Bardahl Oil Co.Download PDFNational Labor Relations Board - Board DecisionsMar 7, 1967163 N.L.R.B. 260 (N.L.R.B. 1967) Copy Citation 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bardahl Oil Company and Automotive, Petroleum and Allied Industries Employees Union , Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 14-CA-3978. March 7,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On November 15, 1966, Trial Examiner Melvin Pollack issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Bardahl Oil Company, St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner: This proceeding, heard at St. Louis, Missouri, on September 21, 1966, pursuant to a charge filed on May 23, 1966, and a complaint issued July 26, 1966, presents the question whether Respondent, Bardahl Oil Company, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to bargain collectively with the Charging Union as the exclusive representative of the drivers-salesmen employed by Respondent at its branch office in St. Louis, Missouri. Upon the entire record,' and after due consideration of the briefs filed by Respondent and the General Counsel, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is engaged in the manufacture, sale, and distribution of an oil additive and related products. During the fiscal year ending June 30, 1966, a representative period, Respondent shipped products valued in excess of $50,000 to points outside Missouri. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it would effectuate the policies of the Act for the National Labor Relations Board to assert its jurisdiction in this case. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events Respondent employed five salesmen in the St. Louis area in April 1966.2 Four salesmen signed cards designating the Union as their bargaining agent between April 19 and 22. By letter of April 22, Assistant Business Representative William Shackles notified Vice President Richard F. Fecht that the Union represented a majority of Respondent's salesmen and requested a bargaining meeting. On April 29, Vice Presidents Fecht and Frank A. Gerardot met with Shackles and Carl Gibbs of the Union. Shackles presented cards signed by salesmen Clarence L. Ferguson, Richard N. Foppe, Daniel Lee Roessmer, and Sidney J. Atkinson, Jr., to Fecht and Gerardot. He said the fifth salesman, Frank Meyerkord, had not signed a card.3 Fecht and Gerardot said they had no doubt that the cards were authentic and Fecht said he would present the question of recognition to Respondent's board of directors. He asked Shackles to submit a proposed contract and to furnish copies of the Union's pension plan and health and welfare plan. Shackles gave Fecht a copy of the pension plan and said he would deliver or mail to Respondent a contract proposal and a copy of the health and welfare plan. Shackles delivered these documents to Respondent on May 2. Attorney Dewey Godfrey notified Shackles on May 6 that he was Respondent's "legal counsel" and met with Shackles and Jim Kelly of the Union on May 18. Shackles asked Godfrey if Respondent was going to recognize the Union. Godfrey replied that Respondent had decided to change its method of distribution and would not recognize the Union because it was going "to do away" with its salesmen. Shackles said Respondent's position left the Union "very little alternative" and would "in all probability" lead to a strike. Godfrey said he would report ' Motions by Respondent and the General Counsel to correct ' Meyerkord was hired by Respondent on October 15, 1956, the record are granted and became a branch manager in June 1957 At the time of the ' All dates are in 1966 unless otherwise noted hearing, he was employed by Respondent in the St Louis area as a "resident salesman " on a straight commission basis. 163 NLRB No. 32 BARDAHL OIL CO. 261 the Union's position to Respondent. On May 20, Godfrey told Shackles that Respondent was "very firm" in its position and would "stick to [its] guns." Shackles asked Godfrey "what the new method of distribution would be" and Godfrey replied that it did not include the salesmen. Shackles met with the four salesmen who had signed cards on Sunday, May 22, reported what Godfrey had said to him, and recommended a strike. The men voted unanimously to go on strike the next day. The strike began Monday, May 23." Shackles and Carl Gibbs of the Union met with Attorney Murray Randall, who had replaced Godfrey as Respondent's counsel, on June 23. Randall said Respondent considered the salesmen "management trainees" rather than drivers- salesmen and did not feel "their management should be represented by a union." He showed Shackles minutes of a February 1966 meeting at which Respondent's board of directors had authorized Vice President Gerardot to review its management -trainee program at St. Louis and also showed him Gerardot's subsequent recommendation that the program be discontinued in July." Shackles asked Randall to find out if Respondent would consider using the salesmen "under their new method of distribution" and said the Union "would be glad to discuss any method they might have of changing it to include these" men. Randall said he would check with Respondent. He subsequently advised Shackles that Respondent would not discuss "anything along those lines" with the Union. B. The Duties of the Salesmen Salesmen Ferguson, Atkinson, Foppe, and Roessner were hired on July 26, October 20, and November 4 and 29, 1965, respectively.6 At their hiring interviews, they were told that they would work on a salary plus commission, that they would have a sales territory and would service accounts, and would also collect money due Respondent. They were also told that chances for advancement were excellent and that, depending on their ability as salesmen , they might become branch managers. The salesmen, including Meyerkord, attended training meetings