Banner Tire Co., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 480 (N.L.R.B. 1984)

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Banner Tire Company, Inc. and Teamsters, Automo-
tive, Petroleum and. Allied Trades, Local Union
No. 50, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case 14-CA-16409
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 18 July 1983 Administrative Law Judge Mi-
chael 0. Miller issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering 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 only to the extent consistent with
this Decision and Order.
The judge concluded that the Respondent's fail-
ure to 'sign and implement a collective-bargaining
agreement with the Union violated Section 8(a)(1)
and (5) of the Act. He found that Union Negotiator
John Gonzales' misrepresentation to Respondent
Negotiator Steven Laiderman regarding the status
of a competitor's wage and pension offer was insuf-
ficient basis to warrant avoidance of the contract
upon which oral agreement had been reached. The
Respondent excepts to the judge's finding and con-
tends that the Union's misrepresentation regarding
the outcome of the ratification vote by employees
of the Respondent's competitor justified avoidance
of the agreement. For the reasons set forth below
we agree with the Respondent's contentions.
The Respondent is engaged in the wholesale and
retail sale of automobile tires in the Belleville, Illi-
nois area. It was a party to a collective-bargaining
agreement with the Union which was effective
from 1 July 1979 to 30 June 1982. 2 On 17 June the
Respondent along with 10 other tire dealers in the
area began negotiations with the Union. The Re-
spondent's counsel Steven Laiderman represented
the employer group and John Gonzales represented
the Union. However, the Employers did not bar-
gain as an association and each bargained for its
own agreement.
By 28 September the Union and the employer in-
cluding the Respondent reached agreement on all
The Respondent has requested oral argument The request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and positions of the parties
2 All dates are in 1982 unless otherwise indicated
bargaining issues except for wages and pension
plan contributions. On 28 September the employ-
ees, excluding the Respondent, proposed to the
Union an annual raise of 40 cents per hour for each
of the 3 contract years and pension payments of
$16, $18.50, and $21 a week during the 3 successive
years. That same day the Respondent's major com-
petitor in the area, the Wells Tire group s (herein-
after Wells) which was conducting separate negoti-
ations and had also reached agreement on remain-
ing bargaining issues, offered the Union a wage and
pension package. The Wells proposal called for a
wage increase of 20 cents per hour in each of the 3
contract years and weekly pension contribution of
$13, $13, and $16 over the 3 contract years.
On 30 September Gonzales called Laiderman.
He advised Laiderman that he would be conduct-
ing a union meeting that night so that the various
employers' employees could vote on the wage and
pension proposals. Laiderman told Gonzales that if
the Wells employees voted for a 20-cent package
that is what he wanted and that he would not
accept a package that was different or for more
money and pension benefits than Wells. He 'further
advised Gonzales that if the Wells employees re-
jected the 20-cent package then he would probably
go along with everyone else. Gonzales was then in-
structed to call Laiderman that evening to inform
him how the employees voted.
That evening at approximately 7 p.m. Gonzales
did call Laiderman and advised him that the Re-
spondent's employees had rejected the 20-cent
package. Laiderman then asked how the Wells em-
ployees voted. Gonzales responded that Wells had
nothing to do with the Respondent because they
were in a different area and that all of the employ-
ers in the Respondent's area had accepted the 40-
cent package. After Laiderman repeated his ques-
tion regarding the Wells vote Gonzales told him
that the Wells employees had rejected the 20-cent
package. Laiderman then stated that "he would go
along with the rest of them," referring to the 40-
cent package.
Gonzales' statement to Laiderman that the Wells
employees had rejected the 20-cent offer was a
misrepresentation. The Wells employees did not
vote on any proposal until after the completion of
the above telephone conversation and they voted
to accept the 20-cent offer.4
_ In December Gonzales sent Laiderman a copy of
the contract with the 40-cent package. Laiderman
3 This group of five stores was bargaining as an association
4 At the hearing, Gonzales admitted that the Wells employees did not -
vote until after his conversation with Laiderman.
