the first week of the
strike, on the picket line , Mello told him "we were all
fired." According to Mello , he asked Thompson if he knew
all the fellows were going to be replaced. I credit
Thompson. The term replacement is one familiar in labor
relations, but not one in common usage by, or commonly
known to , low-level supervisors. I believe and find that
Mello said the strikers were fired and thereby violated
Section 8(aXl) of the Act.
Edward Duchesneau, a retail fuel oil driver, testified that
in mid-November he asked Mello if he thought they would
get a contract and Mello said the old man would never sign
a contract . He also testified he asked Mello about a
Christmas bonus and Mello said they would not be getting
one because of the Union.
The first part of buchesneau's testimony was denied by
Mello in his general denial that he made such a statement
to anyone. Mello did not deny the remark about the
Christmas bonus. I credit Duchesneau and find that both
statements were made and both were violative of Section
8(aXl) of the Act.
Duchesneau testified that in February he had a conver-
sation with Mello at a store near the terminal when he
asked Mello if he thought they would eventuall y get a
contract . Mello replied that it made no difference because
the old man would find a way to fire them anyway.
Mello denied making any such remarks to anyone. I
credit Duchesneau . The remark contained a clear threat of
discharge and related to the employees' union activities. I
find that Respondent thereby violated Section 8(aXl) of
the Act.
Duchesneau testified that in the latter part of December
or early January he asked Mello how come employee
David Rain, a burner service man, was chopping ice. Mello
replied that he was going to force Rain to quit because of
grievances he had taken up with the Union which involved
Mello.
Mello denied making any remark that he would force
anyone to quit . I credit Mello. Duchesneau gave other
testimony to support allegations that Rain was unlawfully
suspended. That testimony was incredible and I consider
this to be of a piece with it.
David Rain testified that in the latter part of December
he asked Mello why the employees were not going to
receive a Christmas bonus as they had the year before.
Mello told him that it was because the Union was trying to
get a contract. Mello said the employees would never get a
bonus or a contract.
Mello did not deny making the remark about the
Christmas bonus and I do not credit his general denial
concerning not signing a contract. I find the remarks to
Rain violative of Section 8(axl) of the Act.
Rain was absent from work because of illness in the
latter part of December. When he returned to work and
received his wages he discovered he had not been paid for
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the period he was absent from work. He had been paid for
a period of absence due to illness in March 1972, so he
went to Mello to ask about the matter. Mello told him he
had not been there long enough. Rain said he couldn't
understand such a reply since he had been paid when he
had less seniority. Mello said that was the way it was,
adding "with the Union trying to get in here, you don't
expect to be paid. Let the Union pay you."
Mello did not deny having the conversation described by
Rain and I find that his remarks implied to Rain that Rain
had not received sick pay because of the Union's presence
and they were therefore coercive and violative of Section
8(a)(1) of the Act.
Louis Duquette, a former employee of Respondent who
was not working at the time and was assisting the Union in
picketing Respondent, testified that in late January or early
February he met Mello in a nearby store and asked Mello
when Mr. Pescosolido would give the Union a contract.
Mello replied that as far as Pescosolido was concerned they
won't get one. Duquette asked why not and Mello said
because Pescosolido didn't like them and wanted no part
of them.3
Mello denied having such a conversation as Duquette
described, but I credit Duquette. However, I do not find
the statement violative of Section 8(a)(1) of the Act
because Duquette was not an employee of Respondent,
nor an applicant for employment.4 He was merely assisting
the Union in picketing Respondent and I fail to see how
Mello's remark could tend to interfere with his exercise of
Section 7 rights.
Joseph Collins, a retail fuel oil driver, testified that Mello
told him on numerous occasions that there would never be
a contract at Valley Oil, that "the old man would never
sign a contract. He would go out of business first."
Mello did not specifically deny Collins' testimony. I
credit Collins and find that Mello's remarks were violative
of Section 8(a)(1) of the Act.
2. Richard Pescosolido
Richard Pescosolido (hereinafter referred to as Richard),
is vice president of Respondent. According to employee
Jeffrey Hodges, on the second day of the strike he went
into the company office to pick up picket signs inadvert-
ently left there. He testified that Richard asked him if he
knew what he was doing and Hodges said yes. Richard told
him he was out of a job and "Consequently, he was fired."
Richard denied making such remarks. He testified he
asked Hodges if he knew the consequences of the strikers'
actions, that according to his information "it could mean
they could lose theirjobs because of it."
I credit Richard's version of what was said and I find
that his admitted remarks were unlawful. Richard may
have had in mind that economic strikers could be replaced,
but he did not tell Hodges he might be replaced. He
implied the possibility of discharge because Hodges had
gone out on strike. Such an implied threat is coercive and
violative of Section 8(a)(1) of the Act.
B. The Alleged Discriminatory Conduct
The complaint alleges that Respondent violated Section
8(a)(1) and (3) of the Act in a number of ways, including
discharges, changes in working conditions, subcontracting
of work, and denial of overtime. Certain of the discrimina-
tory conduct is alleged to have also been violative of
Section 8(a)(5) of the Act, because of its unilateral aspect.
Under this heading, I dispose of the discharges and
allegations that employees were provided less work than
normal. The remaining allegations of discriminatory
conduct are disposed of under the refusal-to-bargain
heading.
1. The discharges
a. Raymond Holland
As noted earlier, Holland was hired as a part-time driver
on or about November 3. It has been described how he
claimed to have been offered full-time employment by
Mello on December 28 and how he allegedly expressed an
interest in signing up with the Union. Thereafter, he did
not receive full-time employment. To the contrary,
Holland was not used by Respondent after January 6,
1973, and he was, in effect, terminated.
General Counsel contends that Holland was denied full-
time employment and thereafter terminated because he
had expressed interest in the Union. Since Mello denied
offering Holland full-time employment, Respondent of-
fered no explanation of its failure to give him full-time
employment, but the explanation is clearly bound up with
its explanation for terminating him. That explanation was
stated in terms of lack of work, but was refined to include
incompetence. Although the conclusion is not free from
doubt, I conclude that General Counsel has failed to
establish by a preponderance of evidence that Holland was
denied full-time employment or terminated for discrimina-
tory reasons.
My conclusion is based in large part on the fact that
there is record support for Respondent's explanation for
terminating Holland. Thus, in the week ending December
30, of the four tank-trailer drivers, only Widgren worked in
excess of 44 hours and that was only by 1-3/4 hours. In the
week following that, there was very little overtime worked
by the full-time drivers, yet Holland only worked 13-1/4
hours. These figures certainly do not indicate a need for
Holland's services on a full-time basis. The record does
indicate that during the same period of time Respondent
was subcontracting delivery work which it could very well
have assigned to Holland, and, in other circumstances, I
might have been persuaded that its failure to do so was
attributable to Holland's expressed interest in the Union.
In the circumstance of this case, however, I am persuaded
that Respondent did not follow through on Mello's inquiry
of December 28 about Holland's desire for full-time
employment, because it concluded that Holland was not a
satisfactory employee. This conclusion is based on Hol-
land's own testimony that on his last delivery he had
trouble and had to call Mello for help. About a week later,
3 The Pescosolidos are the owners of the busmess.
4 Compare San Tanksley Trucking, Inc, 198 NLRB No 45
VALLEY OIL CO. 375
when Holland called about work Mello told him Respon-
dent would no longer use him because of some damage to
cars . Holland has a crippled leg and Mello testified that
other drivers had commented to him critically about
Holland's ability to do the work. This testimony was
uncontradicted and finds some support in Holland's
difficulties on his last delivery and in testimony of Robert
DeRusha, the Union's representative, of discussions with
Respondent about Holland having backed into a tree. As I
view the matter , the last incident in which Holland was
involved caused Respondent to reconsider any thought of
employing Holland on a full-time basis and instead
convinced it that it was better not to employ him at all.
According to Holland, this was precisely what he was told.
In short, I conclude that General Counsel has failed to
establish by a preponderance of evidence that Holland was
denied full-time employment or discharged for discnmina-
tory reasons. In reaching this conclusion, I have considered
the January 18 incident when Mello was asked by Holland
whether he was fired or laid off and Mello replied by
pointing to the picket line. As Holland had been terminat-
ed before the picketing began, I do not see how this
postdischarge remark which I have found to be violative of
Section 8(a)(1) could convert the lawful discharge into an
unlawful one.
b. Jeffrey Hodges
Hodges was hired on December 19, 1972. On February 7,
1973, he was discharged for the asserted falsification of his
employment application with respect to whether or not he
had ever been arrested. The employment application form
used by Respondent bears the question "Have you ever
been arrested." According to Respondent and as Mello
testified , Hodges answered this question by a check mark
in the "No" box although he had not only been arrested,
but even more had been convicted of breaking and
entering a building at night with intent to commit larceny.
According to Hodges, fearing he would not be hired if he
answered the question truthfully, he simply did not answer
the question at all.
Hodges' discharge poses two questions: did he falsify his
employment application and, if so, was this the real reason
for his discharge. I conclude that Hodges falsified his
application. This conclusion is based on credited testimony
of Mello and the Xerox copy of Hodges' employment
application. While Mello was not a wholly credible witness,
neither was Hodges who admitted to an arrest which he
said was for using drugs but neglected to mention the
conviction described above. Apart from that, I cannot
believe that had he left the question unanswered Mello
would have overlooked the omission and ignored it. Even
if Mello was careless in a matter such as this, Hodges
would have no reason to believe he would be and his
omission would not serve the very purpose for which he
asserts he omitted an answer; rather, the omission would
provoke more questions.
Although I find that Hodges falsified his application as
asserted by Respondent, the question yet remains whether
the employer's dominant motive in discharging him was
the asserted falsification or union animus. N.LR.B. v.
