Winco Petroleum Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1049 (N.L.R.B. 1980)

WINCO() PIFR()O.LM COMPANY
Winco Petroleum Company and Cooper Oil Compa-
ny, Inc.. Successor Employer and Automotive,
Petroleum and Allied Industries Employees
Union Local 618, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases 14-
CA-10704 and 14-CA-10937
September 30, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING ANI) MEMBERS
JENKINS AND PENELLO
On June 12, 1980, Administrative Law Judge
Marion C. Ladwig issued the attached Supplemen-
tal Decision in this proceeding. Thereafter, the
General Counsel and Respondent filed exceptions
and supporting briefs, and both filed answering
briefs to the various exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions and briefs and has decided to affirm the
rulings, findings,' and conclusions2 of the Adminis-
trative Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
We also find no merit in Respondent's allegation of bias and prejudice
on the part of the Administrative Law Judge. Upon our full consider-
ation of the record and the Administrative Law Judge's Decision, we
perceive no evidence that the Administrative Law Judge prejudged the
case, made prejudicial rulings, or demonstrated a bias against Respondent
in his analysis or discussion of the evidence.
2 We agree with the Administrative Law Judge's conclusion that Re-
spondent Cooper Oil Company, Inc , as the successor to Winco Petro-
leum Company, should be required to bargain with the Union herein. In
so doing, we emphasize that Cooper Oil Company's predecessor had a
bargaining obligation which was based both on N.L.R.B. v Gis.el Pack-
ing Co.. Inc., 395 US. 575 1969)., and on Winco's initial voluntary recog-
nilion and bargaining with the Union In this regard, we note that this
case is distinguishable from NL.R.B. v. Cott Corporation 578 F2d 892
(Ist Cir. 1978), relied on by Respondent, since in that case the Board's
imposition of a bargaining order on the successor had been based solely
on a Gissel bargaining order issued against the predecessor Here, as
noted, the predecessor had also voluntarily recognized the Union. estab-
lishing an additional ground upon which to premise the obligation to bar-
gain, which is now Cooper Oil's responsibility by virtue of its being a
successor employer as described by the Administrative Law Judge
252 NLRB No. 150
Order of the Administrative Law Judge and
hereby orders that the Respondent, Cooper Oil
Company, Inc., successor to Winco Petroleum
Company, Farmington, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
SUPPLEMENTAL DECISION
S ATEM1NNI OF IHIE CASE
MARION C. LAI)WIC;, Administrative Law Judge: On
April 24, 1979,' the Board issued its Decision and Order
(241 NLRB 1118 (1979)) in which it found that Respon-
dent Winco Petroleum (which operated three APCO
self-service retail gasoline stations in Pevely, Festus, and
Oakville, Missouri) had violated Section 8(a)(3) and (1)
of the National Labor Relations Act, as amended, by dis-
criminatorily discharging one employee and reducing the
hours of said employee and two other employees; violat-
ed Section 8(a)(5) and (1) of the Act by unlawfully repu-
diating its recognition of and bargaining with the Union;
and otherwise violating Section 8(a)(1) of the Act. Mean-
while, Respondent Cooper Oil Company (which owned
a chain of Derby gasoline stations in central Missouri
and southern Illinois) purchased all of Winco's stock on
March 6 and continued operation of the business as a
wholly owned subsidiary for about 4 weeks. Then on
April 2 it merged Winco into Cooper Oil, continuing to
operate the three APCO retail stations-under the same
station names and the same APCO brand-in a new divi-
sion with an office at the former Winco office in Pevely
about 50 miles from Cooper Oil's headquarters in Far-
mington.
A controversy having arisen over the amount of back-
pay due and over Cooper Oil's obligation to remedy the
unfair labor practices, the Regional Director issued a
backpay specification on November 7, 1979, alleging that
Cooper Oil is a successor of Winco, and that Winco and
Cooper Oil are jointly and severally liable for the back-
pay due the three employees and for remedying the
unfair labor practices pursuant to the Board's Order
issued against Winco, its officers, agents, successors, and
assigns.
At the supplemental hearing held in St. Louis, Missou-
ri, on December 5-6, 1979, the primary issue was wheth-
er Cooper Oil had knowledge before March 6 of the
unfair labor practice proceeding and was obligated as a
successor to remedy the predecessor's unfair labor prac-
tices, including the refusal to bargain.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and
Cooper Oil, I make the following:
I All dates are from August 1978 through July 1979 unless otherwise
indicated.
1W49
DECISIONS OF NATIONAL LA13()OR RELATIONS BO()ARD
FINI)IN6S ANI) CONCIUSIONS
A. Background
William Cooper, the president of Cooper Oil, had been
acquainted with Wilmer Buechting, Sr., president of
Winco Petroleum, for about 12 or 15 years. They knew
each other as members of a gasoline marketers associ-
ation which met several times a year and published a
newspaper, and from being in the same business in the
same area. Two of their stations, Winco's APCO retail
station in Festus and Cooper Oil's Derby retail station in
Crystal City, were located only about a mile apart.
All of Cooper Oil's Derby retail and dealer stations
and all three of Winco's APCO retail stations were non-
union.
