Vip Limousine, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 871 (N.L.R.B. 1985)

VIP LIMOUSINE' 871
VIP Limousine , Inc. and International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, Local Union No . 145. Case
39-CA-1792
30 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 31 December 1984 Administrative Law
Judge' Robert T. Snyder issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings , findings, and
conclusions 1 and to' adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, VIP Limou-
sine, Inc., Stamford, Connecticut, its officers;
agents, successors, and assigns, shall take the action
set forth in the Order.
ognition of the Union as exclusive representative of its
employees in an appropriate unit, in violation of Section
8(a)(5) and (1) of the Act. By answer dated October 18,
1983, Respondent dented the material 'and conclusionary
allegations of the complaint.
On the entire record, including my observation of the
demeanor of the witnesses and after careful consideration
of the briefs filed by Respondent and the General Coun-
sel, I make the following
FINDINGS'OF FACT
1. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a Connecticut corporation, with an office
and place of business in Stamford, Connecticut, is en-
gaged in the interstate and intrastate operation of limou-
sine service for corporate executives. During the 12-
month period ending September 30, 1983, Respondent, in
the course and conduct of its business operations, =pur-
chased and received at its Stamford facility products,
goods, and materials valued in excess of $50,000 directly
from points outside the State of Connecticut. During the
same period, Respondent derived gross revenues in
excess of $50,000 for the transportation of passengers
from the State of Connecticut directly to points outside
the State of Connecticut. During the calendar year 1981,
Respondent, in the course and conduct of its business op-
erations, derived gross revenues in excess of $500,000.
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
i We agree with the judge that the Respondent was obligated to bar-
gain with the Union pursuant to the non-Board settlement reached by the
parties Also, under the circumstances herein, we agree that at the time
the Respondent ceased further bargaining no reasonable period of time
for bargaining had elapsed , and thus the Respondent was not privileged
to question the Union's majority status Accordingly, we need not pass
on the judge 's discussion as to whether the Respondent had a good-faith
doubt, based on objective considerations, of the Union's majority status.
Mary L. Davidson, Esq., of Hartford, Connecticut, for the
General Counsel.
Michael Lavelle,'. Esq. (Pullman, Comley, Bradley &
Reeves, Esqs.), of Bridgeport, Connecticut, for the Re-
spondent.
Norman Zolot, Esq., of Hamden, Connecticut, for 'the
,Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This
case was heard by me on January 11, 1984. The com-
plaint, which issued-on October 12, 1983, alleges that
VIP-Limousine, Inc. (Respondent, VIP, or the Compa-
ny) has refused to -bargain with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 145 (the Union or
Local 145) since July 29, 1983, when it withdrew its rec-
276 NLRB No. - 89
II. THE ALLEGED UNFAIR LABOR PRACTICE
On October 14, 1980, the Union filed a petition for
Certification of Representative in Case 39-RC-125 seek-
ing a unit of drivers and dispatchers employed by Re-
spondent at its Stamford facility Pursuant to that peti-
tion, an election' was held on December 12, 1980, in
which 63 votes were cast against the Union, 31 votes
were in its favor, there were no void ballots, and there
were 15 challenged ballots. Timely objections to conduct
affecting the result of the election were filed by the
Union on December 18, 1980. Subsequently, following
an investigation of those objections by the. Officer-in-
Charge, Subregion 39, and issuance of a report thereon,
and the filing of charges by three employees and the
Union against Respondent, Objections 1 through 6 were
ultimately ordered consolidated with consolidated com-
plaint in Cases 39-CA-378, 39-CA-404, and 39-CA-438
and with complaint in Case 39-CA-511 by an order fur-
ther consolidating cases , consolidated amended com-
plaint and notice of hearing dated March 30, • 1981, and
issued by the Officer-in-Charge, scheduling a hearing for
November 2, 1981, in Hartford, Connecticut.
That consolidated amended complaint contains a litany
of allegations of violations of-Section 8(a)(1) of the Act
by various named officers and agents of Respondent, in-
cluding its then president, Robert Morris; allegations of
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory discharge of seven named employees, in-
cluding the three individual charging parties; and allega-,
tions -that all drivers and dispatchers employed by Re-
spondent at its Stamford facility constitute-a unit appro-
priate for bargaining, that from August 10 to October 7,.
1980, the, Union had become the majority representative
of the employees in that, unit, that, since September 25,
1980, the ,Union, by virtue of Section 9(a) of the Act was
the exclusive representative of the employees in the de-
scribed unit, that about October 10, 1980, a request for
collective bargaining in that. unit had been made in writ-
ing by the Union, and that by virtue of the acts previous-
ly alleged Respondent had engaged in a course of con-
duct precluding the holding of a fair rerun, election
among the' employees in the unit described, Respondent
had-refused to bargain, with the Union and, among other
remedies sought, the unfair labor practices alleged were
so serious and substantial in character and effect as to
warrant the entry of a remedial order requiring Respond-
ent, as of. September 25, 1980, to recognize and.bargain
with the Union as the exclusive collective-bargaining
representative of its employees in the unit described.
After a rescheduling of the commencement of heanng
to November 30, 1981, prior to its opening, the parties.
present executed an out-of-Board settlement agreement,
by the terms of which Respondent recognized the Union
as exclusive bargaining agent for all its drivers and
agreed to bargain 1with'the Union in good faith, agreed
to a 30-day union-shop provision and to dues checkoff
by individual written authorization, recounted a,refusal
by all alleged discriminatees of an offer of reemployment
made to all of them, provided for specified-sums to be
paid in_three equal' installments to each alleged discharg-
ee, varying in amounts between $1000 and $14,358.70,•
and contained agreements by each charging party and
the Union to withdraw the outstanding consolidated
charges and the objections to the election in the consoli-
dated RC case upon the Employer's compliance with the
terms of the agreement. The Region's order severing the
cases, dismissing the complaint, and withdrawing notice
of' hearing issued on April 5, 1982. The parties also
agreed that the Company would post a notice of employ-
ees, with copy attached, informing them of the terms of
the agreement. This was'a standard rights notice which
basically followed the format of a notice normally incor-
porated in a Board settlement. An addendum contained
employer exculpatory ' language and an undertaking by
the Union to save the Employer harmless in the event
the union-security and dues-checkoff provisions were de-
clared invalid. .