Fibers International Corp., 439 F.2d 1311 (C.A. 1, 1971).
The answer to that question is rarely an easy one. In this
case, there is no prior history of discharges for similar
cause, but this proves nothing because there is no evidence
any other employee gave similar cause . The record
indicates that employees are covered by a blanket bond
and that Respondent neither makes, nor authorizes, an
investigation to determine whether employees have arrest
records. Such evidence suggests Respondent has a minimal
concern about this subject matter, and arguably Respon-
dent should have only minimal concern about a falsifica-
tion. Such a rationale for finding Hodges' discharge
unlawful is untenable because it would require substitution
of the Board's judgment for that of Respondent as to what
constitutes good cause for discharge.
There is no question, then, that Hodges' falsification of
his employment application constituted good cause for
discharge. However, in my judgment, this was not
Respondent's real reason for discharging him. According
to Respondent, it discovered Hodges' arrest record
accidentally when a policeman surveying the picket line
remarked to Mello, in effect, that it was not surprising
there was violence on the picket line in view of the criminal
record of Hodges. This remark assertedly led to an
examination of Hodges' employment application, discovery
of the falsification and his discharge.
Although I credit the testimony about the discovery of
Hodges' criminal record, I do not credit the testimony that
the falsification of the application was the reason for
discharge. The accidental discovery of Hodges' criminal
record occurred on or about January 17 or 18, and
presumably Respondent discovered the falsification short-
ly thereafter, yet Respondent did not discharge Hodges
until February 7. The delay in action might not be viewed
as significant were it not for the fact, as will be described
below, that Hodges' discharge coincided with the unlawful
discharge of four other employees on the same day. In
addition to this circumstance, there is the evidence
consisting of the testimony of Carl Pescosolido, Sr.
(hereinafter referred to as Carl) that when Respondent
learned about Hodges ". . . our people began to check all
the employment applications." The fact that Respondent
would conduct such a search to discover grounds to
discharge other strikers argues strongly that what had been
discovered in Hodges' case was seized upon as a pretext to
discharge hun because of his protected activities. Further
proof of this unlawful motivation is the evidence consisting
again of Carl's testimony that one of Respondent's
attorneys advised Respondent to notify him if Hodges was
seen on the picket line because the attorney had been in
touch with the probation officer who had apparently told
Hodges to get off the picket line and find himself a job.
Such conduct designed to interfere with Hodges' protected
activities indicates clearly that Respondent was unlawfully
motivated in discharging Hodges. I so find.
c. Edward Duchesneau
Duchesneau went on strike on January 15. On February
7, Respondent notified him by letter that he was being
discharged for serious strike misconduct. The only eviden-
ce of stake misconduct consists of the testimony by
Duchesneau that, about January 17, he was picketing at a
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bulk station when one George Sheldon, at times an
independent contractor who did oil burner service work for
Respondent and at other times an employee, arrived
driving a retail fuel oil truck (which was Duchesneau's type
of work.) Duschesneau told him he didn't mind Sheldon's
doing boiler work, "but please don't drive an oil truck.""
Sheldon made a vulgar remark and Duchesneau replied in
kind and said "I will kill you ..." Sheldon was carrying a
picket sign, nothing else , and made no movements to
implement his words. No other evidence of strike miscon-
duct involving Duchesneau was adduced.
As the Board has indicated the statutory right of
employees to strike, picket, and engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection "would be unduly jeopardized if
all forms of misconduct occurring in the course of a strike
would deprive the employee of the protective mantle of the
Act, without regard for the seriousness of such conduct."
The Blair Process Company, Inc., 199 NLRB 194.
In the instant case, Duchesneau's threat if uttered
seriously would constitute serious misconduct. However,
the threat was clearly not uttered seriously as evidenced by
the fact that it was not accompanied by any physical acts
of misconduct, either then or later; rather, Duchesneau's
threat was just an angry retort provoked by Sheldon's
vulgarity .5 Under the circumstances , Duchesneau's con-
duct was not such as to deprive him of the protection
afforded strikers by the Act, and by discharging him
Respondent violated Section 8(axl) and (3) of the Act.
d. David Rain
David Rain was hired in September 1971. In June 1972,
he was laid off for an asserted lack of work. On October
25, in settlement of an unfair labor practice charge he was
reinstated with backpay of $2,700.
Prior to his termination, Rain had performed a variety of
jobs but was principally employed as an oil burner
repairman. He testified without contradiction that before
his termination a service truck was assigned to him on a 24-
hour 7-day per-week basis for use on service calls. When he
was reinstated, Mello gave him the keys to the truck, but he
told Rain that he had to turn them in at the end of each
day. When Rain asked about this restricted usage Mello
told him that "because of union activities I wasn't allowed
to use the truck at night." Mello told Rain that George
Sheldon, who had been employed to do oil burner repair
work as a subcontractor after Rain's termination in June,
would use the truck for night service calls.
After his reinstatement Rain performed oil burner repair
work, but was assigned none of the other types of work he
had previously performed (e.g., pump repair, piping work,
electrical work). He was not receiving full-time employ-
ment and in early November he complained to the Union.
His complaint appears to have been adjusted in that
Respondent agreed to provide him with 44 hours of work
per week. Thereafter he was assigned menial tasks (Rain's
words) such as chopping ice in the driveway, shoveling
snow, cleaning up the premises , and fetching coffee for
Mello.
On January 5, 1973, Rain was assigned to wash a fuel
truck. According to Rain, there was no cap on the gasoline
tank, and in the course of washing the truck, water got into
the truck's gasoline tank . Rain reported this fact to Mello
who told him to ignore it and continue about his work.
Later, it developed that a substantial amount of water had
gotten into the gasoline tank and unsuccessful efforts were
made to dry the water out and eventually the truck had to
be towed away for repair. On January 9, Rain was
suspended for 1 week because of this incident . Rain had no
occasion to work thereafter because he joined the strike
that began on January 15, 1973. On February 7, 1973, Rain
was terminated because Respondent claimed to have hired
a permanent replacement.
The complaint alleges that Respondent discriminated
against Rain a variety of ways: by assigning him to more
arduous or less agreeable work after his reinstatement on
October 25, by denying him sick leave in December, by
suspending him on January 9, and discharging him on
February
Rain's case had its genesis back in June when he was
terminated for the asserted reason of lack of work. At the
same time he was terminated, Respondent subcontracted
his work to George Sheldon. Thereafter, an unfair labor
practice charge was filed and it was settled by an
agreement by Respondent to reinstate Rain to his former
or substantially equivalent job with backpay of $2,700.
According to General Counsel, this background informa-
tion is sufficient to illustrate that his June discharge was
discriminatory. I do not agree.
"The Board has uniformly held that settlement agree-
ments . . . have no probative value in establishing that
violations of the Act have occurred and may not be relied
on to establish either union animus or a proclivity to
violate the Act." Southwest Chevrolet Corp., 194 NLRB 975.
General Counsel has not really shown much else than the
settlement agreement insofar as Rain's June discharge was
concerned. True, he showed that simultaneously with
discharging Rain for lack of work Respondent hired a
subcontractor to perform his work thereby suggesting that
lack of work was not the real reason. However, according
to Rain's own testimony, he had not been involved in
union activity before his June discharge . That circum-
stance detracts from the assertion that his June discharge
was discriminatory.
In the final analysis, the question of Rain's June
discharge was not fully litigated, and the record is
insufficient to support a finding even for background
purposes that Rain was discriminatorily discharged in
June. This does not mean, however, that the terms of his
reinstatement are to be ignored, else one would have no
way of deciding whether he was assigned arduous and less
agreeable work for discriminatory reasons.
I start, therefore, with Rain's reinstatement on October
25. According to the settlement agreement , Rain was to
have been reinstated to his former job or a substantially
equivalent job. He was not. His testimony about the
5 Davis Wholesale Co., Inc., 166 NLRB 999. Firestone Tire 41 Rubber Co.,
187 NLRB 54, cited by Respondent , is factually distinguishable.
VALLEY OIL CO. 377
restrictions on his use of the truck when he returned to
work and how such use differed from prior practices was
uncontradicted and it indicates clearly that his reinstate-
ment was not to his former job. Moreover, as part of the
change, George Sheldon continued to perform Rain's work
and it was for this reason that Rain did not have sufficient
hours of work and was compelled to complain to the
Union. His complaint, however, did not result in a
correction of the problem by restoring his prior working
conditions . Instead , he was assigned to less agreeable tasks
to keep him busy.
Respondent contends that Rain was assigned to less
agreeable tasks to provide Rain with a 44-hour workweek
without, however, even addressing itself to its failure to
reinstate Rain in accordance with its agreement. It claims
there was insufficient work to keep him busy without
adverting to the fact that during the same period Sheldon
earned $873.50 in October, $901.55 in November, $759 in
December, and $1,092.90 in January 1973. Had the work
Sheldon performed been assigned to Rain, he would have
had less time to chop ice or wash trucks. It is significant
that during a comparable period the year earlier Rain had
worked overtime every week.
Respondent contends that one reason Rain was given
fewer oil burner service assignments was his failure to
perform his work properly. In this connection, it adverts to
written reprimands for conduct towards customers on
November 4 and 7, insubordination on November 9, a
pushing incident with Mello on November 24, and
maintenance of his truck on December 15. Rain denied
receiving the reprimands, but I do not credit him.
This does not mean that I accept Respondent's assertion
of the reason for not assigning Rain to more burner service
work. It is evident that Rain'was festering under the
discriminatory treatment accorded him by Mello from the
very day of his return to work, and on two occasions he
permitted this festering to enter into his job performance
where customers were concerned and on other occasions it
affected his relations with Mello and his performance at
the terminal. Such behavior was improper, but its impro-
priety must not be permitted to overshadow the original
source of his discontent; namely, his discriminatory
treatment.