In the spring of 1977, before the Union began an orga-
nizing drive at Winco's three retail stations, Cooper
became interested in purchasing Winco as well as Twin
City Oil Co. (a separate company owned by the Buecht-
ing family), which held the title to Winco's stations and
which also owned three APCO dealer stations. Buecht-
ing Sr. offered to sell the capital stock of both companies
to Cooper, showed him the most recent I-year profit and
loss statements and balance sheets for the two companies,
and reached a tentative sales price. However, Buechting
Sr. decided instead to sell the Winco stock to his son,
Wilmer Buechting, Jr., who would take over much of
the operation of the business, and the sale to Cooper was
not consummated at that time.
That summer, the Union conducted an organizing
campaign among the employees of Winco's three retail
stations, and Winco voluntarily recognized the Union as
the bargaining agent and commenced contract negotia-
tions on August 26, 1977. However, Winco thereafter re-
pudiated the recognition and engaged in conduct which
the Union herein charged, on September 14 and Novem-
ber 22, 1977, to be violations of Section 8(a)(l), (3), and
(5) of the Act. As testified by Buechting Sr., "I don't
think" the NLRB case "was a secret." The hearing was
held for 8 days during a 3-week period in January 1978
(plus I day in February) in Crystal City where one of
Cooper Oil's retail stations is located. (Some indication
of the knowledge which competing Winco and Cooper
Oil had of each other's operations was given by Winco's
Manager and corporate secretary, James Partney, who
later became Cooper Oil's division manager over its new
northern division. He testified that, when he was re-
tained by Cooper Oil as manager over the Winco sta-
tions, he already knew how Cooper Oil had operated be-
cause "they have a station there in town," referring to
Cooper Oil's Crystal City station about a mile from
Winco's Festus station.)
Most of the legal expenses connected with the NLRB
litigation was paid by Winco in its 1978 fiscal year
(which began on August I and ended on July 31, 1978).
Winco's general journal (G.C. Exhs. 25 and 26) shows
payments of $15,567.48 on February 27 and $8,702.75 on
May 24, 1978, for "Legal Fees" paid to Winco's attor-
neys in the NLRB proceeding. These fees, totaling
$24,270.23, were shown as "Legal and Professional" ex-
penses on Winco's fiscal 1978 profit and loss statement,
which Winco's accountant furnished to Winco in August
shortly after the end of the 1978 fiscal year.
On October 25, Administrative Law Judge Herzel
Plaine issued his Decision herein. He found that Winco
had discriminatorily discharged Judy Shepherd Oster
and had discriminatorily reduced the work hours of
Oster, Betty Meyer, and Gloria Broombaugh. He found
that Winco committed various independent 8(a)(1) viola-
tions. He also found that, "[b]y repudiating the recogni-
tion and bargaining on approximately September 2
[1977], except for the I day of bargaining, no time for
bargaining had elapsed, and [Winco's] refusal to bargain
since September 2 violated Section 8(a)(5) and (1) of the
Act." However, he found that the bargaining order
should be issued as of August 27, 1977, because a bar-
gaining order was also necessary to remedy the unfair
labor practices under N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575, 613-615 (1969), and August 27 was
the date on which Winco "embarked on its course of un-
lawful conduct."
In November Winco offered reinstatement to employ-
ee Oster; in December it filed exceptions to the Adminis-
trative Law Judge's Decision; and in January Buechting
Sr. again engaged in negotiations to sell Winco and Twin
City to Cooper Oil. In connection with these negotia-
tions, Buechting Jr. requested the Winco accountant to
prepare supplemental financial statements for the 5-
month period since the 1978 fiscal year, falsely telling
the accountant that "his bank was after him about a fi-
nancial statement." The 5-month profit and loss state-
ment and balance sheet (G.C. Exh. 2), for the period
from August I through December 31, did not of course
show the large expenditure for the legal fees (totaling
$24,270.23) paid by Winco in fiscal year 1978 for the
NLRB litigation.
B. Purchase of Winco Stock and Merger
By late January, Buechting Sr. and Cooper had
reached an agreement for Cooper Oil to purchase from
Buechting Sr. and from Buechting Jr. and his wife all of
the shares of stock in both Winco and Twin City for the
total amount of $850,000, paying in cash and other con-
siderations, including promissory notes totaling $652,000
($500,000 payable to Buechting Sr. and $152,000 payable
to Buechting Jr. and his wife).
The purchase agreement and other documents (includ-
ing one designating Cooper as the sole director of
Winco) were signed on March 6. The Winco business
was continued without any hiatus and with the same per-
sonnel. Manager Partney (who was on the Twin City
payroll and who was responsible for Twin City's three
APCO dealer stations as well as supervising Winco's
cashiers) continued, upon the prior request of President
Cooper, as manager over the three Winco retail stations,
and he continued to oversee the three Twin City dealer
stations. On March 7 Cooper authorized Partney to put
in some raises at the Winco stations and assigned him the
additional responsibility of selecting a manager and assis-
tant manager at each of the three Winco stations. (When
asked by the Cooper Oil counsel if Cooper specifically
told him the assistant managers-as well as the manag-
1050
WINCO PETROLEUM COMPANY'
ers-would have the authority to hire and fire. Partney
answered, "I'm not sure." When asked a second time, he
claimed, "I'm sure he did," but added that he was "not
certain" of that.) On the same day, Partney demoted
Night Supervisor Vandiver, making Vandiver manager
of Winco's Oakville retail station, and promoted cashiers
Gloria Broombaugh and Bill Rose to station managers at
Winco's Pevely and Festus stations. (When asked when
he selected the assistant managers, Partney answered he
did not know, "It was shortly after, it could have been
as much as a month" later.) Winco continued in oper-
ation through March 31 with the Winco employees re-
maining on the Winco payroll under the Winco insur-
ance during that time.