Donald ,Ott, president of Respondent since approxi-
mately January 1983, and secretary,and manager of fi-
nance to whom Personnel Director Charles Richardson
reported at the time of the signing of the agreement, tes-
tified as to . the circumstances surrounding its signing. -
Present for the Company were then President Robert
Morris, Ott, and one or two attorneys. Present for the
Union were Vincent Capoccitti, president and business
agent , William Kuba, secretary- treasurer , and Norman
Zolot, the union attorney. Also present for the trial was
Counsel for, General Counsel Rober Chevene. Initially,
Morris and Ott were seated in the front row of the hear-
ing room awaiting the trial: - '
Discussions then commenced among Ott, Morris, and
their counsel during which Ott and Morris instructed
counsel to ask the union representative- if they would
consider a settlement, that the Company could not afford
the litigation in terms of time and money. Counsel were
instructed to 'offer payments to the employees named in
the complaint of the moneys due them if they would not
insist on reinstatement and the Company would also
accept Local 145 as the bargaining agent. Ott also re-
called that the negotiators progressed initially mainly by
way of separate discussions with the attorneys acting as
go-between but that at some point he and Morris in
direct discussion with' the union representatives argued
they did not want-the checkoff, but that the Union was
very insistent and they finally agreed to it. Ott also re-
called all the participants sitting down together after ev-
erything had been negotiated and the General Counsel
and union representatives approached the employees- to
obtain their agreement to the,settlement. The language
was then drawn up and was signed on behalf of Local
145 by Kuba and on behalf of the Company by Morris
and by each of. the seven alleged discriminatees. Various
corrections and crossings out were initialed by the two
main signatories.
-Based on this agreement the Officer-in-Charge subse-
quently approved the Union's requested withdrawal of
its objections and the Charging Parties' request with-
drawal of their unfair labor practice charges. The notice
to- employees was posted for 60 days, at Respondent's
premises.
Pursuant' to the • recognition agreement, Respondent
and the • Union . commenced collective bargaining on Jan-
uary 13, 1982.1 Subsequent negotiation sessions were also
held on February 24, March 8, April 1, 13, and 23, June
17 and 22, July 7 and 16, and September 6 because of the
parties' conflicting vacation schedules. On April 23 Re-
spondent had retained new counsel, Michael Lavelle, to
represent it in collective bargaining. Present at all of
these sessions were Ott for Respondent and Capoccitti
for the Union. Kuba for the Union was present at-all the
sessions -except July 7 and September 23. Attorney La-
velle attended all sessions from April 17 through. Septem-
ber 23, except for June 22 -
The Union submitted its first written•set•of bargaining
proposals to Respondent by letter dated May 24 includ-
ing, inter alia, recognition and combined union-shop and
checkoff clauses Respondent presented its first .set of
written counterproposals at the July 7 session and a set
at the September 7 meeting. While both included a form
of recognition agreement2 neither provided for inclusion
of a union-security or dues-checkoff, clause, although in
the second set of proposals Respondent included an arti-
cle 3 authorizing payroll deductions for direct'deposit of
All dates hereinafter shall refer to 1982 unless otherwise noted
z Unlike the clause incorporated in the out-of-Board settlement which
stipulated recognition of the Umon as the exclusive bargaining agent "for
all of its drivers " Respondent's clause recognizes the Union as exclusive
agent of a unit which consists of "a group of employees regularly em-
ployed by the Company as full- time and part -time drivers "
VIP LIMOUSINE 873
any, employee's wages and credit union deposits so.long
as the Company continues to maintain automated payroll
processing services
On September 29, a union deauthorization petition in
Case 39-UD-15 was filed by employee Robert Marlin
seeking to rescind the union-security agreement incorpo-
rated in the non-Board settlement agreement of Novem-
ber 30, 1981. Pursuant to a Decision and Direction of
Election issued by the Regional Director for Region 1
on January 13, 1983, an. election was conducted in Case
39-UD-15ion February 11, 1983. The results show that a
majority of eligible employees3 did not vote to withdraw
the Union's authority to require, under its agreement
with the Employer, membership as. a condition of em-
ployment. Of approximately 89 eligible voters, 37 em-
ployees voted to withdraw the Union's authority and 30
voted against such withdrawal.
Both the Petitioner and the Employer filed timely ob-
jections to conduct affecting the results of the election,
in each case alleging that seriously inclement weather on
the day of the election prevented a significant number of
eligible employees from voting.
On March -14, 1983, the Acting Regional Director for
Region 1 issued a supplemental decision overruling the
Petitioner's and Employer's- objections in their entirety
and certifying the results of the election. The Regional
Director concluded that, despite the inclement weather,
75 percent of those eligible to vote were able to cast
their ballots in the election, a figure which constitutes a
representative portion of the electorate. Respondent re-
quested review of the supplemental decision on March
23, 1983, and the Board granted such review on Septem-
ber 12, 1983.
As of the close of the hearing, and to date, the Board
has not issued a decision in this matter.
By union letter dated September 20, 1982, Capoccitti
and Kuba informed the VIP drivers of the status of ne-
gotiations. In the report they referred to their having
earlier submitted a virtually complete proposed contract
to the Company. The report then notes: "Several meet-
ings subsequent' to that submission resulted in the Com-
pany presenting us with a counter-proposal contract,
which, after examination, we rejected practically in .its
entirety. We have since been negotiating- regularly and
hope to have a more meaningful offer with as little delay
-as possible that would dignify its presentation to you."