As to the reason for the treatment accorded Rain, it is
clear that Respondent was motivated by animus against its
employees because of their union activities. Thus, Rain
testified that Mello told him on October 25 that the
restrictions on his use of the truck were because of the
union activities and his testimony was uncontradicted.
Whether the union activities were those of Rain or those of
all the employees as a group is immaterial. The record as a
whole indicates that Respondent entertained animus
against its employees as a group because they had voted
for the Union. This does not mean that Rain was not
himself a known union supporter. He and two other
employees had cast challenged ballots at the election and
all three challenges were overruled. When the ballots were
counted, all three were in favor of the Union. Respondent
therefore knew Rain's sentiments.
In summary, the record supports a finding that Rain was
not reinstated to his former job under the same conditions
existing prior to his June discharge , that the reason he was
not properly reinstated was because of Respondent's
animus against him and all its employees because of their
union activities, and that by reason of his improper
reinstatement Rain not only received fewer assignments
within his job classification and was required to perform
more arduous and less agreeable tasks to complete his
workweek, but also was deprived of overtime comparable
to that worked by him during the same period a year
earlier . Accordingly, I find that his assignments to less
desirable tasks and his loss of overtime arose out of his and
other employees' union activities and that Respondent
thereby violated Section 8(axl) and (3 ) of the Act.
The next allegation respecting discrimination against
Rain arose out of his absence from work for over a week
because of illness in December . Rain was not paid for the
period he was absent whereas he had been paid for an
absence due to illness in March . In view of that fact, he
asked Mello why he had not received sick pay on this
occasion . Mello told him he had not been there long
enough and Rain rejoined that he couldn't understand that
since he had received sick pay in March when he had been
employed an even shorter period of time. Mello replied
that was the way it was and that "with the Union trying to
get in here, you don't expect to be paid. Let the Union pay
you."
The foregoing is Rain's testimony which was not
contradicted. In light of Mello's remark, and considering
the fact that Rain had received sick pay in March, a
finding is warranted that the denial of sick pay on this
occasion was attributable to the employees' union activi-
ties; namely, the fact they had selected the Union to
represent them. According to Richard, Respondent had no
sick leave policy as such but rather handled absences due
to illness on a case-by-case basis. In Richard's judgment,
Rain was not deserving of sick pay in view of the fact he
had received sick pay in March and his poor work
performance. I do not credit Richard's explanation.
Significantly , this explanation was never given to Rain.
The only explanation he received was Mello's and that
explanation indicates Respondent 's unlawful motivation.
The next allegation involving Rain relates to the truck-
washing incident on January 5 when he got water into the
truck's gasoline tank and was thereafter suspended for 1
week. There is much record testimony about this incident
which I see no need to repeat. Rain claimed the water got
into the tank by accident. Respondent concluded Rain
deliberately put water into the tank. In my judgment,
Rain's testimony is incredible. Like Mello, I cannot believe
that water got into the tank as described by Rain. It
follows that he was guilty of misconduct and I conclude
that Respondent suspended him for that misconduct. In
reaching this conclusion , I have weighed the facts that
Rain had been the object of discrimination in other ways
as described above, that Rain was the one to report the
incident to Mello, and that before his suspension Rain was
not given an opportunity to discuss the incident with Carl,
who made the suspension decision . In my judgment, on the
facts reported to Carl by Mello, the conclusion that
misconduct was involved was so apparent no adverse
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inference may be drawn from the fact that Rain was given
no chance to discuss the incident.
The final allegation involving Rain relates to his
discharge on February 9 for the asserted reason that he
had been permanently replaced. As will appear below, the
strike herein was an unfair labor practice strike. For this
reason, Rain was not subject to being replaced and his
discharge on the ground he had been permanently replaced
was violative of Section 8(a)(1) and (3) of the Act.
e. Stanley Widgren and Norman Thompson
Widgren and Thompson were tank-trailer drivers who
went on strike on January 15, 1973. Like Rain, they were
discharged on February 7 on the ground they had been
permanently replaced. As in Rain's case, I conclude that
the discharges were violative of Section 8(a)(1) and (3) of
the Act because Widgren and Thompson were unfair labor
practice strikers not subject to replacement.
2. Less than normal employment
The complaint contains three allegations that Respon-
dent provided less employment to its employees in the unit
than they normally would have received, because of their
union activities.
Paragraph 13 alleges that "Respondent, since September
1972 and continuing to date, did provide to its employees
employed at its Haverhill facility less employment than
they normally would have received." As can be noted, the
allegation does not identify which employees were provid-
ed less employment, nor does the complaint indicate how
this was achieved. General Counsel's brief is silent about
this paragraph of the complaint and I have been unable to
determine what it refers to. I shall therefore recommend its
dismissal.
Paragraph 17 of the complaint alleges that "Respondent,
since September 1972 and continuing to date, did increase
its use of subcontractors to perform the work of unit
employees at its Haverhill facility thereby providing less
employment than they normally would have received."
This allegation is related to the complaint allegation that
Respondent subcontracted unit work unilaterally and it
will be disposed of below.
Paragraph 18 of the complaint alleges that "Respondent,
since September, 1972 and continuing to date, did use part-
time employees to perform unit work at its Haverhill
facility thereby providing less employment to full time
employees than they normally would have received." This
allegation relates to the retail fuel drivers and the tank-
trailer drivers.
Insofar as the retail fuel oil drivers are concerned,
General Counsel's evidence in support of this allegation
consisted of the testimony of driver Duchesneau that his
overtime was cut by the employment of part-time drivers
Shaw and Lauder, and the payroll records of driver Collins
showing that for a period of 5 weeks in November and
December he worked less overtime than the comparable
period in the preceding year.
In my judgment, such evidence was insufficient to
support the allegations of the complaint. In Duchesneau's
case, General Counsel did not establish how much
overtime Duchesneau worked in a comparable period the
preceding year. In addition, he did not establish when part-
time employees Shaw and Lauder were hired. It would
appear from Duchesneau's testimony that they were hired
in October or November, yet their names do not appear on
General Counsel's Exhibit 23 which I understood was a
record of regular and overtime hours of all drivers during
the relevant period. Shaw and Lauder did become part-
time drivers, but apparently at a later date.
In Collins' case, the mere showing that he worked less
overtime hours for a period of 5 weeks in 1972 than for the
comparable period in 1971 is insufficient to establish a
violation of the Act. The difference could be attributable to
factors other than the employment of part-time drivers.
More importantly , Richard testified that it was customary
to hire part-time fuel oil drivers during the winter season
because of the heavy demand for fuel oil and to reduce the
cost of overtime . Although Richard 's testimony is suspect
because he had not been working at the facility in prior
years , I credit it. General Counsel did not impeach the
testimony in any way, although presumably Respondent's
personnel records could have been produced to refute
Richard's assertions . In short, I conclude that General
Counsel has failed to establish by a preponderance of
evidence that the retail fuel oil drivers were denied
overtime for discriminatory reasons.
Insofar as the tank-trailer drivers are concerned, the
record indicates that in and after September , Respondent
employed four tank-trailer drivers. Raymond Holland was
hired on a part-time basis in November, as described
earlier and first worked in the payroll period ending
November 18. A review of the payroll records (G.C. Exh.
23) shows a substantial reduction in the hours of work of
the tank-trailer drivers after Holland was employed.
According to Richard, the drivers were working an
excessive number of hours in violation of ICC regulations
and Holland was hired to remedy that situation. However,
according to General Counsel's Exhibit 23, between
September and the date Holland first worked, there had
only been seven instances when drivers worked in excess of
60 hours, and the excess was generally minimal. After
Holland started working, there were five such instances.
Thus, the employment of Holland did not serve the
purpose for which he was assertedly hired. It did, however,
serve to reduce the number of hours worked by the drivers
as a group , and in the case of driver Dubois so much so
that he quit. Based on these facts , plus Mello's remark to
Holland when he hired him and the fact that thereafter (as
discussed below) Respondent subcontracted the same
work, I reject Richard's testimony and I conclude that
Holland was hired to reduce the overtime hours of the
tank-trailer drivers because the employees had selected the
Union to represent them.
C. The Alleged Refusal To Bargain
The complaint alleges that Respondent violated Section
8(a)(5) and (1) of the Act by making certain changes in
working conditions after the election without notice to or
consultation with the Union, by refusing to furnish
requested information, and by bargaining in bad faith with
no intention of reaching an agreement. As noted earlier,
VALLEY OIL CO. 379
the alleged unilateral changes in conditions of employment
are also alleged as violations of Section 8(a)(3) of the Act
and they are disposed of under this heading.
Preliminarily, it should be pointed out that there may be
some question as to, when certain alleged unilateral
conduct occurred in relation to either the August 4 election
or the October 11 certification. I have not distinguished
between postelection and postcertification conduct be-
cause Respondent's obligation to recognize and deal with
the Union arose on August 4 when a majority of the
employees voted for the Union, and not at the later date of
certification. N.LR.B. v. Laney & Duke Storage Warehouse
Co., 369 F.2d 859, 866 (C.A. 5, 1966).
1. The changes in conditions of employment
notice to, or bargaining with, the Union, it violated Section
8(a)(5) and (1) of the Act.