273 NLRB No. 73
BANNER TIRE CO 481
refused to sign the contract after learning that the
Wells employees had accepted the 20-cent offer.5
The judge found that Gonzales' statement re-
garding the Wells employees' rejection of the 20-
cent offer was a misrepresentation. However the
judge concluded that it was not a material misrep-
resentation reasoning that, if the Respondent
wanted parity with Wells, the material fact would
have been what wage and pension proposal Wells
agreed to rather than what the Wells employees re-
jected.
Contrary 'to the judge, we conclude that Gon-
zales' misrepresentation to Laiderman was not
made in good faith and justifies the Respondent's
refusal to sign or implement the agreement. The
misrepresentation that the Wells employees had re-
jected the 20-cent package goes to the ultimate
issue of whether the Respondent desired to reach
agreement on the 40-cent package. Here Gonzales
was told specifically that the Respondent wanted
the same wage and pension contract as its competi-
tor and Gonzales as union negotiator was in a supe-
rior position to know how the competitors' em-
ployees voted on the package. It follows that Gon-
zales' deliberate misrepresentation regarding the
Wells employees' vote was intended to and had the
effect of inducing the Respondent to accept the 40-
cent package. In view of the good-faith consider-
ations which underscore Section 8(d) affecting all
parties' dealings in the collective-bargaining frame-
work, the Respondent's refusal to sign or imple-
ment an agreement which was the direct result of
the Union's deceit is not unlawful. We shall there-
fore dismiss the complaint in its entirety.6
ORDER
The complaint is dismissed.
5 Laiderman became aware of the Wells employees' ratification of the
20-cent offer after receiving a copy of an unfair labor practice charge in
late December which had been filed by Wells against the Union for its
refusal to sign the contract The claim was settled by the Union agreeing
to accept the 20-cent package
6 Member Zimmerman notes that agreement by the Wells group to the
same package that the Union proposed to the Respondent was not a con-
dition precedent to a collective-bargaining agreement between the Re,
spondent and the Union Even if it were a condition precedent, he notes
that, in a collective-bargaining context such as in the Instant case, the
Board is not strictly bound by technical rules of contract law, including,
for example, strict notions of condition precedent See generally Pepsi-
Cola Bottling Co, 251 NLRB 187 (1980), enfd 659 F 2d 87 (8th Cir
1981) See also NLRB v Donlans Inn, 532 F 2d 138 (9th Cir 1976), enfd
214 NLRB 1 (1974) It is true that, where parties have actually reached
agreement, the Board normally will require that the agreement be Incor-
porated in writing and signed However, in the instant case, Laiderman
had explicitly stated that "if Wells got a 20 cent package, that's what I
want" Knowing this, when Laiderman asked Gonzales what the Wells
employees had done, Gonzales told Laiderman that they had rejected the
20-cent package, when in fact they had not yet even voted Gonzales ob-
viously felt that the only way he could get what he wanted from Laider-
man was to consciously mislead him In such circumstances, Member
Zimmerman agrees with his colleagues that the Board cannot condone
such tactics in bargaining
DECISION
STATEMENT OF THE CASE
MICHAEL 0 MILLER, Administrative Law Judge. This
case was tried before me on May 24, 1983, in St. Louis,
Missouri, based on an unfair labor practice charge filed
by Teamsters, Automotive, Petroleum and Allied Trades,
Local Union No. 50, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America (Local 50 or the Union), on January
7, 1983, and a complaint issued by the Regional Director
for Region 14 of the National Labor Relations Board
(the Board), on February 10, 1983. The complaint alleges
that Banner Tire Company, Inc. (Banner or Respondent)
violated Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act), by failing and refusing to exe-
cute and implement an agreed-to collective-bargaining
agreement. Respondent's timely filed answer denies that
any agreement to the terms of a collective-bargaining
agreement was validly reached.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue
orally. Briefs, which have been carefully considered,
were filed on behalf of the General Counsel and Re-
spondent.
Based on the entire record,' including my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS—PRELIMINARY
CONCLUSIONS OF LAW
Respondent is a Missouri corporation, engaged in the
wholesale and retail sale and distribution of automobile
tires and related prodtiCts and services, with an office
and place of business in Belleville, Illinois, and other
places of business in the State of Missouri. Only its Belle-
ville, Illinois facility is involved in this proceeding. The
complaint alleges, Respondent admits, and I find and
conclude that Respondent is an employer, engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
The complaint alleges, Respondent admits, and I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
The Union, and its predecessor, Teamsters Local 971,
which merged into Local 50 in June 1980, have repre-
sented Respondent's Belleville employees in the follow-
ing unit, appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act,
for a number of years.