The report went on to list the highlights of the proposals
submitted by VIP drivers and presented to the Compa-
ny, referred to the agreement with the Company requir-
ing good standing membership in the Union as a condi-
tion of employment and the Union's own constitutional
requirement that only bargaining unit employees who are
union members may vote on contracts, itemized the initi-
ation fee, and enclosed membership and dues-checkoff
and initiation cards and asked for their return.
8 Unlike elections to select or remove a bargaining representative
which only require for their success a majority of the valid ballots cast,
elections to rescind a union-secunty agreement require to be successful
that a majority of eligible voters cast ballots in favor of such recession.
Sec 11512, NLRB Casehandhng Manual (Part Two), Representation
Proceedings:
The last bargaining session was held 3 days later on
September 23. Although Capoccitti initially testified that
a meeting scheduled with the Company for September
29 was not held because it was canceled by Ott, he later
acknowledged that he did meet Ott on September 29, but
only to discuss grievances and not to negotiate. On that
same day, as earlier -noted, the deauthorization petition
was filed. When Capoccitti attempted thereafter to
schedule negotiations he testified Ott took the position
that because there was a UD petition in process the
Company did not feel it should meet, that it was unde-
cided whether or not the Union represented the people
at VIP. Ott explained that he would not meet until the
matter was decided.4
Capoccitti testified that he objected to this- position,
explaining to Ott that the Board proceeding was only
going to determine whether or not there would be a
union-shop agreement and that should not stop them
from negotiating a contract for the employees there. The
election had nothing to do with the fact that the Union
already represented the people at VIP and had a right to
negotiate a contract. Respondent, however, continued to
refuse to meet during the pendency of the petition.
- Although • not entirely clear from Capoccitti's direct
testimony, I find that he attempted to resume negotia-
tions both after the election was held in Case 39-UD-14
on February 11, 1982, and after the issuance of the sup-
plemental decision in the same case on March 14, 1983.
Capoccitti's telephone calls to Ott were met with similar
responses . Respondent had filed objections to the elec-
tion and would not meet during their pendency. After
the supplemental decision, Ott told Capoccitti that in his
view a meeting would be a waste of time, that the Com-
pany had appealed that decision anyway and a number
of employees had told him they did not want the Union.
Capoccitti asked Ott to contact his, lawyer so that the
Union could receive something in writing as to the Com-
pany's position at that time.
By letter dated April 14, 1983, addressed to Capoccitti,
Ott referred first to an accompanying list of all drivers as
of an April 6 per union request. Next, Ott, in response to
their phone conversation and Capoccitti's request to
meet , declined to do so at that time because of a Metro
North rail strike and the demands it placed on his time.
Ott ended by advising he would inform Capoccitti of the
first available date to meet at the end of the strike.
Ott never did contact Capoccitti following this letter.
Capoccitti continued to try to arrange meetings by call-
ing the Company _ periodically during May and June
1983, and leaving messages for Ott, without avail. Ott
eventually agreed to a bargaining session to be held • on
June 15, 1983. The meeting was never held because Ott
canceled it, advising Capoccitti that his grandmother had
died but that as -soon as he got back they would continue
negotiations with Attorney Lavelle. When further at-
tempts to set up a meeting proved futile, after consulting
Capoccitti got the distinct impression from Ott's statements in which
he expressed the view that the UD petiiion would decide whether the
Union would be there or not, that Ott, being the newly appointed presi-
dent and young and mexpenenced in labor relations matters, was not
aware of the consequences and nature of the deauthorization proceeding
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kuba, Capoccitti sent a letter to'Ott dated July 28, 1983,
reviewing the result of the recent NLRB decision, the
several phone conversations between them to schedule
negotiations, and the cancellation of the June 15 meeting.
Capoccitti concluded by noting that, since he-had been
unsuccessful in reaching Ott by phone the last few' days,
he was 'taking this opportunity to request the scheduling
of additional meetings so that they may ' resolve this
matter at the earliest time possible.
Ott, in a later phone call to Capoccitti, insisted that
with the Respondent's appeal in the UD case and the
fact that he had talked to the people who worked there
and they did not want the Union, as far as the Company
was concerned the Union did not represent anybody and
therefore he was not going to sit down. It would be a
waste of time for them to negotiate any further.
Attorney Lavelle also telephoned Capoccitti early in
August to inform him that the Company was flatly refus-
ing and would not meet with Local 145 any further to
negotiate a contract.
According to Capoccitti, the -Union refrained from no=
tifying the-Company of the designation of a steward for
fear of retaliation, the complaint which was later with-
drawn having alleged the discriminatory -discharge of
seven employees. Capoccitti,asserted that many employ-
ees were talking with the Union on a, regular basis.' Eight
employees were on a contract committee, engaged in
collecting requests from employees for proposals- to be
included in a contract and in contact with the union
agents .to complete a package of union proposals for sub-
mission to the Company. The Union's report of Septem-
ber 20, 1982, makes. reference to the drivers' submission
of contract proposals. -
The parties stipulated that no impasse was reached on
any subject of bargaining during the course of the meet-
ings , and the evidence previously presented clearly sup-
ports his conclusion. -
Respondent called three witnesses. Ott confirmed that
no agreement was reached as to any contractual item
during the course of bargaining. He said , "I didn't feel
that anything was firmly fixed." (Tr. 62.) According to
Ott, one major issue for the Union was the checkoff and
union shop. He acknowledged that the Company had
omitted these subjects from the written proposal provid-
ed the Union and that he had informed the union repre-.
sentatives that he was very strongly against them, he was
never going to be in a position to tell a good driver he
had to pay dues or to have to fire a driver because of his,
beliefs opposed to union membership or tender of dues.