In addition, by discontinuing its policy of providing
uniforms, Respondent violated Section 8(a)(1) and (3) of
the Act. This conclusion is based on the fact that the policy
had been of long standing and that it was discontinued
after the employees selected the Union as their collective-
bargaining representative without any claim of business
justification. The withdrawal of a benefit without explana-
tion after employees selected a union as their collective-
bargaining representative warrants the inference that the
withdrawal was motivated by the fact the employees had
made such a choice. The inference is compelling when one
considers it in the context of other changes in working
conditions made by Respondent during the same period as
discussed below.
a. Uniforms
Joseph Collins, a retail fuel oil driver employed by
Respondent for 17 years, testified that Respondent had
supplied the drivers with uniforms twice a year for as long
as he had been employed there. In the fall of 1972, he did
not receive a uniform and he asked Vincent Mello about it
and all he was told was that Respondent wasn't furnishing
them any more. The Union's contract proposal provided
that uniforms would be furnished by Respondent and the
matter was discussed at a negotiation meeting on Novem-
ber 14. Respondent took the position that' the employees
no longer wanted uniforms, and it would not agree to
furnish uniforms . On November 21, having checked with
the drivers, Robert DeRusha, the Union's chief negotiator,
reiterated the demand for continuation of the uniform
policy, but Respondent adhered to its position.
Respondent contends that it had no policy of providing
uniforms to its employees, except service station attendants
(who are not part of the unit herein). According to
Richard, Respondent had not issued uniforms to its drivers
for 1-1/2 to 2 years.
I do not credit Richard. I credit Collins' testimony that
the drivers had always received uniforms until the fall of
1972 when the policy was discontinued. In reaching this
conclusion, I note that Richard had not been employed at
Respondent's Haverhill facility until about October or
November, and his testimony about Respondent's policy
could not have been based on any personal knowledge. I
note further that when the subject was discussed in
negotiations, according to the uncontradicted testimony of
Robert DeRusha, the only reason advanced by Respon-
dent for not agreeing to a contract provision requiring it to
provide uniforms was that the employees did not want
them. Respondent did not assert to DeRusha that it had no
policy of providing uniforms. Finally, I note that Collins'
testimony about his conversation with Mello about
uniforms was undenied.
The furnishing of uniforms to employees is a condition
of employment which Respondent was not free to change
without notice to, or bargaining with, the Union. While the
subject was discussed in negotiations , this was after the
Respondent had discontinued furnishing uniforms and the
Union was entitled to notification prior to discontinuance.
As Respondent discontinued furnishing uniforms without
b. Christmas Bonus
According to General Counsel's Exhibit 14, every year
since at least 1966 Respondent has given a money
Christmas bonus to its employees. In 1972, none of the unit
employees, except Collins, received a bonus . It is undisput-
ed that Respondent did not discuss the subject with the
Union.
In defense of its conduct, Respondent contends that it
did not have a Christmas bonus policy. According to
Respondent, its monetary disbursements at Christmas were
not bonuses, but gifts, which were discretionary both as to
the amount and as to beneficiaries. Under these circum-
stances, Respondent contends on the authority of NLRB.
v. Katz, 369 U.S. 736 (1962), that it was precluded from
paying a Christmas bonus lest it be accused of unilaterally
granting employee benefits in violation of Section 8(a)(5)
of the Act.
It does, of course, merely beg the question to call
Christmas bonuses gifts. The question really is whether a
Christmas payment has been given over such a period of
time that it has become a part of the employees' wage
expectancy. Where that is the case, the continuance or
discontinuance of the bonuses is a bargainable matter.
N. L. R. B. v. Niles-Bement-Pond Company, 199 F.2d 713, 714
(1952). In light of the 6-year history of granting bonuses in
the instant case, it is clear that the subject of Christmas
bonuses was a bargainable matter.
Respondent's contention that it was relieved of any
obligation to bargain about the bonuses because the
administration of the bonus policy was invested with an
element of discretion is without merit. In Nello Pistoresi &
Son, Inc., 203 NLRB No. 108, the Board (Member
Kennedy dissenting) found that an employer who discon-
tinued a 2-year bonus policy of no perceptible formula
without notice to the union violated Section 8(a)(5) and (1)
of the Act. In Marland One-Way Clutch Co., Inc., 192
NLRB 601, the Board found that an employer 'violated
Section 8(a)(5) and (1) of the Act where he unilaterally
discontinued a bonus program where the amounts to be
paid each employee were based on a variety of factors such
as attendance , quantity and quality of work, and loyalty,
and evaluations were based, not on records, but on
management 's rememberance of a man 's performance. As
the Board stated in a recent decision where the issue was
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unilateral grant of merit increases, "An employer with
a past history of a merit increase program neither may
discontinue that program [as we found in Southeastern
Michigan ] nor may he any longer continue to unilaterally
exercise his discretion with respect to such increases, once
an exclusive bargaining agent is selected . N.LR.B. v. Katz,
396 U.S. 736. What is required is a maintenance of
preexisting practices, i.e., the general outline of the
program, however the implementation of that program (to
the extent that discretion has existed in determining the
amounts or timing of the increases ), becomes a matter as to
which the bargaining agent is entitled to be consulted." 6
Respondent here discontinued a longstanding policy of
granting bonuses and he did not consult the Union.
Actually, it is not clear whether Respondent's position is
that it discontinued bonuses because of fear of violating
law, or whether it actually continued the bonus policy but
did not disburse bonuses to unit employees (except Collins)
because they did not measure up to long-existing standards
of performance. Respondent appears to defend its conduct
on both grounds; yet, the two seem to me to be mutually
exclusive. In any event, inasmuch as all but one unit
employee did not receive a bonus the conclusion that
Respondent, in effect, discontinued the bonus policy as to
unit employees is inescapable. To find otherwise would
require a finding, as Richard's testimony suggests, that the
reason all but one employee did not receive a bonus was
that all but one had failed to perform at a level acceptable
or satisfactory to Respondent. Such a finding would have
no record support except Richard's testimony which I find
not worthy of credence especially where the record
indicates that in prior years no employee had been denied
a bonus because of his work performance. Furthermore,
the fact that all employees received bonuses in the past
indicates that the only discretion involved in the granting
of Christmas bonuses was in deciding how much to grant
employees with comparable seniority.?
In short, I find that Respondent discontinued its bonus
policy as to unit employees, without notice to the Union,
and that it thereby violated Section 8(a)(5) and (1) of the
Act.
As in the case of uniforms, there is also the question of
Respondent's motive in discontinuing the Christmas
bonus. Respondent did not ascribe its discontinuance of
the bonus to economic considerations (as, for example, in
Nello Pistoresi, supra ). Given the 6-year history of bonuses
and the lack of any economic justification, the fact that the
bonus was discontinued the first Christmas after the Union
was certified supports an inference that the bonus was
discontinued because the employees selected the Union as
the collective-bargaining representative. Richard's testimo-
ny that a bonus was not given to unit employees because it
might be construed as a bribe is, in my judgment,
tantamount to an admission that the discontinuance of the
bonus was predicated on unlawful considerations. It is
abundantly clear that Respondent entertained no fears that
continuing its bonus policy would subject it to a charge of
bribery. During the same time span , Respondent was
meeting with the Union to discuss a contract and other
matters. It obviously could have easily put any fears to rest
by mentioning the issue to the Union. It consciously
refrained from doing so. In my judgment, the only
inference to be drawn from the record is that Respondent
discontinued the bonus as a reprisal against its employees
for selecting the Union as the collective-bargaining
representative .8
c. Sick leave policy
The complaint alleges that, in December 1972, Respon-
dent unilaterally discontinued its sick leave policy to
certain of its employees . The only evidence of a sick leave
policy adduced by General Counsel was the testimony of
David Rain discussed earlier wherein I found that he was
denied sick pay in December because of union activities. It
does not follow , however, that the same denial of sick leave
to Rain constituted a unilateral change in sick leave policy.
According to Respondent, it had no official sick leave
policy. Richard testified that pay for absence due to illness
was made on a case-by-case basis depending on length of
service and satisfactory work performance . According to
this practice, Richard testified that employees other than
Rain were absent from work due to illness and they did not
receive sick pay. General Counsel offered no evidence to
contradict Richard. While I am not persuaded by Rich-
ard's testimony that Respondent had no sick leave policy,
there is no evidence of the terms of any sick leave policy,
and Richard's testimony about the method for administer-
ing sick leave pay was not impeached . Accordingly, I
conclude Respondent's failure to grant sick leave pay to
Rain in December did not constitute proof of a unilateral
change of policy in violation of Section 8(aX5) and (1) of
the Act.
d. The subcontracting of work
The record indicates that, since the election in which the
Union was designated collective -bargaining representative
for the employees in an appropriate unit, Respondent has
subcontracted certain unit work . The record further
indicates that Respondent had subcontracted certain work
in the past , but General Counsel contends that, beginning
in September 1972, Respondent increased its use of
subcontractors. He contends that Respondent violated
Section 8(axl), (3), and (5) by reason of this increased use
of subcontractors because Respondent acted unilaterally
and for discriminatory reasons.
Except for gasoline transport and delivery , Respondent
denies that it has increased its use of subcontractors. As to
6 Oneita Knitting Mills, Inc., 205 NLRB No. 76, fn. 1
r These conclusions are based on my analysis of G.C. Exh. 14 which is
far from a model of clarity . The exhibit, prepared by Respondent's
bookkeeper, was received into evidence by stipulation and neither party
offered to explain the entries thereon, such as the fact that certain names
were crossed out and a second name substituted , and in some cases there
are blanks or marks indicating no bonus was paid . Nevertheless, in my
judgment, a fair reading of the exhibit leads to the conclusion that all
employees had received Christmas bonuses since 1966 until 1972 , except
employees who had not been employed long enough . Although Richard
testified employees had been denied bonuses in the past for poor work
performance he did not identify a single one whose name appeared on the
exhibit and was evidently referring to other operations of Respondent.
b 1 have noted above that Collins was an exception and received a
Christmas bonus. Such an exception does not militate against the findings
above when one considers that he was an employee of 17 years ' standing.