On April 2, Winco Petroleum, Inc., and Twin City
Oil, Inc. (then wholly owned subsidiaries) were merged
into Cooper Oil Company, Inc. (the parent company),
under a provision in paragraph 1(C) of the articles of
Merger (G.C. Exh. 19) that Cooper Oil, "as the surviv-
ing corporation, shall be responsible and liable for all of
the liabilities and obligations [emphasis supplied] of' Twin
City and Winco. The cashiers at the three Winco retail
stations were then placed on the Cooper Oil payroll
under the Cooper Oil insurance program (and later its
pension plan). Partney was made division manager over
a new northern division, which includes the three former
Winco retail stations in Pevely, Festus, and Oakville, the
three former Twin City dealer stations (all six of which
are still operated under their same names as APCO sta-
tions), and one Derby station (Cooper Oil's retail station
in Crystal City). The office for the northern division is
the former Winco office in the building where the
Pevely retail station is located.
At the supplemental hearing, the parties stipulated that
the total net backpay due Judy Shepherd Oster is
$7,606.30 for the period from August 25, 1977, through
December 12, 1978; the amount due Betty Meyer is
$510.68 for the period from August 25, 1977, to March
16, 1979; and the amount due Gloria Broombaugh is
$551.50 for the period from August 25, 1977, through
March 16, 1979.
C. Prior Notice of NLRB Proceeding
1. Contentions of the parties
The General Counsel contends that Cooper Oil pur-
chased Winco with prior knowledge of Winco's unfair
labor practices and that, as a successor employer to
Winco, it is obligated to remedy these unfair labor prac-
tices.
Cooper Oil admits in its brief that it is a successor of
Winco. It argues:
In the landmark case of Perma-Vinyl Corp., 164
NLRB 968 (1967), the Board concluded that
achievement of the national labor policy under
NLRB demanded successor responsibility for a pre-
decessor's unfair labor practices under certain limit-
ed circumstances. Thus, two principle prerequisites
for successor liability emerged in Perma-Vinyl: (1)
there must be a substantial continuation of the pre-
decessor's employee complement and methods, and
(2) the successor must have had actual or construc-
tive notice at the time of the acquisition of the out-
standing unfair labor practice charges. Respondent
Cooper Oil Company, Inc., concedes the existence
of the first prerequisite, but strongly denies the exis-
tence of the second.
Cooper Oil also contends that the testimony of Buecht-
ing Sr., Partney, and Cooper "clearly established that
Mr. Cooper did not have actual knowledge of the unfair
labor practice charges (or of the bargaining order) until
his receipt of the Board's Decision on or about April 31,
1979." It further contends that the only evidence tending
to contradict this "reliable" testimony is the testimony of
Von Vandiver, "who should not be considered a reliable
or credible witness."
2. The evidence
According to William Cooper, president of Cooper
Oil, he knew nothing about the Union's organizing the
Winco employees in the summer of 1977, nothing about
the NLRB hearing in Crystal City (where one of his
retail stations is located) in January and February 1978,
and nothing about the Union or the unfair labor practice
charges prior to April 30, 1979, when he received a copy
of the Board's April 24 Decision and Order.
President Cooper admitted that Buechting Sr, had
given him both Winco's and Twin City's financial re-
ports for the last full fiscal year during his 1977 negotia-
tions to purchase those two companies. In the January
1979 negotiations, as Cooper admitted, Bechting Sr.
again gave him Twin City's financial reports for the last
full fiscal year. However, Cooper claims that Buechting
Sr. did not give him Winco's financial reports for the last
full fiscal year (reports which Buechting Sr. received in
August 1978, covering the fiscal year which ended on
July 31, 1978). Cooper claims that Buechting Sr. instead
furnished him with Winco's balance sheet and profit and
loss statement covering a 5-month period (from August 1
through December 31) "to help me make my determina-
tion as to whether or not I wanted to buy the company."
He also claims that he did not ask Buechting Sr. why a
5-month period was picked, and did not see any other
Winco financial records. Thus, by claiming that he did
not see the fiscal 1978 profit and loss statement, which
showed Winco's expenditure of $24,270.23 in legal fees
for the NLRB litigation (and also claiming that he did
not inquire about the $906.22 "Legal and Professional"
expenses on the 5-month profit-and-loss statement),
Cooper was able to deny that he had ever heard of the
pending NLRB case. (I discuss his credibility later.)
Cooper also positively denied that the word "union"
came up during his 1979 negotiations with Buechting Sr.