Ott disagreed with Capoccitti regarding their conver-
sation following -filing of the UD petition in late Septem-
ber or early October. Ott asserted that Capoccitti agreed
with his position that it made no ,sense to meet during
the pendency of the UD petition, although Capoccitti
wanted Ott to place on record that the Union was., asking
to get together. After the election in February 1983,
when Capoccitti called to resume negotiations, Ott testi-
fied he said yes, "it's time , to get together," although he
did not necessarily want to. Ott, however, could not
recall whether a specific date was set with Capoccitti at
that time. By early-March 1983, when the-rail strike was
imminent and Ott was swamped with extra work, he ex-
plained the circumstances to Capoccitti who understood
the situation. While Ott testified that he and Capoccitti
"always mutually agreed on these meetings" (Tr. 68) no
meeting was ever held after September 23, 1982, and
until the end of July 1983 when Ott finally refused to
meet. - •
During their periodic conversations by telephone fol
lowing the UD election in February 1983, Ott asked the
question that with a vote of 2 to 1 against the Union
"how are you ever going to sell a contract to these driv-
ers " When he finally spoke to Capoccitti a few days
after the funeral in July, he said he really could not see
any sense to get together.. He said he felt the Union did
not have'representative status any more because several
drivers had come to him stating, "What's. going on?
When' are we going to get rid of these people?" that sort
of thing. As Ott'explained it, this was a predicament for
him because he was really not sure how to go about this.
He disclosed to Capoccitti he had not talked to his
lawyer Michael Lavelle either, this was coming off the
cuff from himself. He also told the union agent that he
was thinking about doing a poll among the employees.
Ott ended the conversation by saying he would be call-
ing his lawyer Lavelle and explaining how he felt and
have Lavelle call Capoccitti and discuss the matter with
him.- As earlier noted, that call only reconfirmed Re-
spondent's stated refusal to meet or negotiate.
Ott testified that from the entry of the out-of-Board
settlement agreement in November 1981 forward,- from
15 to 20 different 'asking perhaps even more, made
statements to him asking what was going on, and ex-
pressing • the view that they did not want the Union. As
of February 1982, the Company employed 101 drivers.
By September 27, 1983, 54 had left and the Company
was then employing around 90 drivers. At the end of
July 1983, VIP employed 81 drivers. In January 1984 at
the time of the hearing it employed 84.
Under cross-examination , Ott admitted that his con-
cern about union support among the drivers: from as
early as March or April 1982 led him ,to question the
Union's 'ability to sell a contract to employees because
they did not represent a majority. However, Ott exhibit-
ed some confusion over the event which triggered the
limited number of employee statements to him, tying the
entry of. the recognition agreement in November 1981
with employees questioning of him why the Company
did so since the eniployees had won the election, which
was held in February 1983. Furthermore, Ott now
became vague, about the recognition clause (one -of the
provisions of the out-of-Board settlement), being unable
to recall whether it was ever discussed or whether he
ever told the Union he could not agree to it or it would
not be a problem.
As far as his intent to live up to the settlement agree-
ment , Ott testified as follows:
Q. (Mary Davidson) Did you ever intend to
reach agreement with the union on a contract?
A. (Ronald Ott) I suppose so.
Q. You suppose so?
A. Maybe initially.
Q. When did that change?
VIR LIMOUSINE 875
•A. Very early.
Q. How early?
A. I don't know. How can I say.
Q. Well, just to.the best of your. knowledge.
A. I don't know. You're asking me questions that
I don't know if I did or didn't.
Q. You don't know if you did or didn't intend to
reach agreement with the union-
A. Certainly I was meeting with them.
Q. Yes?
A. I was meeting with them because of one "I
thought' I had a duty to bargain." Okay? I always
questioned whether or not there was really some-
thing legally that says that that is so . Supposedly. I
always questioned it because I knew that there were
a lot of drivers that weren't in favor of this whole
thing.
So, I had a lot of emotions rolling through my
head at the time and I'm saying , well, I do have a
duty to bargain, as far as I know. And I'm saying,
how am I appearing to these drivers? And they
keep coming and they say' what 's happening and
then I can 't tell them anything because I think I've
learned my lesson very well, you keep your damned
mouth shut. Which I did.
So, I just don't know. I really can't answer your
question the way you want it answered. I don't
have it.
This passage shows that even at the time Ott was
agreeing to the terms of the out-of-Board settlement, he -
did not seriously intend to comply with its terms. This
comes across most strongly in his response to the ques-
tion whether he knew if he intended to reach agreement
with the Union-"Certainly I was meeting with them." -
Surely, Ott's and Respondent's refusal to comply with
the provisions calling for a union shop and dues checkoff
have been made abundantly clear on this record.5
Ott also contradicted himself when, with respect to
the conversation with Capoccitti in July 1, 1983, in
which he first said he was speaking off the cuff without
prior consultation with Lavelle, he later disclosed on
cross-examination that he had talked to his attorney
about various alternatives to bargaining , including con--
ducting a poll among employees.
After first denying that meetings were held only when
Capoccitti initiated the request Ott reluctantly agreed
that such was the case.
The foregoing illustrates.the unreliability of Ott as a
witness, his confusion, his lack of good faith in dealing
with the Union, and the contradictory and vague nature
of his testimony. Because of these factors as well as -the
general coherence, inherent believability, and corrobora-
tion of almost all aspects of his narrative by Ott himself
as well as the two letters between them received in evi-
dence I credit Capoccitti that he protested to _Ott the
Company's refusal to meet during the pendency of the
5 Ott later testified that he never agreed to embody either the recogni-
tion clause or union-shop clause, incorporated in the settlement agreement
in a union contract , and never told the Union he would, in spite of the
fact , which Ott agreed was correct , that the agreement incorporating
these provisions was in force at the time the parties were negotiating
deauthorization petition and, indeed, • during the total
period from September- 1982• to about 'July 29, 1983, .
when Ott finally refused outright to meet and negotiate.