The General Counsel's unopposed motion to correct the record is
granted
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All vulcanizers, recappers, tire repairmen, tire
changers, wheel balancers, front end men, brake-
men, tune up men, road and pick-up men, battery
men and glass installers at Respondent's Belleville,
Illinois store excluding office clerical employees,
professional employees, guards, and supervisors as
defined in the Act.
The collective-bargaining agreement between Teamsters
Local 971 and Respondent, which was assumed by Local
50, was effective , from July 1, 1979, to June 30, 1982.2
Negotiations were opened by a timely letter from the
Union and the first bargaining session was held on June
17. Respondent bargained jointly with a number of other
employers in the same industry. However, they did not
bargain as an association; each bargained for its own
agreement Steven Laiderman, Respondent's in-house
counsel, was Banner's spokesman and, together with a
representative of the Bond Stores, was the pnncipal
spokesmen for all of the employers. Business agent John
Gonzales was the Union's negotiator Separate negotia-
tions were being conducted between the Union and the
Wells group of five stores, which, it was ultimately de-
termined, were bargaining as an association The Wells
group, Laiderman testified, was Respondent's competitor
in the wholesale tire market.
By September 28, after a series of meetings, the Union
and the employer group which included Banner had
agreed on all of the terms of their collective-bargaining
agreements except wages and the welfare and pension
plan contributions. On September 28, Bond and the other
stores, except Banner, offered the Union a package
which included a 40-cent-per-hour wage increase in each
of the 3 years of the contract plus welfare and pension
fund contributions of $16 per week per employee in the
first year of the agreement, $18.50 per week in the
second year, and $21 per week in the third. At the same
time, the Wells group was offering a contract package
which included wage increases of 20 cents per hour in
each of the 3 years and pension and welfare fund contri-
butions of $13, $13, , and $16 weekly.
B The Disputed Conversations
On the morning of September 30, Gonzales called Lai-
derman and told him that the Union would be meeting
with the employees that evening to consider the employ-
ers' offers. He told Laiderman what Bond and the other
Belleville tire stores had offered, i e., the 40-cent pack-
age, and asked Laiderman what Banner was going to do.
According to Gonzales, Laiderman asked what the Wells
group was offering and was told of the 20-cent package.
Laiderman asked that Gonzales first present the 20-cent
package to his employees for a vote and asked further
that Gonzales call him at home that evening to let him
know how the employees voted. Laiderman's version is
slightly different. On direct examination he testified- that
he asked Gonzales what the Wells group was offering,
saying that "if Wells got a 20 cent package, that's what I
want." Responding to a leading question and in conclu-
sionary terms, he further testified that "ratification of the
2 All dates hereinafter are 1982 unless otherwise stated
same package as the Wells group" was "a condition
precedent to any agreement between Banner and Local
50." More specifically, when questioned by the judge, he
claimed to have told Gonzales that he "was not going to
accept a package any different or for more money and
pension than the Wells group," that "it would come
down to if Wells rejects the 20 cent package, then I
would probably go along with everyone else." .
Gonzales met with the employees . of the various tire
companies on September 30. The employees of Bond and
Kenny each voted to accept their employers' 40-cent
contract package offers Gonzales then presented the 20-
cent package to the Banner emplOyees and they rejected
It.
As Laiderman had requested, Gonzales called him im-
mediately after the vote Listening to their conversation
on a speaker phone was Robert Yock, a Banner employ-
ee As Laiderman recalled this conversation, Gonzales
told him that his employees had rejected the 20-cent
package Laiderman asked, "What did the Wells people
do?" Gonzales replied, "The Wells people had nothing
to do with us because they were in a different area, that
all the people in Belleville' had accepted the 40 cent
package," and asked what Banner was going to do. Lai-
derman repeated his question, "What did the Wells
people do?" Gonzales told him, "The Wells people had
rejected the 20 cent offer" and, when he was again asked
what he would do, Laiderman told Gonzales that "he
would go along with the rest of them," Le , the Belleville
-employers.