To the contrary, Buechting Sr. finally admitted on the
stand that his "union problems" were mentioned in his
negotiations with Cooper. (When called as a witness,
Buechting Sr. appeared to be endeavoring to support
Cooper's testimony. As found above, he was holding
Cooper's promissory note for $500,000.) Buechting Sr. at
first positively denied that he recalled telling Cooper that
he was "getting out of business because of Union prob-
1051
-DECISIONS OF NATIONAL LABOR RELATIONS O()ARD
lems." He claimed that the only reasons he gave for
wanting to get out of the business were the gasoline
supply problem and the fear of going bankrupt. At that
point, however, the General Counsel showed him para-
graph 11 of his affidavit (G.C. Exh. 30, taken in the
office of the Cooper Oil counsel on July 26), in which
Buechting Sr. swore that he told Cooper in January 1979
that he was having "employee problems, problems with
the Department of Energy, and union problems. Cooper
did not question me about any of the problem areas . . .
I just mentioned these problem areas as reasons why I
wanted to sell and Cooper did not explore them [empha-
sis supplied]." (In par. 12 of the affidavit, he added, "I
never mentioned anything about the union again as I
didn't want to blow the sale.") Buechting Sr. then testi-
fied:
Q. Having read your affidavit, do you now recall
telling Bill Cooper that you were having employee
problems, problems with the Department of
Energy, and union problems? Do you recall saying
that to Bill Cooper?
A. Yes, in the conversational way. This was not
one of my reasons for selling. [Emphasis supplied.]
Buechting Sr. later claimed that, when he mentioned the
union subject in the January negotiations, "I mentioned
that as a problem in our area with businesses." However,
if he had been referring to the problem of unions orga-
nizing businesses generally in the area, he undoubtedly
would not have added in his affidavit that he "never
mentioned anything about the union again as I didn't
want to blow the sale."
Thus, contrary to President Cooper's positive denial
that the subject came up during the January negotiations,
Buechting Sr. admitted in his affidavit, and finally on the
stand (although he attempted later to retract it), that he
did mention to Cooper about his "union problems," and
that Cooper made no response. (The General Counsel
contends that Cooper's silence indicates that Cooper was
already familiar with the Union's organizing and Winco's
NLRB litigation.)
Buechting Sr. also denied showing President Cooper
the fiscal 1978 profit and loss statement (which he had
received from the Winco accountant in August, reveal-
ing the payment of $24,270.33 in legal fees for the NLRB
litigation), claiming that the 5-month profit-and-loss
statement and balance sheet (covering August through
December) would give Cooper an "accurate figure" on
Winco's financial condition. When asked if Cooper
would have been aware of the "very expensive" (NLRB)
litigation if Cooper had seen the 1978 financial statement,
he claimed, "I didn't give that a thought." He also
claimed that he himself had asked Winco Accountant
Lloyd Moore to prepare the 5-month statement "for the
purpose of showing it to Bill Cooper," and that Buecht-
ing Jr. took no part in the negotiations with Cooper.
Other credited testimony, however, indicates not only
that Buechting Jr. was involved in the negotiations, but
also that he and his father were considering the problem
of Cooper's buying the Winco stock from Buechting Jr.
and his wife without the NLRB Order being enforceable
against the new owner.
As credibly testified by Winco Accountant Moore, it
was not Buechting Sr. who requested him to prepare the
5-month financial reports (specifically to show to
Cooper), it was the son, Buechting Jr. (then president of
Winco) who made the request, telling Moore that "his
bank was after him about a financial statement." (Thus,
at the time the Buechting father and son were concealing
from the Winco accountant the reason they wanted a
supplemental profit and loss statement.) Also, in January
Buechting Jr. revealed to Winco Night Supervisor Von
Vandiver (with whom Buechting Jr. often discussed the
NLRB litigation) that Buechting Jr. was involved in the
matter. In one conversation, as Vandiver credibly testi-
fied, he asked Buechting Jr. what was going on in the
"union deal" (referring to the NLRB litigation), and
Buechting Jr. "told me that he had told his attorney to
drop the matter, that he wasn't going to pursue it any-
more." Then early one morning Buechting Jr. tele-
phoned Vandiver, and advised him that "they were
going to sell the company to Cooper Oil Company" and
that "he had told Mr. Cooper that I was a good employ-
ee" and that Cooper "should keep me on," although
Cooper Oil had only station managers and not a "roving
manager" (Vandiver's role as a night supervisor over the
Winco stations). Still later, in February Vandiver saw
Buechting Jr. in the office reviewing one of the docu-
ments in the pending NLRB case and asked him "how it
would affect Mr. Cooper." Buechting Jr. responded that
"he didn't believe the Judge's [October 25] decision
would be enforceable on a new owner." Vandiver then
asked "if Bill Cooper knew about Winco being involved
in this, in the NLRB case," and Buechting Jr. answered,
"Yes, he's aware of it." Buechting Jr. did not indicate
how he knew that Cooper was aware of the NLRB liti-
gation. However, I consider his belief that Cooper was
aware of the unfair labor practices is relevant to a deter-
mination of why the Buechtings concealed from the
Winco accountant the fact that they wanted a supple-
mental financial report to give to Cooper (a report
which would not put Cooper on formal notice of the
NLRB litigation through the large legal fees on the fiscal
1978 profit-and-loss statement), and why Buechting Jr.
made statements to Vandiver that he was directing the
Winco attorney to drop the appeal in the NLRB case,
that the NLRB case "would not affect Mr. Cooper," and
that he did not believe "the Judge's decision would be
enforceable on a new owner," (In its brief, Cooper Oil
vigorously attacks Vandiver's credibility, and argues in
support of the credibility of the Buechtings-despite the
earlier finding by Administrative Law Judge Plaine that
some of their testimony was "incredible." While testify-
ing on the stand, Vandiver impressed me most favorably
as an honest, forthright witness, who had a good recall
of what had happened, whereas both the Buechting
father and son appeared less than candid.)