VALLEY OIL CO. 381
gasoline transport and delivery, it contends that any
increase occurred after December 17, 1972, was motivated
by business needs, was discussed with the Union, and
resulted in no significant detriment to the unit employees.
The kind of work about which the issue over subcon-
tracting exists is bulk fuel delivery, pump repair work, oil
burner service, and gasoline hauling and delivery.
Bulk fuel: The record indicates that Senter Transporta-
tion made bulk deliveries of fuel oil for Respondent on a
regular basis since January 1971 and General Counsel has
failed to point out wherein Respondent's subcontracting of
this type of work was unlawful. I find no violation.
Pump repair: The record indicates that Respondent had a
history of subcontracting some pump work and other work
related to the construction or functioning of gasoline
service stations . Since at least September 1971, Respondent
had used the services of Zecco, Inc., and in June 1972 it
had begun the use of Allied Pump & Tank Service, Inc.
According to General Counsel, David Rain was qualified
to do work of the type subcontracted to Zecco and Allied
and had in fact done such work for Respondent in the past.
I am not persuaded, however, that that fact alone would
justify a finding that Respondent violated either Section
8(a)(3) or (5) in subcontracting the work described in
General Counsel's Exhibit 15(b) and (c). That work
appears to have been more than routine pump repair work.
Richard gave testimony to that effect and that the
subcontractors were better qualified to do such work than
were Respondent's employees, including Rain. There is
nothing in the record to justify my rejection of his
testimony. As the subcontracting was a continuation of
similar subcontracting before the Union was selected by
the employees, and as I deem the evidence insufficient to
support a finding of discriminatory motive, I shall
recommend dismissal of the complaint allegations relating
to the subcontracting to Zecco and Allied.
Respondent also subcontracted pump repair work to
Armand Samoisette in January 1973. This was work
normally done by a regular employee who had been
incapacitated by an accident and Rain could have
performed this work. In fact, he had trained the disabled
employee. Moreover, in his principal line of work (burner
service repair) Rain was less than fully occupied. In my
judgment, the subcontracting of this particular work,
which was the type of work regularly performed by unit
employees, was a clear departure from past practice.
Inasmuch as the record fails to show that Respondent gave
any notice to the Union of its decision to subcontract the
work, and as the subcontracting had a direct relationship
to the amount of work available to a unit employee, I
conclude that the subcontracting to Samoisette was
violative of Section 8(aX5) and (1) of the Act.
Respondent has not expressly explained why it subcon-
tracted this work to Samoisette, instead of assigning it to
Rain . From its arguments respecting Rain 's assignment to
menial tasks set forth above, it is evident that Respondent's
position would be that Rain was not performing his regular
duties in a satisfactory manner. I have rejected that
position earlier for reasons given. I would add that, prior to
his reinstatement on October 25 and the discriminatory
treatment accorded him thereafter, Rain was a satisfactory
employee . Both Richard and Mello were critical of him,
but Richard was in no position to know about Rain's
performance, because he was not employed at the
Haverhill facility before October and Mello 's criticism was
more of his attitude than his competence . Significantly,
Rain had not received a written reprimand until after his
reinstatement . On the record as a whole, I conclude that
Respondent subcontracted work to Samoisette as part of
its pattern of discrimination against Rain in reprisal for his
support of the Union and the employees' selection of the
Union as the bargaining representative and that it thereby
violated Section 8(aX3) and (1) of the Act.
Burner service and repair: The record indicates that some
oil burner service and repair work was subcontracted long
before the election in which the Union was selected as
collective-bargaining representative : a burner was installed
by a subcontractor in 1971; between July and November
1971, burner cleanouts were subcontracted to one Al Hurd
who also handled service calls; Oil Burner Service handled
service calls in certain specified areas for several years. The
only oil burner repair work subcontracted out to a new
subcontractor in 1972 according to General Counsel's
Exhibit 19(a) does not appear to be that normally among
the duties of a burner service repairman . In short, none of
General Counsel 's exhibits on the subcontracting of oil
burner repair work supports a finding of a violation of
Section 8(aX5) and (1) of the Act.
In addition to the subcontracting set forth in the exhibits,
there is undisputed evidence of the subcontracting of oil
burner service work to one George Sheldon. This was
precisely the work which Rain had been performing.
However, Sheldon had become a subcontractor for
Respondent in June 1972, when Rain was laid off
assertedly for lack of work . In this circumstance, it cannot
be held that the initial subcontracting to Sheldon was
violative of Section 8(aX5) of the Act. Whether Respon-
dent's continued use of Sheldon after Rain was reinstated
in October was violative of Section 8(aX5) is another
question. According to DeRusha 's uncontradicted testimo-
ny, the use of Sheldon as a subcontractor was discussed in
the course of settling Rain 's case. When Respondent
agreed to reinstate Rain to his former position, the Union
understood this to mean that Respondent would discontin-
ue using Sheldon . Respondent continued to use him after
Rain was reinstated without notice to the Union. In my
judgment, Respondent's continued use of Sheldon after
Rain was reinstated may reflect on its good faith in settling
Rain's case and on its motive in using Sheldon , but I fail to
see where there can be said to have occurred a unilateral
change in conditions of employment . In short, I consider
that the continued subcontracting to Sheldon after October
25 was not violative of Section 8(aX5) of the Act.
As to Respondent's motive in continuing to subcontract
to Sheldon after October 25, the record supports a finding
that Respondent was motivated by union animus. Respon-
dent never did explain why it continued to use Sheldon. It
did not dispute DeRusha's understanding of the settlement
of Rain's case . Yet, as I have already described, at the
instance of his reinstatement Rain was restricted in his use
of the service truck because Sheldon would handle the
night service calls Rain had previously handled, and, as
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mello told Rain, the reason for this was "union activities."
Under the circumstances, I conclude that the continued
subcontracting to Sheldon after October 25 was violative
of Section 8(a)(3) and (1) of the Act.
Gasoline hauling and delivery: According to Respondent,
it has a history of subcontracting this type of work, and the
only matter for consideration is its alleged increase in the
amount of subcontracting.
Apart from the period of January 1, 1971, to June 1,
1971, when Senter Transport delivered all of Respondent's
gasoline, Respondent has no significant history of subcon-
tracting this type of work. On the contrary, after it
canceled its arrangement with Senter Transport in June
1971 and reacquired the equipment, Respondent subcon-
tracted gasoline deliveries on only three occasions between
July 1971 and October 1972. After October 1972, more
precisely in mid-December 1972 and thereafter, Respon-
dent subcontracted on a regular basis to S & H (70
deliveries between December 19, 1972, and January 16,
1973) and on a few occasions to Appleyard's, Merrill
Transport, and Brewer Petroleum. Thus, it is clear the
Respondent increased the subcontracting of gasoline
hauling after the election to such an extent that it
constituted more than a mere extension or continuation of
a long established practice. Union Carbide Corporation, 178
NLRB 504, and Shell Oil Company, 166 NLRB 1064, on
which Respondent relies are factually distinguishable.
Respondent asserts that it discussed the subcontracting
with the Union and cannot therefore be found to have
acted unilaterally. This assertion is not supported by the
record. True, there were discussions of the subcontracting,
but, as DeRusha testified, any discussions of subcontract-
ing were initiated by him and were occasioned by the
discovery by the drivers of new subcontracting of their
work. The duty to bargain is not fulfilled by discussions
after the fact. Moreover, discussions may not be a correct
description of what occurred at the bargaining table
because DeRusha's complaints were met by disclaimers.
Accordingly, I conclude that Respondent did not notify, or
consult with, the Union about his subcontracting.
Respondent also asserts that the subcontracting of this
particular work did not result in a significant detriment to
unit employees, but the record indicates otherwise. Thus,
an analysis of General Counsel's Exhibit 23 indicates that
after September 6, 1972, the total hours of work of the
gasoline drivers had increased to a point where every week
they exceeded 200 hours. During the week ending
November I1 the hours of work totaled 222-1/2; Novem-
ber 18, 243-3/4; November 25, 266; and December 9, 242.
Thereafter, the total hours decreased substantially, and the
drivers received less work. Thus, contrary to Respondent's
assertion , there was a significant impairment of unit work
because of the subcontracting.
In short, I find that Respondent violated Section 8(a)(5)
and (1) of the Act by subcontracting gasoline hauling and
delivery without notice to, or consultation with, the Union.
As with the other subcontracting and unilateral changes
in conditions of employment, there is the question of
Respondent's motive in subcontracting gasoline delivery.
According to Respondent, in mid-December, it was
experiencing a slowdown by the drivers. Drivers began to
call in sick, were late for work, or just simply failed to
report for work. Deliveries were not made and customers
complained. To remedy the situation, Respondent subcon-
tracted some gasoline deliveries, particularly, those with
critical delivery times.
The foregoing assertions are based on the testimony of
Richard, which Respondent states in his brief was
unrefuted by General Counsel. In my judgment , Richard's
testimony is not deserving of any credence . Significantly, it
was not supported by a single piece of documentary
evidence, either in the form of correspondence with
customers about complaints, trip records , work summaries,
or personnel records of the drivers. Richard asserted that
Respondent had to pay $100 penalties because of late
deliveries, yet no record was submitted to show the
payment of any penalties, although presumably this would
be reflected in company records. As to absences, Richard's
testimony is belied by General Counsel's Exhibit 23 which
shows two absences for sickness for driver Norman
Thompson and one for Skinner in October. There are no
notations of other absences thereafter. Finally, there is the
admitted and wholly inexplicable failure of Respondent to
warn or reprimand any of the drivers for engaging in a
slowdown.
Under all the circumstances, including Respondent's
other unfair labor practices, a finding is warranted that the
subcontracting was motivated by Respondent' s animus
against its employees for having selected the Union as their
collective-bargaining representative and was, therefore,
violative of Section 8(axl) and (3) of the Act.