Charles H. Richardson, director of driver relations,
February 1981 to January 1982 and personnel director
from January 1982, testified that during the period from
November 1981 to, July 1983 a small number of employ-
ees, 10, 15, or 20, informed him that they did not want a
union. Shortly after-'posting. the notice' to employees
called for in the out-of-Board settlement, notifying em-
ployees of recognition accorded the Union, early in 1982,
employees wanted a recertification vote. Marlin said he
was taking the petition to the NLRB. This was, his only
conversation about the matter with Marlin. Richardson
on cross-examination later clarified that 'the petition to
which Marlin had made reference was a petition of
names accompanying the UD petition filed in September
1982. Richardson also swore he did not report this con-
versation to anyone. e.
At first denying any knowledge of Marlin's efforts to
raise funds from employees to retain an attorney to proc-
ess the UD petition, Richardson finally was compelled to
admit that he was aware of notices posted on the drivers'
lounge area bulletin board seeking employee contribu-
tions and announcing_a meeting with an attorney about
the deauthorization petition. Richardson took no steps to
have the notices removed. Neither did he'report them to
his superiors at VIP, testimony I conclude is not believ-
able. Further, in spite of Respondent's rejection of the
union relationship, as recently as'1 week before the hear-
ing, he claimed to having informed a driver applicant for
employment who inquired about the Union that the
Union was the representative of the Company's employ-
ees. - • ' -- -
Robert Marlin, • Respondent's final witness, testified
that in December 1981 he had solicited signatures from
85 percent of the drivers to a petition shortly after post-
ing of the notice of union recognition and had forwarded
it to the Board's Subregion 39 in Hartford. In the peti-
tion, -the employees asked for a new vote because they
thought they were put into a union without their rights.
Marlin was firm that he did not communicate the posi-
tion of these drivers in opposition to the Union to any
member of management at VIP. The record contains no
evidence as to the fate- of this informal petition which
was not prepared on any official form.
Subsequently, Marlin circulated another petition which
ultimately bore the signatures of about 65 percent of the
drivers (55 in all). This document supported the union
deauthorization petition showing of interest. Marlin
could not recall informing Richardson of his filing of the
petition- of the employee support for it. Marlin denied in-
forming any member of management about the results of
his obtaining those signatures or about the number of
employees who signed it.
In soliciting employee signatures for 'the deauthoriza-
tion petition 'Marlin testified under union cross-examina-
tion that he took care to explain that the' petition was in-
Richardson is corroborated in this by virtue of Ott's failure to men-
tion at any time in his extensive examination that Richardson had in-
formed him of the employee support for the deauthonzation petition
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tended to stop the Union's right or authorization to col-
lect dues. He did not inform them that it was to get rid
of the Union. The solicitation- took place in the drivers'
room (lounge) but mostly on the outside, in a local res-
taurant, or on the road, in the airports whenever he saw
drivers, sometimes while he was working,,and sometimes
on his day off. -
Analysis and Conclusions
The case presents two issues. Was the Company justi-
fied in ceasing to bargain and withdrawing its recogni-
tion from the Union on July 29, 1983, after having
agreed to recognize the Union and bargain' in good faith
in the November 30, 1981 out-of-Board settlement agree-
ment it entered with the-Union? Even if the settlement
agreement provided the Union an irrebuttable status as
exclusive majority representative of the unit employees
for a reasonable period of time, did such a period of time
elapse by July 29, 1983, and, if so, did the Company rely
on objective evidence of the Union's loss of majority
status sufficient to justify it in withdrawing recognition
on the latter date?
It is well settled that a Board order to bargain against
an employer must' be complied with for a reasonable
period of time without regard to fluctuations in the ma-
jority status of the union over that period. Poole Foundry
& Machine Co., 95 NLRB -34 (1951), enfd. 192 F.2d 740
(4th Cir. 1951), cert. denied-342 U.S. 954. Similarly, a
settlement agreement containing a bargaining provision,
if it is to achieve its purpose, must be treated similarly.
Poole Foundry & Machine Co., supra; Keller Plastics East-
ern, Inc., 157 NLRB 583 (1966); Brennan's Cadillac, 231
NLRB 225 (1977).
The Poole Foundry principle has also been extended to
bargaining provisions contained in private out-of-Board
settlements. Ted..•Mansour's Market, 199 NLRB 218
(1972); Pride Refining, 224 NLRB 1353 (1976); enf.
denied (on ground agreement was a collective-bargaining
agreement rather than settlement agreement) 555 F.2d
453 (5th Cir. 1977). In NLRB v. Vantran Electric Corp.,
580 F.2d 921 (7th Cir. 1978), the court denied enforce-
ment to the Board's Order appearing at 231 NLRB 1014
(1977), on the ground that the parties did not intend that
the employer's agreement to bargain in the out-of-Board
settlement was in conformity with the scope of bargain-
ing obligation imposed by the Board under its own
standards for determining compliance with the obliga-
tion. Because the Board neither approves or reviews pri-
vate settlements but merely acquiesces in the. request of
the charging party to withdraw charges without neces-
sarily having knowledge of the settlement terms or perti-
nent background facts (unlike Board-approved settle-
ments which must satisfy Board standards), the court
first imposed a standard for review of out-of-Board set-
tlements which requires them to be carefully analyzed to
determine the intended scope of the bargaining provi-
sion. The -court noted that an important factor in this
analysis is whether the employer 's agreement to recog-
nize it and bargain was a quid pro quo for the union's
agreement to withdraw its 8(a)(5) charge. If it was, the
parties probably intended the Board's standards for as-
sessing conduct under the bargaining obligation to apply,
e.g., the requirement that bargaining continue for a rea-
sonable period of time. If it was not, the result would be
unclear and the Board would have the burden of show-
ing the bargaining obligation was broader than the literal
language of the provision indicated. The facts in Vantran
showed that the employer's primary concession in the
private agreement appears to have been its dismissal of
state court damage actions and thus its agreement to bar-
gain was not a quid pro quo for the union's agreement to
withdraw its charge but at best was only incidental
thereto. The Board's order requiring the employer to
bargain for an extended certification year on the basis of
the out-of-Board settlement thus was held to have ex-
ceeded its remedial powers and was denied enforcement.