3. Cooper's credibility
A key issue in this proceeding is the credibility of
President Cooper, who denied that he saw Winco's fiscal
1052
WINC() PETROLEUM COMPANY
1978 profit-and-loss statement (showing the large expen-
diture of legal fees in the NLRB litigation) and who
denied that he knew anything about the union organizing
and the unfair labor practice charges until April 30 when
he received a copy of the Board's April 24 Decision and
Order. In weighing his credibility, I take into consider-
ation some of the positions he took prior to the supple-
mental hearing herein.
On June 22, the Cooper Oil counsel wrote a letter to
the NLRB Region 14 Compliance Officer, disclaiming
any responsibility on the part of Cooper Oil to remedy
the Winco unfair labor practices. President Cooper ad-
mittedly provided the counsel with the "facts" contained
in this statement on behalf of Cooper Oil. I find that
many of these so-called "facts" reflect unfavorably on
Cooper's credibility.
Contrary to the undisputed evidence at the supplemen-
tal hearing, the position letter (G.C. Exh. 5) stated that
Cooper Oil purchased Winco on March 1; that Cooper
Oil "offered employment to Winco employees at the
time of the sale and they accepted employment with
Cooper"; that "six former rank-and-file employees of
Winco were named supervisors for Cooper Oil at the
time of the sale"; that Managers Vandiver, Broombaugh,
and Rose, and Assistant Managers Meyer, Behr, and
Roberts, all former Winco rank-and-file employees, were
the supervisors "operating the three facilities at issue on
March 1, 1979"; and that "[f]rom the date of closing of
the sale, March 6, 1979, Cooper Oil Company operated
the three facilities at issue, along with all of its other fa-
cilities, as Cooper Oil Company, and not "through
Winco Petroleum." (It is undisputed that Cooper Oil
purchased the Winco stock on March 6; on that date all
of the employees remained on Winco's payroll; none of
the station managers or assistant managers was appointed
either on March 1 or March 6; and Winco employees re-
mained on the Winco payroll through March 31.) At the
supplemental hearing, Cooper admitted having been told
by Buechting Sr. that one of the new station managers,
Vandiver, had been a night supervisor, but claimed that
he did not know the meaning of "rank-and-file" employ-
ee. He admitted that the station managers and assistant
managers were not appointed on the date of the sale, and
claimed that he did not know when they were appoint-
ed.) I find it obvious that Cooper fabricated much of the
information in the position letter in order to mislead the
NLRB regional staff during the Region's investigation of
Cooper Oil's status as a successor of Winco. (I also find
to be fabricated Cooper's testimony that, when he went
to lunch with Buechting Sr. and Buechting Jr. immedi-
ately before he held the second negotiating meeting with
Buechting Sr. in January 1979, "Not to the best of my
knowledge" did Buechting Jr. know that the sale of the
business "was the purpose of the meeting.")
Concerning Cooper's claim that he purchased the
Winco stock on March 6 without knowledge of Winco's
unfair labor practices, and that he first became aware of
the union organizing and the NLRB litigation when he
received the Board's Decision and Order (on April 30, as
he claimed at the supplemental hearing, or "on or about
May 8" as he claimed in his counsel's June 22 letter to
the Region 14 Compliance Officer), there is direct evi-
dence to the contrary.
Cooper's earlier knowledge was revealed by James
Partney, former Winco manager and corporate secretary,
who was retained by Cooper to manage the Winco sta-
tions in March and who was made division manager
over Cooper Oil's Northern Division when Winco was
merged into Cooper Oil on April 2. (Partney had testi-
fied on Winco's behalf concerning employee Oster's dis-
criminatory discharge in the hearing before Administra-
tive Law Judge Plaine, who found that Partney was a
statutory supervisor-before he became the corporate
secretary for Winco. Although Partney claimed at the
supplemental hearing that he had not used his authority
to hire and fire Winco employees, he stated in his July
30 affidavit that he did "hire and fire employees" for
Winco.)
About the third week in April, a week or more before
Cooper claimed he first learned about the NLRB litiga-
tion, the northern division manager, Partney, went to the
APCO station in Oakville (where Partney, as the Winco
manager, on March 7 reassigned Von Vandiver from his
position as night supervisor to station manager) and
talked to Vandiver about making one of his cashiers an
assistant manager. As Vandiver credibly testified, Part-
ney said he would talk to Betty Meyer (one of the discri-
minatees in the NLRB proceeding) about working on
Sunday nights to give Vandiver a day off. Vandiver pro-
tested that he did not like the idea: "I didn't really want
to even keep Betty Meyer employed there." However,
Partney said "he and Mr. Cooper talked it over, and if
anything ever happened with the union case [referring to
Winco's NLRB proceeding] that they could claim that
Betty Meyer was my asaistant manager" and "avoid
problems with the Union by claiming Meyer was man-
agerial if the union came back in." However, Partney
"assured me that she wouldn't have any managerial func-
tions." Vandiver asked if there was still something going
on with the Union, and Partney answered, "Not a whole
lot but Cooper had a "hotshot" or "big time lawyer who
didn't think there was much of a case." (I discredit the
denials by Partney and Cooper, both of whom from their
demeanor on the stand appeared to be more concerned
with supporting Cooper Oil's cause than giving an accu-
rate account of what actually happened.)