which were conducted approximately once a month by Sales Manager Frank E. Kaveney and Supervisor Charles Ostrander. The salesmen were shown films on sales techniques, and Kaveney and Ostrander gave them "tips on sales" and sometimes showed them how to demonstrate a product Respondent wanted to push. C. Discussion and Conclusions The evidence adduced at the hearing establishes, and Respondent does not dispute, that the Union represents a majority of its salesmen in the St. Louis area. Respondent contends, however, that only Meyerkord, who did not sign a union card, is a regular salesman and that the four striking salesmen are "management trainees" who do not properly belong in any bargaining unit. The pertinent evidence on this issue may be summarized as follows: Respondent distributes its products through distributors and through 11 branch offices. Normally the salesmen in all branch offices work on commission. In 1956, Respondent set up a branch manager training program in St. Louis. Under "phase one" of this program, salesmen are paid a fixed salary plus commission and receive training by supervisors on how to demonstrate and sell Respondent's specialized products. Salesmen with excellent sales records may be selected for "phase two" of the program, during which they receive training from Vice President Gerardot on "how to be a good sales manager." Fourteen trainees became branch managers during the period January 1956-November 1962. Since 1962, Respondent has not filled a branch manager position from the program. Such vacancies have been filled by promoting branch supervisors who are, in effect, assistant branch managers, after they have attended a "class" conducted by Gerardot. While the four strikers were told at their hiring interviews that they might qualify for promotion to a branch manager, they were not assured of such a position, nor was their continued employment made expressly contingent upon their qualifying for such a position. They were never selected for "phase two" of Respondent's training program and worked for Respondent until they struck on May 23 as route salesmen, performing the same work and attending the same sales meetings as Meyerkord, admittedly a regular salesman. In these circumstances, I find that the four strikers are not management personnel and that together with Meyerkord they constitute an appropriate bargaining unit . Cf. Barker- Colman Company, 130 NLRB 478, 480. Respondent also contends that its refusal to bargain with the Union stems from its good-faith belief that the strikers are part of management and therefore, even if wrong in this belief, that its refusal to bargain is not a violation of the Act. The Board holds, however, that an employer's good or bad faith in challenging the appropriateness of a unit does not affect the efficacy of a Section 8(a)(5) proceeding to determine that question. Tom Thumb Stores, Inc., 123 NLRB 833; Hearst Consolidated Publications, Inc., 156 NLRB 210. In any event, the record shows that the strikers had no management attributes whatever and worked as ordinary route salesmen, that Respondent, in apparent recognition of this fact, initially refused to bargain with the Union on the sole ground that it was going to change its method of distribution and let the salesmen go, and that Respondent first claimed that the strikers were "management trainees" after the strike had been in progress for a month. In these circumstances, I find that Respondent's belated claim that all the salesmen but Meyerkord are management personnel is not made in good faith. I therefore conclude, as alleged in the complaint, that Respondent ,iolated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with the Union on and after April 29, 1966, as the representative of its salesmen in the St. Louis area. ' The stoke was contmumg at the time of the hearing on September 21 S The facts pertaining to Respondent 's contention that the striking salesmen are management personnel are summarized, infra " Ferguson answered a newspaper advertisement , reading in part Salesman We are looking for an aggressive salesman, who is ambitious and desires advancement Our branch managers are chosen from this program Monthly salary plus vehicle and expenses, plus all company benefits Experience in selling automotive field specialties preferred, but not essential Age 25-45 Atkinson applied for work with Respondent at Ferguson's suggestion Foppe and Roessner answered an advertisement similar to the one answered by Ferguson 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record establishes that the salesmen struck on May 23 in protest against Respondent's unlawful refusal to bargain with the Union and that Respondent refused on June 23 to discuss with the Union even the "possibility" of using the strikers under any new method of distribution that might be established. I therefore find that the strike was caused and prolonged by Respondent's unlawful refusal to bargain with the Union. CONCLUSIONS OF LAW 1. By refusing to bargain with the Union as the bargaining representative of its salesmen in St. Louis, Missouri, Respondent has engaged in and is engaging in an unfair labor practice affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2. The strike which began on May 23, 1966, is a strike caused and prolonged by Respondent's unlawful refusal to bargain with the Union. THE REMEDY I shall recommend that Respondent cease and desist from its unlawful conduct, and, affirmatively, that it bargain with the Union, upon its request, and post an appropriate notice. Having found that the strike which began on May 23, 1966, was an unfair labor practice strike, I shall recommend that Respondent, upon application by the strikers, offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, all persons hired on and after May 23, 1966, and make the applicants whole for any loss of pay suffered by reason of Respondent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he normally would have earned less his net earnings, during the period from 5 days after the date on which he applies or has applied for reinstatement to the date of Respondent's offer of reinstatement. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, there is hereby issued, pursuant to Section 10(c) of the Act, the following: RECOMMENDED ORDER Respondent, Bardahl Oil Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with the Union as the exclusive bargaining representative of its salesmen at its branch office in St. Louis, Missouri. (b) In any manner interfering with the efforts of the Union to bargain collectively with Bardahl Oil Company, St. Louis, Missouri. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of its salesmen at its branch office in St. louts, Missouri. (b) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions to the salesmen at its St. Louis, Missouri, branch office, who went on strike on May 23, 1966, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, all persons hired on and after that date, and make such applicants whole for any loss of pay suffered by reason of Respondent's refusal, if any, to reinstate them by payment to each of them of a sum of money computed in the manner set forth in the section hereof entitled "The Remedy." (c) Post at its branch office in St. Louis, Missouri, copies of the attached notice marked "Appendix."7 Copies of said notice, to be furnished by the Regional Director for Region 14 of the Board (St. Louis, Missouri), shall, after being duly signed by an authorized representative, be posted by Respondent immediately on receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by other material. (d) Notify the aforesaid Regional Director, in writing, within 20 days from receipt of this Decision, what steps it has taken to comply herewith." ' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain collectively with Automotive, Petroleum and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all employees in the following bargaining unit: All drivers-salesmen at our St Louis, Missouri, branch office, exclusive of office clerical employees, guards, professional employees, and supervisory employees, as defined in the Act. WE WILL, upon application, offer to all strikers at our St. Louis, Missouri, branch office, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may suffer as a ST. LOUIS COUNTY WATER CO. 263 result of any refusal to reinstate them upon such application. BARDAHL OIL COMPANY (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any othei material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directiy with the Board' s Regional Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 622-4154. St. Louis County Water Company and Walter V. Jones . Case 14-CA-4077. March 7, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On November 22, 1966, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief and the Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions and briefs, and ' The General Counsel's exceptions related almost solely to the Trial Examiner's credibility findings upon which he based his recommendation for dismissal On the basis of our own careful review of the record, we conclude that these credibility resolutions are not contiary to the clear preponderance of all the relevant evidence Accordingly, we find no basis for disturbing those findings Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We note that Jones, the alleged discriminatee, was originally employed by Respondent on April 20,1966, as asserted by the General Counsel, rather than on April 8, 1966, as set forth by the Trial Examiner, but deem this discrepancy to be of no significance No exception was taken to the Trial Examiner's findings concerning commerce jurisdiction hereby adopts the findings, conclusions, and recommendation of the Trial Examiner.[ ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: Upon a charge filed August 9, 1966,i by Walter V. Jones, herein Jones, against St. Louis Water Company, herein the Water Company or Respondent, the General Counsel issued a complaint alleging Respondent violated Section 8(a)(3) and (1) of the Act by terminating the employment of Jones because he asked for and took time off to vote in a general primary election for the State of Missouri on August 2. The answer of Respondent denied the commission of any unfair labor practices. This proceeding, with all parties represented, was heard before me at St. Louis, Missouri, on October 17, and at the conclusion of the hearing the parties were granted leave to submit briefs. Briefs were received from the General Counsel and the Respondent on November 7. Upon the entire record in this case and upon my observation of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent has its principal place of business at University City, Missouri , where it is engaged in the manufacture , sale, and distribution of potable water at its water processing plant at Chesterfield , Missouri , the only plant involved in this proceeding. During the calendar year 1965, a representative year, Respondent manufactured , sold, and distributed water valued in excess of $250,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED Utility Workers Union of America, AFL-CIO, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. The Facts Walter V. Jones, the Charging Party, was employed by the Water Company on April 8, 1966, as a groundsman. As a new employee he was subject to a probationary period of 120 days, pursuant to an agreement between the Water Company and Utility Workers Union of America, AFL-CIO, herein the Union. The Water Company and the Union had in effect at all times during the employment of ' Unless otherwise noted all dates refer to 1966 163 NLRB No. 33 Copy with citationCopy as parenthetical citation