2. The refusal to furnish information
On January 4, the Union requested that Respondent
furnish it with payroll data showing the number of
employees employed between April 1, 1971, through
March 30, 1972, and records showing current employees.
Respondent admittedly has refused to furnish the informa-
tion.
It is undisputed that the Union requested information
about the number and names of Respondent 's employees
because a dispute had arisen in negotiations over whether
Respondent's operations were subject to the 5. 5-percent
wage increase guidelines then in force under Phase II of
the Government's wage and price control regulations.
According to the Union, which was requesting wage
increases in excess of the 5.5-percent guidelines , Respon-
dent's employees were insufficient in number to render
Respondent subject to the wage control guidelines.
Respondent contended otherwise and the Union 's request
was aimed at resolving the issue. Thus, the request was
clearly relevant to negotiations at the time it was made.
However, on January 11, 1973, Phase III went into effect
and the 5.5-percent guidelines were no longer applicable.
Deeming the Union's request for the information moot, the
Respondent refused to supply the information.
Respondent contends that its refusal to furnish the
information was not unlawful because changed circum-
stances had rendered the information sought irrelevant to
any issue pending in the negotiations. I agree.
As Respondent points out, while certain information
(e.g., wage) is presumptively relevant because it bears,
VALLEY OIL CO. 383
directly on the negotiation of a collective-bargaining
agreement, other information may or may not be relevant
depending on the circumstances. Southwestern Bell Tele-
phone Co., 173 NLRB 172. In the instant case, names and
number of all current unit and nonunit employees was
information which was not presumptively relevant. The
Union knew the name and number of the unit employees,
and the only reason it wanted information on a broader
basis was because of the dispute over wage control
guidelines. As those guidelines changed after its request the
information was no longer relevant to the issue which had
given rise to the request. The Union has adhered to the
request despite the change in wage control policy, but no
reason has been given for its doing so and no showing has
been made of any relevant purpose different from that for
which the information was initially requested. Accordingly,
Respondent's refusal to supply the information was not
violative of Section 8(a)(5) and (1) of the Act.
3. The alleged bad-faith bargaining
a. The facts
As noted above, the Union was certified on October 11.
The first negotiating meeting was held on November 7.
After that date, 16 negotiation meetings were held, the last
on March 2, 1973. Eleven meetings were held between
November 7 and January 9, 1973. On January 15, the
employees went on strike and, thereafter, there were six
more negotiating meetings between January 22 and March
2. In the prestrike negotiations, Respondent was represent-
ed by Carl and Richard and in the poststrike negotiations
Respondent 's principal negotiator was attorney Arthur
Menard. The Union's principal negotiator was Robert
DeRusha who is the principal source of evidence about the
negotiations . Both Carl and Richard testified, but Carl said
nothing about the negotiations and Richard's testimony
did not go much beyond contradicting DeRusha about
certain agreements assertedly reached and rescinded. The
account that follows is essentially that of DeRusha, whom
I credit.
At the first meeting on November 7, the parties agreed to
go through the various provisions of the Union's contract
proposal leaving monetary items last. Agreed provisions
were to be so marked. Proposals on which agreement was
not reached or raising legal questions were to be referred
by Respondent to counsel for advice. The first four pages
of the proposal were covered at this meeting and the
remainder at the next meeting on November 14. According
to DeRusha several articles of the proposed agreement
were agreed to in these two meetings, including a union-
security provision.
At the third meeting, November 21, the first subject to be
discussed was holidays. The Union understood Respon-
dent had a policy of nine paid holidays and it was
requesting Patriots Day as a 10th holiday. Richard
disputed that the Respondent provided nine holidays,
checked with the bookkeeper, and reported that Respon-
dent provided only eight holidays. He offered to add
Columbus Day (which the Union thought the employees
already had) and proposed Washington's Birthday for
Patriots Day. Richard also proposed attendance require-
ments to qualify for holiday pay. There was a long
discussion on rates of pay with Respondent proposing a
break-in rate whereby new retail drivers would get a lower
rate while learning the route.
The next meeting was on November 22, and Respondent
agreed to level the rates of pay of all bulk tank drivers at
$3.50 per hour and that of the retail drivers at $3.25 per
hour and to add to both groups an 11-percent increase.
The parties agreed to a 2-year contract with a tentative
increase of 6 percent for the second year depending on the
agreement reached on fringe benefits, with $6 being the
minimum increase for the second year. Standby pay of $6
per day and double time for the first hour and time and a
half for successive hours for burner service men was agreed
to. A dispute arose over Rain's existing rate of pay with
Respondent contending his rate was $3 .85 per hour and the
Union contending it was $4 per hour. The dispute was not
resolved at this meeting. According to DeRusha, discus-
sions were prolonged by Richard's habit of making long
speeches.
The next meeting was on November 29 and at this
meeting it was agreed that the contract would be
retroactive to October 11, the date of the Union's
certification. There was a tentative agreement on a health
and welfare plan providing for $5,000 life insurance and a
$75 weekly disability benefit, but this agreement was not
finalized.
At the next meeting on December 6, there was a long
discussion again of Rain's rate of pay which does not
appear to have been resolved.
On December 13, using data obtained by Richard
himself, Respondent agreed to a $5,000 life insurance with
double indemnity as previously discussed and $75-a-week
disability payments for 26 weeks.
At the meeting of December 21, renewed discussion
occurred on holidays with Respondent still claiming,
despite the representations of the men, that Columbus Day
was not a paid holiday. On a discussion of vacation pay the
Company offered 45 hours' vacation pay. The Union
suggested that some men were getting more than this
naming driver Norman Thompson, but Respondent denied
it and represented that they would check it out with the
bookkeeper but never produced an answer . At this meeting
Respondent advised the Union that it was going to be
represented by a different attorney named Harold Mack.
At the next meeting on December 28, Respondent
changed its position regarding sick benefits . At this time
Richard proposed a weekly benefit based on a figure of 60
percent of the hours worked up to 40 hours a week. Under
this proposal the insurer would not be Aetna as previously
discussed but Connecticut General. Respondent had a plan
with Connecticut General covering all its employees and it
wanted to remain with that same insurer . DeRusha
requested a copy of the plan but was never able to get one
and procured one by sending one of the unit employees
into the office to get one . With regard to retroactivity,
Richard indicated that retroactivity would apply on wages
only, not on any fringe benefits . Previous agreement had
been on all benefits. With regard to standby pay, the
agreement previously reached was modified to provide
time and a half for the first hour, instead of double time.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this meeting, for the first time Respondent advised the
Union that any agreement reached was subject to the
approval of the board of directors who had final authority.
At the next meeting on January 3, there was renewed
discussion of holidays and Respondent admitted that
Columbus Day had been a paid holiday and it agreed to
add Patriots Day. There was discussion of health and
welfare and it was agreed that the Company would pay the
premium of $3.94 for the employees. Contrary to the
agreement earlier reached on a guarantee of reporting pay
on Saturdays and Sundays , Richard stated that there was
no 4-hour guarantee . As to the length of the contract, Carl
said that he didn't want a 2-year agreement, that he felt
that maybe at the end of the year he might want to call for
another election to see if the men still wanted the Union.
For this reason , the contract was to be of a 1 year's
duration.
The next meeting was on January 9. The record does not
indicate that anything occurred of significance other than
notification by Respondent that thereafter its attorney
would be Arthur Menard.
The next meeting was scheduled for January 11 but the
Respondent canceled it and the record does not indicate
for what reason.
When the meeting was canceled, DeRusha called
Menard's office and spoke to him about obtaining contract
language as had been promised to him in the past. Menard
told him that he had just received the case and had not had
an opportunity to prepare any language . A meeting was
arranged for the 16th, but it was never held, because on
January 15, the Union called a strike . On the 16th,
Attorney Menard called DeRusha and wanted to know
why he had not shown up for the meeting and DeRusha
informed him that the meeting was to be in the Union's
office . Menard suggested that they were going to bring
charges against the Union because DeRusha had not
shown up at Valley Oil for the meeting. DeRusha gave him
a rough outline of the number of meetings that they had
and that the last meeting had been held at Valley Oil and
the canceled meeting was to have been in his office and as
far as the Union was concerned so was the newly
scheduled meeting.
The first meeting with Menard was on January 22 and at
this meeting Menard presented a complete contract
proposal which differed from what had previously been
discussed and agreed to between the Union and Carl.
DeRusha asked Menard about the past 13 meetings and
Menard's answer was that everything started from scratch.
Menard indicated that he had the power to negotiate for
Respondent.
Among the subjects discussed were wages and in this
particular the Respondent offered a 3-percent increase
across the board and an additional holiday and a 1-year
agreement. Respondent would not agree to the leveling off
of wades . Among other changes were proposals for
Classifications A and B among retail and transport drivers.
Classification A would be someone with 3 years' service
and Classification B with less than 3 years. Retail drivers in
the A rate would get $3 .35 and in the B rate $3.05.
Transport drivers in the A rate $3.60 and in the B rate
$3.40. At this meeting, Menard said that the Company was
calling in the Federal mediator.
At a meeting on February 7, a final offer on wages was
made providing a rate of pay for transport drivers of $3.55
in the A classification and $3 .45 in the B classification.
Retail drivers in A classification $3.40, in the B classifica-
tion $3. 15. Maintenance man $3 .95, burner man $4.20.
Menard indicated the total cost of the offer was 5.8
percent.