Thus, a week or more before President Cooper re-
ceived a copy of the Board's Decision and Order herein,
he already knew that cashier Meyer was involved in
Winco's pending NLRB case. This evidence also belies
Cooper's position, taken in the June 22 letter to the Re-
gional Office, that three Winco employees were promot-
ed to supervisory assistant managers at the three Winco
retail stations on March 1.
4. Findings of actual knowledge
After weighing all the evidence, and considering all
the arguments in the parties' briefs, I find that President
Cooper did have actual knowledge of Winco's unfair
labor practices before March 6 when Cooper Oil pur-
chased all outstanding shares of Winco's stock from
Buechting Jr. and his wife.
1053
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
I discredit the claims that Cooper was shown only
Winco's financial reports covering a 5-month period and
not the profit-and-loss statement for the last fiscal year
reflecting the large legal fees incurred by Winco in the
NLRB litigation. From all the evidence I infer, contrary
to Buechting Sr.'s claim that he did not give it a thought
that Cooper would be aware of the very expensive
NLRB litigation if he saw the 1978 financial statement,
that, when Buechting Jr. requested the Winco accoun-
tant to prepare the 5-month financial reports (falsely ad-
vising the accountant that the "bank" was "after him
about a financial statement"), the Buechting father and
son were engaged in a maneuver to assist Cooper in
building a defense that he was purchasing the Winco
stock without knowledge of the unfair labor practices. I
also find that Cooper was also attempting to build such a
defense, after receiving a copy of the Board's Decision
and Order, when he disclaimed prior knowledge in a
letter to Winco's labor counsel in early May and in let-
ters to the NLRB Regional Office in early May and on
June 22.
D. Obligations of a Successor
1. Continuation of business
Employees at three self-service APCO gasoline sta-
tions are involved in this proceeding. As found, Winco,
on August 26, 1977, voluntarily recognized and bar-
gained with the Union in a bargaining unit of these em-
ployees. Thereafter, as Administrative Law Judge Plaine
found in his October 1978 Decision, Winco unlawfully
repudiated the recognition and bargaining and committed
a number of unfair labor practices in violation of Section
8(a)(l), (3), and (5) of the Act. On March 6, 1979, before
the Board issued its April 24, 1979, Decision and Order
affirming Administrative Law Judge Plaine's findings
and conclusions, Cooper Oil purchased all of the Winco
stock with actual knowledge of Winco's unfair labor
practices, as found herein. On March 6 it continued op-
erating the business with the same employees, without
any hiatus, at the three APCO stations, and thereafter
operated Winco as a wholly owned subsidiary through
March 31. On April 2 Cooper Oil merged Winco into
Cooper Oil, thereby assuming "responsibility and liability
for all of the liabilities and obligations" of Winco.
During the week ending April 4, after the merger,
Cooper Oil employed 19 persons at the three APCO self-
service stations. A total of 13 of these 19 persons had
been employed by Winco on February 28, before Cooper
Oil purchased the Winco capital stock, and 15 of the 19
were employed on March 31, before the merger. (G.C.
Exh. 9.) A total of 3 of the 19 employees were supervi-
sors on April 4 (Oakville Station Manager Vandiver, for-
merly Winco's night supervisor, and Station Managers
Broombaugh and Rose at the Pevely and Festus stations,
formerly Winco employees), leaving 16 bargaining unit
employees at the 3 APCO stations. A total of 12 of these
16 employees were Winco employees before March 6.
On July 30, at the time Division Manager Partney gave
his affidavit (G.C. Exh. 21, par. 22), there were about 15
employees working at the 3 APCO retail stations, about
13 of whom formerly worked for Winco. As estimated
by Partney, Cooper then employed a total of about 60
employees at all of its retail stations--about 15 at 3 high
volume APCO retail stations and about 45 at the remain-
ing 17 lower volume Derby retail stations. (I note that
Cooper claimed at the supplemental hearing that there
were about 20 Winco employees, not including part-time
help, who were retained on March 6, and that today he
has 20 retail stations, 6 dealer stations, a work force of
"around 100," only approximately 9 of whom are former
Winco employees and about 3 or 4 of whom are now
cashiers. However, Cooper has given so much mislead-
ing "information" in this proceeding that I cannot rely
on the accuracy of this unsupported testimony.)
Former Winco employees in the bargaining unit still
work at the same three retail stations under one of the
same managers (Partney). Although they are now
Cooper Oil employees with similar benefits, they are
paid somewhat higher wages than the employees work-
ing in Cooper Oil's two other divisions "due to the high
cost of living in the St. Louis metro area." (G.C. Exh.
10, par. 27.) Although these three stations are included in
Cooper Oil's northern division with one nearby Derby
station (and with the three former Twin City dealer sta-
tions whose employees are not involved in this proceed-
ing), the three former Winco stations are not operated
under the name "Cooper Oil Company," nor under the
Derby brand, but they are stations with a "lot higher"
volume and are operated separately to the extent that
they are still operated under the former station names as
APCO stations. (G.C. Exh. 10, par. 16.)