Applying these principles to the facts at hand I con-
clude first that the agreement here does not constitute a
collective-bargaining agreement as it does not contain
specific provisions as to wages, hours, and working con-
ditions for a specified time, unlike the agreement in Pride
Refining, supra, and so is not subject to that infirmity. As
to the intended scope of the bargaining provision, I con-
clude that the parties intended the Company's agreement
to bargain as a quid pro quo for the Union's agreement
to withdraw its 8(a)(5) charge.
The only matters disposed of in the agreement were
the issues raised by the complaint and answer in Case
39-CA-378. The agreement disposed of the litigation,
providing the basic remedies that would have been ac-
corded the employees and union after a successful dispo-
sition of the consolidated cases, including •backpay and
exclusive recognition as bargaining agent. That the rec- .
ognition agreement was central to the Union's concerns
and was recognized as important by the Company is
shown by VIP's initial offer directly to the Union to bar-
gain in good faith and grant recognition, along with pro-
viding backpay as a way of disposing of the case. It is
clear that the Union accepted these offers in return for
its and the employees' agreement to withdraw the pro-
ceedings. The achievement of the remedy of a bargaining
order specifically sought in the complaint was predicated
in part on a setting aside of the representation election in
Case 39-RC-125. The Union would only have agreed to
withdraw these objections in return for the concession of
the Company's agreement to recognize it in bargaining.
The language of the bargaining obligation tracks the re-
medial language appearing in formal Board orders, in-
cluding an agreement "to bargain with the Union in
good faith with respect to wages, hours and other condi-
tions of employment," supporting the conclusion that the
parties adopted the Board's standard for such obligation.
Furthermore, the notice to employees incorporated in
paragraphs 8 and 9 tracks the form notice incorporated
in Board remedial orders and provides, in part, the VIP
will recognize the Union and bargain with it in good
faith "as required by the Act." It is also of some signifi-
cance in this regard that the Union's and charging par-
ties' withdrawals were made conditional on the Employ-
er's compliance with the terms of the agreement, a provi-
sion standard in Board's approved settlements but not
private adjustments. Because the agreement was also ne-
gotiated at the hearing site in the presence of the Gener-
VIP LIMOUSINE
al Counsel, it appears likely that the Board had knowl-
edge of the facts and circumstances surrounding the
agreement as well as the terms of the agreement, further
justifying the conclusion I reach that the parties intended
the scope of the bargaining obligation to conform to that
of the Board.
When did this bargaining obligation commence? Re-
spondent concedes that the reasonable period of time
should be measured from April 5, 1982, the date the
Region approved the withdrawal requests and dismissed
the complaint relying on WDIV Post-Newsweek Stations,
254 NLRB 550 (1981). The General Counsel would-start
the period on January 13, 1982, the commencement of
bargaining. There is language in Brennan's Cadillac,
supra at 226, suggesting that it is the period during
which negotiations were carried on that encompasses the
period to be examined. The Board's Poole Foundry deci-
sion , supra at 37, refers to a third starting date, the exe-
cution of the settlement agreement, -here, November 30,
1981. Note that the termination date of actual bargaining
sessions is September 23, 1982. However, whether one
concludes that the parties met over a period of 5-1/2
months, the period proposed by, Respondent, or over a
period of 8 months, the period proposed by the General
Counsel, or over almost 11 months under the Poole
Foundry language, is, I believe, relatively insignificant.
As the Board noted in Brennan's Cadillac, supra at
226, "reasonable time -does not depend upon either the
passage of time or the number of calendar days on which
the parties met. Rather, the issue terms on what tran-
spired during those meetings and what was accomplished
therein."
Various factors have been considered by the Board in
determining whether a reasonable period has elapsed.
Among those relevant here are whether the parties were
bargaining for a first contract and had no common expe-
rience to draw upon for the expiditious resolution of
their differences, Blue Valley Machine & Mfg. Co., 180
NLRB 298 (1969); whether the employer made a belated
challenge to the union 's majority status 11 months after
granting recognition and subsequent to a settlement
agreement, improperly placing the burden of proving
such status on the union, Aero Engineering Corp., 177
NLRB 176 (1969); whether the employer engaged in
meaningful good-faith negotiations over a substantial
period of time, Brennan's Cadillac, supra; whether no im-
passe in negotiations had been reached, N. J. MacDonald
& Sons, Inc., 155 NLRB 67 (1965); whether an employer
may rely on evidence of employee dissatisfaction at a
time when an election among the employees is not war-
ranted, Ray Brooks v. NLRB, 348 U S. 96, 103 (1954);
and whether an employer may rely on actual loss of ma-
jority status due in part to fluctuations in a labor force
before giving the bargaining relationship to which it had
agreed a reasonable opportunity to function, San Cle-
mente Publishing Corp., supra. In each of these cases
cited, the Board (and in the case of Ray Brooks, the Su-
preme Court) found that the circumstances cited did not
justify the employer in withdrawing from bargaining,
except in.the case of Brennan's Cadillac where the union
had struck when the parties had each made significant
877
concessions and substantial agreement had already been
reached.