The version of this conversation presented by Gon-
zales and Yock vanes in only one particular. As they de-
scribed it, when Laiderman asked what the Wells people
had done, Gonzalez only said that the Wells offer was of
no concern to him and did not tell Laiderman that the
employees of, Wells had rejected the 20-cent package.
Laiderman then asked what Bond, Kenny, and the others
with whom Banner had been bargaining had done and
was told that Bond and Kenny had agreed to the 40-cent
package. To this, Laiderman allegedly stated, "I guess if
those people offered that, I have to offer the same
thing."
Gonzales confirmed that Laiderman was offering the
Banner employees the 40-cent package, took that pack-
age to the employees, and received their assent to it.
According to both Gonzales and Yock, the Wells
group employees did not vote on their employer's pro-
posal until after the conversation between Gonzales and
Laiderman. Moreover, when they voted, two ballots
were taken. Initially, all of the Wells stores' employees
voted as a single group and accepted the proposal. Then,
on objection by some of the' employees, separate votes
were taken for each of the five Wells stores. The em-
ployees of some stores accepted the 20-cent package;
others rejected it. The ratification of the Wells group
offer became the subject of unfair labor practice charges
filed by both Wells and the Union. An unfair labor prac-
tice complaint issued on the basis of the employer's
charge which alleged that the contract had properly
been ratified by the vote of all five stores' employees
voting as an associationwide unit. That complaint was
BANNER TIRE CO 483
settled when the Union signed .a contract with Wells,
providing for the 20-cent package in the associationwide
unit.
C. Refusal to Sign or Implement
In November, Gonzales sent Laiderman a letter setting
forth the terms of the agreement which the Union be-
lieved had been reached on September 30, i.e., the 40-
cent package. Subsequently, Gonzales asked Laiderman
when he intended to pay the employees their backpay..
Laiderman acknowledged his obligation to make those
payments but asked whether he could do so -in two pay-
ments. Gonzales checked with the employees and in-
formed Laiderman that they would not agree to such a
payment plan. Laiderman made no reference at this time
to there being any error in the Union's interim agree-
ment.
In early December, the Union sent each of the em-
ployers, including Banner, the contract for signing. On
December 6, Gonzales called Laiderman to ask whether
he had received and reviewed- the contract. Laiderman
stated that he had reviewed it, that it looked to be in
order, and that he would sign it after he had his attorney
look it over. He would pay the backpay, he said, as soon
as the contract was approved by that attorney.
,In December, Laiderman saw a copy of the complaint
against the Union which was based on Wells' unfair;
labor practice charge. This was his first knowledge,- he
said, that the. Wells employees had accepted the 20-cent
package. Laiderman then told Gonzales that he was not
prepared to sign the contract unless the Union gave•
Banner the wages and welfare and pension fund agree-
ments reached in the Union-Wells negotiations Gonzales
told Laiderman that he could not do that because the
Banner employees had rejected that offer while the
Wells employees had accepted it.
Respondent has not signed the 40-cent package agree-
ment proffered by the Union, and it has not implemented
the wage, pension, or welfare fund contributions called
for in that agreement.3
D. Discussion
The General Counsel contends that the testimony of
Gonzales and Yock must be credited and that, based on
their testimony, I must find that there was complete
agreement to the terms of a collective-bargaining agree-
ment. Respondent, arguing the credibility of Laiderman,
asserts that "ratification of the same contract by Wells"
was an unfulfilled "condition precedent to an agreement
with Banner" and that, therefore, "there was no agree-
ment." Respondent further argues that, even if an agree-
ment was reached, it was avoidable because it was based
on a material misrepresentation.
While I have essentially found Laiderman's recollec-
tion of the conversations to be more accurate than those
of either Gonzales or Yock, I find that full agreement
had been reached and that there had been no material
misrepresentation justifying avoidance of that agreement.
Respondent made one welfare fund payment, for December, at the
new contract rate Thereafter, all payments were at the lower rate of the
old contract
I find, as Laiderman testified on direct examination, that
Laiderman told Gonzales that he wanted to know what
the Wells group was "going to do because if Wells got a
20 cent package, that's what I want." However, I do not
find that Laiderman told Gonzales specifically or in haec
verba that agreement to the same package as the Wells
group was a "condition precedent" to their reaching an
agreement. Parity with the wages and benefits paid by
the Wells group was obviously and understandably Lai-
derman's goal and Laiderman expressed this to Gonzales.