On February 14; the employees rejected Respondent's
proposed contract . The record does not indicate that
anything of significance occurred at the March 2 meeting,
and thereafter the Union sought to meet but Respondent
declined to do so on the ground that an impasse existed
and that further meetings would be useless unless the
Union was prepared to make a substantial change in its
position.
b. Analysis and conclusions
In addition to his contention that Respondent engaged
in 8(aX5) conduct away from the bargaining table as
described above , General Counsel contends that Respon-
dent engaged in surface bargaining . This contention is
based on Respondent's general conduct in the negotia-
tions, with specific reliance on the asserted withdrawal
from agreements reached and Respondent 's failure to vest
its agents with authority to carry on meaningful bargain-
ing. The issue presented by these contentions is essentially
one of fact, and not of law, namely, on the basis of
Respondent's entire course of conduct may it be said that
it engaged in bargaining with a sincere intention to arrive
at an agreement with the Union. I conclude that it did not.
Before I set forth my reasons for such conclusion, I
would point out that I am not relying on the testimony
described earlier of Mello's statements to employees to the
effect that Respondent would never sign a contract.
While I have found the statements violative of Section
8(axl) of the Act, and while such statements are strong
evidence of bad-faith bargaining, I am not persuaded that
on the facts of this case the statements may be relied on to
support a finding of bad-faith bargaining . Mello is a
dispatcher and assistant to the manager in the operations
of the Haverhill facility. It is not the type of job which
would make him privy to the deliberations of the
Pescosolidos . He is a young man and not an employee of
many years service . He took no part in negotiations and he
denied having any knowledge of the Pescosolidos ' inten-
tions. Richard denied taking Mello into the Pescosolidos'
confidence about negotiations. While I have not found the
Pescosolidos ' or Mello to be credible in many particulars, I
am persuaded from the circumstances just outlined that the
statements made by Mello represented his opinion of
Carl's intentions about a contract, and, while it was an
accurate opinion, it was not based on reports to him by
either Carl or Richard and it affords no basis for finding
bad-faith bargaining.
When one considers the totality of Respondent's
conduct, there is ample basis for finding bad-faith
bargaining without having to rely on Mello's statements.
Respondent 's unilateral conduct has already been de-
scribed, and, as the Supreme Court indicated in N.LRB.
VALLEY OIL CO.
v. Katz, supra, while unilateral conduct does not necessarily
mean that an employer has been guilty of overall subjective
bad faith, such conduct ". . will often disclose an
unwillingness to agree with the union." In this case, not
only was there unilateral action but it concerned subjects
being discussed at the bargaining table , and when the
subjects were raised, as in the case of uniforms and
subcontracting, there was a complete lack of candor by
Respondent about its policies and its changes of policy. On
the subject of uniforms, Respondent merely said the men
did not want them . On the subject of subcontracting,
Respondent did not advance openly and candidly a
bargaining position to the effect that it had a practice of
subcontracting which it intended to adhere to. That has
been its position in this proceeding , but at the bargaining
table, according to DeRusha, and before Attorney Menard
entered the picture, it denied that it was doing any
subcontracting of deliveries except to meet special emer-
gencies . Such lack of candor is the antithesis of good faith.
Respondent's lack of good faith is also demonstrated by
its behavior with regard to holiday pay and Rain's rate of
pay. As to both these subjects, company records would
clearly have indicated how many paid holidays Respon-
dent provided and what Rain's rate of pay was. There was
no need for prolonged discussions about the facts, yet
Respondent did not accede to the correctness of the
Union's facts until late in the negotiations.
Another indication of bad faith was Respondent's failure
to give a position on contract proposals on which legal
advice was purportedly being sought . At the very outset of
negotiations , Respondent apparently refused to discuss
many provisions about which it professed to need legal
advice . Although such advice was allegedly sought, none
was obtained until after the strike had started and as a
result there could be no meaningful discussions on many
issues.
An additional indication of Respondent's bad faith is the
fact that , at the ninth meeting on December 28, Respon-
dent announced for the first time that any agreement
reached was subject to the approval of the board of
directors. The apparent explanation for this belated
announcement appears to be that prior to that date
Respondent did not know or anticipate that an agreement
would cost in excess of $5 ,000, and when it appeared that it
would Respondent notified the Union because its corpo-
rate bylaws require approval by the board of directors of
any pledge of corporate assets exceeding $5,000. If the
matter were as represented by Respondent, I would
nevertheless hold that its failure to give earlier notification
was part of its technique to forestall agreement . Respon-
dent did not have to await signs that an agreement would
cost in excess of $5,000 before giving notification of
limitations on the negotiators ' authority. In my judgment,
however, the situation is even more blatant than just a
failure to recognize the need of giving notification. While
Respondent is a corporate entity, it is essentially a family
enterprise, all directors being sons or daughters of Carl. In
reality, father Carl is the holder of final authority and any
reliance on corporate restrictions on his authority to
negotiate must be viewed as pretextuous.
385
Next to be considered are Respondent's changes of
position during negotiations . Thus, having once agreed to a
4-hour guarantee for work on Saturdays and Sundays, it
withdrew the agreement . Having agreed to a $5,000 life
insurance coverage and $75-a-week disability pay on
December 13, it changed its position on December 28.
Having agreed to retroactivity on all benefits on November
29, it changed its position on December 28. Having agreed
on November 22 to a 2-year contract, leaving open the
amount of the second year increase , Respondent on
Janusz 3 not only changed its position , but also,
according to uncontradicted testimony by DeRusha, gave
as its reason fora 1-year agreement that "maybe at the end
of the year he [Carl ] might want to call for another
election."
There is a suggestion in the record that the Pescosolidos
were inexperienced negotiators and that what they did
reflected that inexperience rather than bad faith . Accord-
ing to such an approach, Richard had no intention to
frustrate bargaining when he changed positions . According
to this approach, any agreements reached on specific
proposals were tentative and subject to agreement on a
complete contract and Richard was free to change
positions . But even under such an approach, the changes in
positions must be based on some development in the
negotiations and not merely because the negotiator
changes his mind. As I we it, this is what Carl and Richard
were doing and by so doing they were frustrating arrival at
a contract . When their behavior at the bargaining table is
weighed in the context of contemporaneous unilateral
conduct, the conclusion is inescapable that the bargaining
before the strike occurred was not good -faith bargaining.
The foregoing relates to Respondent 's prestrike negotia-
tions. What of its poststrike negotiations? In my judgment,
Respondent's bargaining posture after the strike cannot be
differentiated from its prestrike conduct . In fact, its
poststrike conduct served to block agreement on a contract
completely . Thus, at the very outset of the poststrike
negotiations, Attorney Menard informed the Union that
Respondent viewed the strike as a rejection of its earlier
offers and that he had been instructed to bargain tough
and that bargaining would start from scratch . Respondent
submitted a contract proposal which did in fact retain
some of its earlier proposals (e.g., 10 paid holidays), but its
proposal contained a substantial change in its wage offer.
Respondent also advised "` the Union at one of these
meetings that the strikers had been replaced and its
agreement to a union-security clause was withdrawn and a
maintenance-of-membership provision was substituted.
While an employer may be justified in withdrawing a
final offer which has been rejected and which has been
followed by a strike , there was no final offer before the
Union on January 15. As a matter of fact , man, issues had
not been discussed because Respondent had not submitted
contract language as promised on many of the Union's
proposals . The strike was not a rejection of Respondent's
offer, but an indication of the employees' discontent over
Respondent's bad-faith bargaining. The withdrawal of
prior offers under these circumstances , and the substitution
of a maintenance-of-membership provision for a union-
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security clause at the same time it is claimed that strikers
have been replaced are not acts designed to foster
collective bargaining.9
Respondent had a right to bargain tough, but when that
toughness is in reaction to a strike, when it has been
preceded by bad-faith bargaining, and when it occurs in
the context of other unfair labor practices, the conclusion
is warranted that its bargaining posture is designed to
frustrate collective bargaining, rather than legitimate hard
bargaining. I make such a conclusion here and find that
Respondent failed to bargain in good faith after the start of
the strike as well as before.
Finally, there is the matter of Respondent's refusal to
meet after the Union's rejection of its final offer unless the
Union changed its position. Respondent defends this
refusal on the ground that an impasse existed. However, an
impasse caused by a party's failure to bargain in good faith
is not a legally cognizable impasse and does not justify a
refusal to meet. North Land Camps, Inc., 179 NLRB 36. I
find, therefore, that Respondent's refusal to meet since
March 2, 1973, was a further refusal to bargain in violation
of Section 8(a)(5) and (1) of the Act.10
D. The Nature of the Strike
The complaint alleges that the strike was caused and
prolonged by Respondent 's unfair labor practices . Little
discussion of the allegation is required . I have found that
Respondent engaged in a variety of unfair labor practices
before the strike and after the strike. These unfair labor
practices were discussed by the employees at a meeting on
January 14 when they voted to strike, and it is clear that
there was a casual connection between the unfair labor
practices and the decision to strike. It is equally clear that
the strike has been prolonged by the Respondent's
continuing unfair labor practices.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section I,
above, occurring in connection with its operations de-
scribed therein , have a close , intimate , and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(axl), (3), and (5)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that the strike which commenced on
January 15, 1973, was an unfair labor practice strike and
was thereafter prolonged as such by Respondent's continu-
ing unfair labor practices, and as the strikers had not
abandoned the strike at the time of the hearing, I shall
recommend that Respondent be ordered, uvon the strikers'
application, to offer each striking employee immediate and
full reinstatement to his former job or, if his job no longer
exists , to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
to make whole for any loss of earnings strikers who have
made themselves available for employment on an uncondi-
tional basis but who have been refused reinstatement. In
the cases of strikers David Rain, Stanley Widgren, Norman
Thompson, Jeffrey Hodges, and Edward Duchesneau, as
they were unlawfully discharged, they shall not be required
to make applications for reinstatement and I shall
recommend that Respondent be ordered to offer them
reinstatement . However, as they were on strike at the time
of their discharge, they shall not be entitled to backpay for
the period of time they continued on strike and I shall
recommend only that they be made whole from the date
the strike ends or they abandon it and so notify
Respondent, whichever occurs sooner. Capitol-Varsity
Cleaning Co., 163 NLRB 1057, 1064.