Applying each of these factors to the instant facts, the
conclusion is warranted that a reasonable period had not
elapsed when, in fact, Respondent ceased further bar-
gaining sessions on September 23, • 1982. That Respondent
did not announce its- decision to withdraw recognition
until 10 months later,. at the end of July 1983, is of no
real consequence, except insofar as it provides direct evi-
dence of Respondent's conduct from which to date the
continuing violation within the 10(b) period. Respond-
ent's reliance to avoid meeting after September 23, 1982,
upon the filing of the UD petition, its objections to the
election and subsequent appeal from the Region's over-
ruling of its objections, its business priorities during the
rail strike and the later death of a relative of Respond-
ent's president, are all to no avail in extending the period
to be examined and, in fact, show an avoidance of the
bargaining obligation which is consistent with Respond-
ent pre s̀ident 's earlier expressions of reservation as to its
obligations 'under the grant of recognition it accorded
the Union in the out-of-Board settlement.
The deauthonzation petition provides no ground for
withdrawing recognition and Ott's refusal to meet during
its pendency provides no defense. Capoccitti properly re-
butted Ott's refusal to meet, when he' pointed out the
proceeding only resolved a question of the Union's au-
thority to seek a union-security agreement . Even a decer-
tification petition would not have provided a basis for re-
fusing to continue bargaining , Dresser Industries, 264
NLRB 1088 (1982), and such a petition could not have
been filed, indeed its filing would have been inconsistent
with this employer's duty to recognize and bargain with
the Union, during the reasonable period of time follow-
ing entry of the settlement. Neither can Respondent
excuse its refusal to meet because of a business emergen-
cy or death of a relative and thereby extend the relevant
period. Because VIP provided the Union no opportunity
to meet beyond September 23, 1982, Respondent cannot
rely on the passage of time as reflecting on its satisfac-
tion of the bargaining duty.
Examining the relevant period, whether commencing
on the date of agreement, first meeting of the parties, or
approval of withdrawal of the charge, Respondent had
not given the recognition agreement any real opportuni-
ty to succeed. As noted in the presentation of facts, Ott
clearly doubted the Union's majority standing and the le-
gitimacy of its own obligation from the outset, and took
every opportunity to point out to Capoccitti its unwill-
ingness to comply with the union-shop and dues-checkoff
agreement or to incorporate them in any agreement well
before the filing of the UD petition.- The parties were
bargaining for a first contract and thus had to work out
basic provisions without any prior history or understand-
ing. Ott permitted expressions of dissatisfaction expressed
to him by a fairly small, unidentified group of employees
and, perhaps, a 50-percent turnover in the work force, to
influence his response from the outset to the Union's pro-
posals and, indeed, his obligation to seek agreement in
good-faith dealing. Respondent at no time disputed the
General Counsel's and the Union's claims that no mean-
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingful headway had been made over the course of the
meetings in substantially narrowing the area of differ-
ences between the parties. The Union's letter to, the driv-
ers shortly before the -last bargaining session points up
the major differences which remained. No impasse had
been reached on any bargaining subject by this time.
I conclude based upon the- foregoing that by the last
meeting Respondent had failed to satisfy its bargaining
obligation, and that its later direct withdrawal of recog-
nition merely formalized, an attitude and intention which
pervaded the bargaining and gave the sessions little op-
portunity to succeed. The reasonable period of time had
not run and the Company is thus obliged ' to fulfill the
obligation to which it agreed in the out-of-Board settle-
ment. •
.1 also conclude that even if it could be determined,
contrary to the strong weight of the evidence, that a rea-
sonable period of time had elapsed by the date Respond-
ent withdrew recognition, it could not assert a good-faith
doubt as to the :Union's continued majority status ground
on objective considerations , Terrell Machine Co., 173
NLRB 1480 (1964),,enfd. 427.F.2d 1088 (4th Cir. 1970).
Respondent failed on this record to meet its burden in re-
butting the presumption of 'majority flowing from the
Union's voluntarily recognized status which resulted
from the settlement of the underlying Board proceeding,
Laystrom 'Mfg. Co., 151 NLRB 1482 (1965), enf. denied
on other grounds 359 F.2d 799 (7th Cir. 1966).-
It has already been established` that Respondent's reli-
ance on the deauthorization proceeding was misplaced.
The fact that employee Marlin had successfully solicited
85 percent of the employees to sign a petition for a new
representation election never came to Respondent man-
agement's attention, and even if it had, Respondent's im-
mediately preceding November 30, 1981 undertaking to
recognize and -bargain with the Union could not be
voided by immediate fluctuations in union support, Poole
Foundry, supra: Furthermore, employee expressions of
antiunion sentiment at the time the out-of-Board settle-
ment was being complied with by Respondent, by notice
posting and `payments of backpay, cannot, as a matter of
policy consistent with the Employer's obligation under
the Act to satisfy its - bargaining obligation under the
same agreement, be relied on to undermine that obliga-
tion.7
Neither may,Respondent rely on evidence of employ-
ee turnover to establish a reasonable doubt -as to the
Union's contained majority status since new employees
are presumed to support the Union in the same ratio as
they replace. Robertshaw Controls Co., 263 NLRB 958
(1982). Respondent having agreed to recognize the
Union as majority representative on November 30, 1981,
the fluctuations: in the work force thereafter could not in
itself establish' a reasonable doubt of that continued
status.