2. Contentions and concluding findings
The General Counsel contends that Cooper Oil is a
successor to Winco, that it purchased Winco with prior
knowledge of Winco's unfair labor practices, and that it
is obligated to remedy these unfair labor practices, in-
cluding Winco's unlawful repudiation of its recognition
of and bargaining with the Union. He argues, "The Su-
preme Court and Board rule is well established that a
successor employer which purchases a predecessor em-
ployer with knowledge of its unfair labor practices will
be obligated to remedy the unfair labor practices."
Golden State Bottling Company, Inc. formerly Pepsi-Cola
Bottling Co. of Sacramento, et al. v. NL.R.B., 414 U.S.
168 (1973); Perma Vinyl Corporation, Dade Plastics Co.
and United States Pipe and Foundry Company, 164 NLRB
968 (1967). The General Counsel also argues that, if the
evidence does not establish that President Cooper had
actual knowledge of the Winco unfair labor practices,
such knowledge should be imputed to Cooper Oil be-
cause of the carry over of managerial people. Alternati-
vely, the General Counsel contends that there was a
mere change of ownership of stock on March 6; that
Winco had a continuing obligation to remedy its own
unfair labor practices; and that on April 2, when Winco
(then a wholly owned subsidiary of Cooper Oil) was
merged into Cooper Oil with identical ownership, super-
vision, and control of labor relations, Cooper Oil was
Winco's alter ego, it stood in Winco's shoes, and it had to
remedy the unfair labor practices. The General Counsel
contends that, as held in Topinka's Country House, Inc.,
1054
WINCO PETROLEUM COMPANY
235 NLRB 72, 74 (1978). the "Hoard has consistently
held that mere change of stock ownership does not ab-
solve a continuing corporation of responsibility under the
Act."
As indicated above, Cooper Oil conceded in its brief
that it is Winco's successor, there being "a substantial
continuation of the predecessor's employee complement
and methods," but it "strongly denies that it had actual
or constructive notice at the time of the acquisition of
the outstanding unfair labor practice charges." It denies
that the purchase of stock imputes the predecessor's
knowledge of his unfair labor practices to the successor,
contending that as far as labor law is concerned, there is
absolutely no difference between a stock purchase and a
sale of assets, merger, or bankruptcy sale. It denies that it
was Winco's alter ego between March 6 and April 2.
Alas, ignoring the fact that the bargaining order was
based primarily upon Winco's unlawful repudiation of its
recognition of and bargaining with the Union, Cooper
Oil argues that a "Gissel Packing bargaining order"
should not be imposed on the successor.
Having found that President Cooper did have actual
knowledge of Winco's unfair labor practices before
March 6 when Cooper Oil purchased all the outstanding
shares of Winco's stock, I agree with the General Coun-
sel that Golden State and Perma Vinyl are applicable, and
that Cooper Oil is required to remedy Winco's unfair
labor practices. In view of this ruling, I find it unneces-
sary to rule on the General Counsel's other theories.
Accordingly, I find that Cooper Oil must pay the stip-
ulated amount of backpay due Oster, Meyer, and Broom-
baugh, plus interest, and remedy Winco's unfair labor
practices pursuant to the Board's Order. I also find that
the employees at Winco's former Pevely, Festus, and
Oakville retail stations (which continue to be operated
under their former station names as APCO brand sta-
tions) remain an appropriate bargaining unit. I further
find that, by acquiring the Winco business and retaining
all of the employees on March 6 at the three APCO
retail stations, with knowledge of the predecessor's
unfair labor practices, Cooper Oil as the successor as-
sumed the predecessor's obligation to bargain, and that
bargaining is now necessary to remedy the predecessor's
unlawful repudiation of its bargaining with the Union as
the recognized exclusive bargaining representative of em-
ployees in the appropriate bargaining unit.
Upon the foregoing findings and the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 2
The Respondent, Cooper Oil Company, Inc., successor
to Winco Petroleum Company, Farmington, Missouri, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
2 In the event no exceptions are filed as provided by Sec. 102 4 of the
rules and Regulations or the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided il
Sec 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings. conclusions, and Order, and all objections hereto
shall e deemed waived fr all purposes
(a) Coercively interrogating its employees concerning
their signing of union authorization cards, signing by
other employees, who among them was responsible for
starting the signing, why they needed the Union. or
whether they would support the Union if there were
picketing.
(b) Creating the impression of surveillance of employ-
ee union activities.
(c) Threatening employees, if they bring the Union in.
with closing the stations or making working conditions
more onerous.
(d) Threatening employees, if they bring the Union in,
with reduction in working hours or vacation benefits or
with delayed payment for scheduled paid vacation time.
(e) Threatening employees, if they bring the Union in,
that communication with management on problems will
be barred.
(f) Importuning and soliciting employees to obtain
return from the Union of signed authorization cards.
(g) Promising or granting employees preferred time off
to encourage their assistance to Respondent in opposing
the Union and to discourage their support of the Union.
(h) Warning employees not to communicate grievances
to a union representative.
(i) Discharging, reprimanding, or otherwise disciplin-
ing employees, or reducing the hours of work of employ-
ees, because they engage in activities for, or support, the
Union.