As to Respondent's unlawful denial of sick pay to Rain
for his illness in December, I shall recommend that
Respondent be ordered to pay Rain the sick pay he would
have received but for the discrimination against him.
As to Rain's loss of overtime due to the subcontracting
to Sheldon and Samoisette, I shall recommend that he be
made whole for such loss by paying him the difference in
hours worked between the period of October 25, 1972, to
January 9, 1973, and the comparable period a year earlier.
As to the Christmas bonus, I shall recommend that
Respondent resume its policy and that all unit ern,?.oyees
who were denied the 1972 Christmas bonus be made whole
by payment to each of them the amount each would have
received in accordance with the formula used by Respon-
dent for the nonunit employees.
As to uniforms, I shall recommend that Respondent be
ordered to resume its policy and to make whole all
employees who were unlawfully deprived of uniforms by
paying to them the dollar value of the uniforms customari-
ly provided. Southeastern Michigan Gas Company, 198
NLRB No. 8.
As to the loss of overtime suffered by the regular tank-
trailer drivers by reason of the employment of a part-time
driver and the subcontracting of gasoline delivery, I shall
recommend that the regular tank-trailer drivers be made
whole for any loss of earnings suffered from the time of
Holland's employment and from the date of subcontract-
ing on December 19, 1972, to the date Respondent
discontinues the subcontracting.
All losses to be reimbursed as recommended herem shall
be computed in accordance with the formula set forth in F.
W. Woolworth Company, 90 NLRB 289, to which shall be
added interest at the rate of 6 percent per annum in
accordance with Isis F?umbing & Heating Co., 138 NLRB
716.
As to Respondent's refusal to bargain in good faith, I
shall recommend that Respondent be ordered to bargain
with the Union in the appropriate unit for which it was
(ertified. As the evidence shows that such refusal to
bargain in good faith existed from the inception of
9 See Gopher Aviation. Inc., 160 NLRB 1698 the Act, but the matter was fully litigated
10 The complaint does not allege such refusal to meet as a violation of
VALLEY OIL CO. 387
negotiations , I shall recommend that the normal certifica-
tion year be extended for a period of 1-year from the date
when Respondent begins to bargain in good faith with the
Union as the recognized representative of the employees in
the appropriate unit."
The unfair labor practices committed by Respondent
strike at the very heart of employee rights safeguarded by
the Act. I shall therefore recommend that Respondent be
placed under a broad order to cease and desist from in any
manner infringing upon the rights of employees guaranteed
in Section 7 of the Act. N.L.R.B. v. Entwistle Manufactur-
ing Co., 120 F.2d 532, 536 (C.A. 4, 1941).
CONCLUSIONS OF LAW
1. Valley Oil Co., Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Teamsters, Chauffeurs, Warehousemen and Helpers
Union Local 437, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All truckdrivers and oil burner servicemen employed
by Respondent at its Haverhill, Massachusetts, location,
but excluding office clerical employees, salesmen, dis-
patchers , maintenance men, guards and all supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. The above-named Union is the exclusive representa-
tive of the employees of Respondent in the above-de-
scribed unit within the meaning of Section 9(a) of the Act.
5. By telling employees Respondent would never sign a
contract and that it would close the plant before doing so,
by telling an employee Respondent is hiring part-time
employees to reduce the overtime of regular employees
because they selected the Union to represent them, by
telling strikers tiie.F,' have been discharged, by telling
strikers Respondciit would find a way to fire them, by
telling employees they would not receive a Christmas
bonus because of the Union, and by implying to an
employee that sick leave was denied him because of the
employees' union activities, Respondent engaged in and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) and 2(6) and (7) of the Act.
6. By assigning arduous or less agreeable tasks to
David Rain, depriving him of overtime hours and denying
him sick pay, because of his or other employees' union
activities, by discharging Rain, Stanley Widgren, Norman
Thompson, Edward Duchesneau, and Jeffrey Hodges
because they engaged in a strike, and by hiring a part-time
employee to reduce the overtime of regular employees,
subcontracting unit work, and denying Christmas bonuses
and uniforms to employees in reprisal against them for
11 The purpose of this remedy is to insure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law See Mar-Jac Poultry Company, Inc.,
136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226,
229, enfd. 328 F.2d 600 (C.A. 5), cert denied 379 U S °17 (1964); Burnett
Construction Company, 149 NLRB 1419, 1421, enfd. 350 F 2d 57 (C A. 10,
1965); Waycross Sportswear, Inc, 166 NLRB 101, enfd. 403 F.2d 832 (CA.
having selected the above-named Union as their collective-
bargaining representative , Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning of
Sections 8(axl) and (3) and 2(6) and (7) of the Act.
7. By negotiating in bad faith with no intention to
arrive at an agreement, by unilaterally discontinuing its
policy of providing uniforms to employees and of paying a
Christmas bonus, and by subcontracting unit work without
notice to, or consultation with, the above-named Union,
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Sections 8(axl) and
(5) and 2(6) and (7) of the Act.
8. The strike that commenced on January 15, 1973, was
caused and prolonged by Respondent's unfair labor
practices.
9. General Counsel has failed to establish by a
preponderance of evidence that Respondent violated
Section 8(a)(l) and (3) by discharging Raymond Holland
and by suspending David Rain.
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:
ORDER i2
Respondent, Valley Oil Co., Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with Teamsters,
Chauffeurs, Warehousemen and Helpers Union Local 437,
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
representatives of its employees at its Haverhill, Massachu-
setts , facility in a unit of truckdrivers and oil burner
servicemen, but excluding office clerical employees, sales-
men, dispatchers, maintenance men, guards and supervi-
sors as defined in the Act.
(b) Changing the working conditions of its employees by
discontinuing its policy of paying Christmas bonuses and
providing uniforms for employees and by subcontracting
unit work, without notice to or consultation with the
above-named Union.
(c) Discouraging membership in, or activities on behalf
of, the above-named Union, or any other labor organiza-
tion of its employees, by discharging employees, assigning
employees more arduous or less agreeable jobs, denying
employees sick pay, depriving employees of overtime,
subcontracting unit work, hiring part-time employees,
discontinuing the payment of a Christmas bonus and
providing uniforms, or otherwise discriminating in regard
to the hire or tenure of employment, or any terms or
conditions of employment of its employees, because of
their activities on behalf of the above-named Union or
because they have engaged in a strike.
5, 1968).
12 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.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Telling employees that Respondent would never sign
a contract with the above-named Umon.
(e) Telling employees that Respondent would close its
place of business down before signing contract with the
above-named Union.
(f) Telling employees that the Christmas bonus has been
discontinued because of their union activities.
(g) Implying to an employee that sick pay has been
denied him because of union activities.
(h) Telling an employee that it is hiring part-time
employees to reduce the overtime of regular employees
because they selected the Umon to represent them.
(i) Telling strikers Respondent would find a way to fire
them.
(j) Telling employees on strike that they have been
discharged.
(k) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union as the exclusive representative of all the
employees in the unit described above, and, if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Resume the policy of providing uniforms to its
employees and make whole all employees in the appropri-
ate unit for any losses they have suffered by reason of
Respondent's unlawful discontinuance of the policy by
paying to them the dollar value of the uniforms customari-
ly provided in accordance with the recommendation set
forth in the section of this Decision entitled "The
Remedy."
(c) Resume the policy of paying a Christmas bonus and
make whole all employees in the appropriate unit for the
unlawful withholding of a Christmas bonus in December
1972, by payment to them of the amount of the Christmas
bonus they would have received in accordance with
Respondent's established policy and in accordance with
the recommendation set forth in the section of this
Decision entitled "The Remedy."
13 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 'Tosted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
^d) Make David Rain whole by paying him the sick pay
which was unlawfully withheld from him on or about
December 1972, and for any loss of pay he may have
svIfered by reason of the failure to assign him to his
normal duties after October 25, 1972, and by reason of the
subcontracting of work he normally performed in accord-
ance with the recommendation set forth in the section of
this Decision entitled "The Remedy."
(e) Make whole the regular tank-trailer drivers for any
loss of pay they may have suffered by reason of the
employment of a part-time employee and the subcontract-
ing of their work on and after December 19, 1972, in
accordance with the recommendation set forth in the
section of this Decision entitled "The Remedy."
(f) Offer reinstatement to their former jobs or, if such
jobs are not available , to substantially equivalent jobs, to
David Rain, Jeffrey Hodges, Norman Thompson , Edward
Duchesneau , and Stanley Widgren, and make them whole
for any loss of pay they may have suffered by reason of the
discrimination against them by payment to them of a sum
of money equal to the amount they normally would have
earned as wages, in the manner set forth in the section
entitled "The Remedy."
(g) Preserve and, upon request, make available to the
Board and its agents , for examination and copying, all
payroll records, social security payment records , timecards,
personnel records, and reports and all other records
relevant and necessary to a termination of the amounts of
backpay due under the terms of this recommended Order.
(h) Post at its Haverhill, Massachusetts, facility copies of
the attached notice marked "Appendix ." 13 Copies of said
notice , on forms provided by the Regional Director for
Region 1 , after being duly signed by the Respondent's
representative , shall be posted by it immediately upon
receipt thereof , and maintained by it for 60 consecutive
days thereafter , in conspicuous places, iiiciuding 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.
(i) Notify the said Regional Director , in writing , within
20 days from the date of this Decision , what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of the
complaint found not to have been sustained by a
preponderance of the evidence be dismissed.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board,