- 7 This reasoning -meiely makes sense of the policy extending to bar-
gaining provisions in out-of-Board settlements the same result which had
been consistently applied to certifications , Board orders, and settlement
agreements-a reasonable time for their operation . The General Counsel's
argument m'its brief, assuming in error, a finding that Respondent had
engaged in unlawful conduct , and therefore evidence of employee disaf- -
fection during the compliance period is tainted , is rejected
Finally, the testimony regarding the 15 to 20 employ-
ees over a considerable period -of time who expressed
union disaffection to Ott, and the 10 to 20 who expressed
similar views to Richardson, is inadequate to establish
that a majority of employees rejected the bargaining
agent and therefore insufficient to ground a reasonable
doubt as to the Union's majority status. Without specific
details as to their identity,8 the dates of the conversa-
tions, and the individual statements made, and given the
small number relative to the size of the unit, Respond-
ent's reliance on this evidence must fail. Robertshaw Con-
trols Co., supra at 959; Gregory's Inc., 242 -NLRB 644,
648-649 (1979).9
- Since the union-shop and dues-checkoff provisions
were never incorporated in a collective -bargaining agree-
ment, and the Union chose not to enforce the union se-
niority agreement absent a full agreement covering
wages, hours, and other terms and conditions of employ-
ment , Respondent cannot rely on the absence of union
submission to it of executed dues-checkoff cards. The
Union, which continued to meet periodically with.a con-
tract committee of employees, also adequately explained
its failure to designate a shop steward until it could ade-
quately protect such an individual -under a collective
agreement.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE '
The activities of the Respondent set forth in section II,
above, occurring in connection with their operation de-
scribed in section I, above, have a close, initimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
Having- found that the Respondent has engaged in
'unfair labor practices violative of Section 8(a)(5) and (1)
of the Act, I shall recommend below that they cease and
desist therefrom and take certain' affirmative actions de-
signed to effectuate the policies of the Act.
On the basis of the foregoing findings of fact, and on
the entire record in this proceeding, I make the follow-
ing
8 There is no way of knowing , e g, whether the same employees spoke
to both Ott and Richardson . None was identified If they were the same
employees, a not unreasonable conclusion , then the total number of such
employees did not exceed 20
9 Contrary to Respondent 's brief, the employees did not rely on any
-report from supervisors concerning employee antiunion sentiment, Rich-
ardson admitting he never reported to Ott -his conversation with Marlin
about majority employee interest in a "recertification vote" in early 1982
The liners reliance on Sofco. Inc., 268 NLRB 159 (1983 ), is also mis-
placed , since the facts on which the employer there relied to support a
good-faith and reasonably grounded doubt of the union 's continued ma-
jonty status, and which the Board found were sufficient - to support such
a doubt , were not present on the instant record In Sofco every employee
with one exception expressed opposition to the union, specific conversa-
tions with a number of identified individuals were adduced, and the evi-
dence was corroborated by the proliferation of anitumon signs in the
plant and employee hostility toward the union steward. •
VIP LIMOUSINE 879
CONCLUSIONS OF LAW
1. Respondent VIP Limousine, Inc. is now, and has
been at all material times, an employer engaged in com-
merce within the meaing of Section 2(2), (6), and (7) of
the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 145, is, and has been at all material times, a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. All drivers employed by Respondent at its Stam-
ford, Connecticut facility but excluding, office clerical
employees, dispatchers, mechanics, managerial employ-
ees and guards, professional employees and supervisors
as defined in the Act constitute a unit appropriate for
collective bargaining, within the meaning of Section 9(b)
of the Act.
4. At all times material herein, Local 145 is and has
been the exclusive collective-bargaining representative of
all of the employees in the unit found appropriate in
Conclusion of Law 3 for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the Act
5. By withdrawing recognition from Local 145 and re-
fusing to bargain collectively with it as the exclusive col-
lective-bargaining representative, of the employees em-
ployed in the unit found appropriate in Conclusion of
Law 3, Respondent herein violated Section 8(a)(1) and
(5) of the Act.
6. By interfering with, restraining , and coercing em-
ployees in the exercise of rights guaranteed them by Sec-
tion 7 of the Act, as found above, the Respondent has
engaged, and is engaging , in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices have a close, in-
timate, and adverse effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend=
edio
ORDER
The Respondent, VIP Limousine, Inc, Stamford, Con-
necticut, its officers, agents , successors, and assigns , shall.
1. Cease and desist from
(a) Refusing to bargain collectively with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union No. 145, as the ex-
clusive bargaining representative of its employees in the
aforesaid appropriate bargaining unit with respect to
wages , hours of work, and any other terms and condi-
tions of employment of these employees.
(b) In any like or related manner interfering with, re-
straining , or coercing employees • in the exercise of the
10 If no exceptions are filed as provided by Sec 10246 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
rights guaranteed them by Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action necessary to
,effectuate the policies of the Act.
(a) Upon request, bargain collectively, with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, Local Union No 145, as
the exclusive representative of the employees in the bar-
gaining unit found appropriate above, with respect to
their wages, hours of work, and other terms and condi-
tions of employment and, if an agreement is reached,
embody it in a signed contract.
(b) Post at Stamford, Connecticut, copies of the at-
tached notice marked "Appendix."" i Copies of the
notice, on forms provided by the Officer-in-Charge for
Subregion 39, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Officer-in-Charge in writing within 20.
days from the date of this Order what steps the Re-
spondent has taken to comply.
" If this Order is enforced by a Judgment of a United States Court of
Appeals, the 'words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, and has ordered us to
post this notice.
WE WILL NOT refuse to bargain collectively regarding
wages, hours of work, and any other terms and condi-
tions of employment with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 145, as the exclusive bargain-
ing representative of our. employees in a bargaining unit
consisting of all our drivers employed at the Stamford,
Connecticut facility but excluding office clerical employ-
ees, dispatchers, mechanics, managerial employees and
guards , professional employees and supervisors as de-
fined in the Act.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce any of our employees in the ex-
ercise of the rights guaranteed by Section 7 of the Act.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, on request , bargain collectively with Inter- hours of work, and other terms and conditions of em-
national Brotherhood of Teamsters, Chauffeurs , Ware- ployment, and, if an agreement is reached, embody it in a
housemen and Helpers of America , Local Union No. signed contract.
145, as the exclusive representative of the employees in
the unit described above, with respect to their wages , VIP LIMOUSINE, INC.