(J) Altering the vacation policy or practice to reduce
vacation benefits, or instituting a reprimand system, be-
cause employees engage in activities for, or support of,
the Union.
(k) Discouraging employees from support of or meill-
bership in the Union, or any other labor organization, by
discharge, layoff. a reduction in hours of work or \vaca-
tion benefits, or other discrimination affecting their
tenure or conditions of employment.
(1) Refusing, upon request, to bargain with the Union
as the exclusive collective-bargaining representative of
Respondent's employees in the following appropriate
unit:
All station employees employed at Respondent's
gasoline sales stations in Pevely, Festus, and Oak-
ville, Missouri, comprising regular cashiers, regular
relief cashiers, and the night maintenance or utility
employee, but excluding office bookkeepers or
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
(m) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action neceasary to
effectuate the policies of the Act:
(a) Make whole Judy Sheperd Oster, Betty Meyer, and
Gloria Broombaugh by paying them $7,606.30, $510.68,
and $551.50, respectively, plus interest as computed in
Florida Steel Corporation, 231 NLRB 651 (1977), less tax
withholdings as required by law.
1()55
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Expunge from Respondent's records any reference
to the reprimand, dated September 28, 1977, discrimina-
torily issued to employee Stephen Henson.
(c) Upon request, bargain collectively with the Auto-
motive, Petroleum and Allied Industries Employees
Union Local 618, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive collective-bargain-
ing representative of the above-described unit of station
employees, with respect to rates of pay, wages, hours,
and other terms and conditions of employment, and, if an
agreement is reached, embody the agreement in a written
contract.
(d) Post in the stations at Pevely, Festus, and Oakvill,
Missouri, copies of the attached notice marked "Appen-
dix.":' Copies of said notice, on forms provided by the
Regional Director for Region 14, after being duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
' In the event the Board's Order is enforced by a Judgtnen (of the
Ulilted States court of Appeals, the words i the notice reading "Posted
by Order of the National I.ahbr Relati(s Board" shall read "Posled Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of Ihe Nation,al lIahor Relations Board."
APPENDIX
No'iTcl To EMIPLOYEE S
PosIl)D BY ORDER OF THE
NAIONAI. LABOR REI ATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after
a hearing and supplemental hearing, that our predeces-
sor, Winco Petroleum Company, violated the National
Labor Relations Act, as amended, we assure you that:
WlI wiLL. NOT coercively interrogate our em-
ployees concerning their signing of union authoriza-
tion cards, signing by other employees, who among
them is responsible for starting the signing, why
they need the Union, or whether they would sup-
port the Union if there were picketing.
WE WI. NOT create the impression of surveil-
lance of our employees' union activities.
WE Wl.. NOT threaten our employees that, if
they bring the Union in, we will close the stations
or will make working conditions more onerous.
WE: Wilt. NOT threaten our employees that, if
they bring the Union in, we will reduce hours of
work or vacation time.
WE. wil.. NOT threaten our employees that, if
they bring the Union in, we will cut off their com-
munication with management on problems.
WI: wil.l NO importune or solicit our employ-
ees to obtain return from the Union of signed au-
thorization cards.
WI: Wll. NOT promise or grant employees pre-
ferred time off to encourage their assistance in our
opposing the Union and to discourage their support
of the Union.
WI: WlI. NOT warn employees against communi-
cating grievances to a union representative.
WI Wtll.l. NOT discharge, reprimand, or otherwise
discipline employees, or reduce their hours of work,
because they engage in activities for, or support, the
Union.
WE WtlLt. NOT alter the vacation policy or prac-
tice to reduce vacation benefits, or institute a repri-
mand system, because employees engage in activi-
ties for, or support, the Union
WI Wll.l. NOT discourage our employees from
support of or membership in the Union, or other
labor organization, by discharge, layoff, a reduction
in hours of work or vacation benefits, or other dis-
crimination affecting their tenure or conditions of
employment.
WI. Wll.l NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Na-
tional Labor Relations Act.
WE; wi.t., upon request, bargain with the Auto-
motive, Petroleum and Allied Industries Employees
Union, Local 618, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive col-
lective-bargaining representative of the bargaining
unit described below, and, if an agreement is
reached, embody it in a written contract. The bar-
gaining unit is:
All station employees employed at our gasoline
sales stations in Pevely, Festus, and Oakville,
Missouri, comprising regular cashiers, regular
relief cashiers, and the night maintenance or util-
ity employee; but excluding office bookkeepers
or office clerical employees, professional employ-
ees, guards, and supervisors as defined in the Act.
WE Wll. . expunge from our records any refer-
ence to the reprimand, dated September 28, 1977,
issued to employee Stephen Henson.
Because the Board found that Winco Petroleum
Company unlawfuly discharged employee Judy
Shepherd Oster and unlawfully reduced the sched-
uled hours of work of employees Judy Shepherd
Oster, Betty Meyer, and Gloria Broombaugh, WE
wi.t. make them whole by paying Judy Shepherd
Oster $7,606.30, Betty Meyer $510.68, and Gloria
105h
WINCO PTROI.F.lJM COMP'ANY 1057
Broombaugh $551.50. plus interest. less tax with-
holdings as required by law.
COOPER 011 COMPANY. SUCCISSOR 10
WINCO P IROI -L:M COMPANY