However, his statement to Gonzales was merely the ex-
pression of a bargaining position and, I find, did not es-
tablish achievement of that position as a condition prece-
dent to agreement
Similarly, while I credit Laiderman over Gonzales and
Yock with respect to the conversation in the evening of
September 30, I find no material misrepresentation. Lai-
derman's response to Gonzales, to the effect that he
Would have to offer the 40-cent package which the other
Belleville stores had offered, only makes sense if he had
been told that the Wells group employees had rejected
the 20-cent package Laiderman knew, from his earlier
conversation with Gonzales, what Bond was offering and
he had expressed his opposition to making a similar offer.
If, as Gonzales and Yock testified, Laiderman had only
been told that the Bond employees had accepted the 40-
cent offer, he would not have been impelled to make
that same 40-cent offer Similarly, he would not have
been persuaded to make such an offer merely because
Gonzales told him that "Wells' offer was of no concern
to him." However, at best, Gonzales only told Laider-
man that the Wells employees had rejected the 20-cent
package Laiderman did not ask, and he was not told,
whether the Wells group had then agreed to pay the 40-
cent package. If parity with Wells was of such critical
importance to Respondent, the material fact would have
been what Wells had agreed to, not what the Wells em-
ployees had rejected. Perhaps Laiderman assumed that
rejection of the 20-cent package by the employees of
Wells would have forced Wells to accept the 40-cent
package, but the record herein provides no basis for him
to have made such an assumption. Moreover, as subse-
quent events reveal, there appears to have been a sub-
stantial dispute over whether the Wells employees had
accepted their employer's offer. Both Wells and the
Union filed unfair labor practice charges and it was not
until a complaint issued based on Wells' charge that the
dispute was resolved and an agreement, on the 20-cent
package, was finalized In all of these circumstances, I
find that Gonzales' statement to the effect that the Wells
employees had rejected their employer's offer was not a
material misrepresentation.
Accordingly, I must conclude that Respondent offered
its employees the 40-cent package, those employees ac-
cepted that package, all aspects of the collective-bargain-
ing agreement had thus been agreed to, and Respondent
was statutorily obligated to execute that agreed-to con-
tract when the Union proffered it. Its failure to do so,
and its failure to give effect to the terms and conditions
of that agreement, is violative of Section 8(a)(5) and (1)
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act. H.J Heinz Co. v. NLRB, 311 U.S. 514 (1941);
Go//in Block & Supply Co., 243 NLRB 350 (1979).
FURTHER CONCLUSIONS OF LAW
1. The following employees of Banner Tire Company,
Inc. constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of
the Act.
All vulcanizers, recappers, tire repairmen, tire
changers, wheel balancers, front end men, brake-
men, tune up men, road and pick-up men, battery
men and glass installers at Respondent's Belleville,
Illinois store excluding office clerical employees,
professional employees, guards, and supervisors as
defined in the Act.
2. At all times since at least October 23, 1979, Banner
Tire Company, Inc. has recognized and bargained with
Teamsters, Automotive, Petroleum and Allied Trades,
Local Union No. 50, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or its predecessor, Automotive, Pe-
troleum and Allied Trades, Local Union No. 971, as the
designated exclusive bargaining representative of its em-
ployees in the above-described unit.
3. By refusing to bargain collectively in good faith
with Teamsters, Automotive, Petroleum and Allied
Trades, Local Union No 50, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America by refusing, upon request, to
sign the collective-bargaining agreement submitted by
said Union in December 1982, embodying the terms and
conditions of employment on which the parties had
reached agreement on September 30, 1982, and refusing
to give effect to such contract retroactive to July 1,
1982, Respondent has violated Section 8(a)(5) and (1) of
the Act
4. Respondent did not commit any unfair labor prac-
tices not specifically found herein.4
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I shall recommend that it be required to
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act.
Having found that Respondent has failed -and refused
to sign the collective-bargaining agreement embodying
the understanding which the parties reached on Septem-
ber 30, 1982, I shall recommend that it be ordered, on
request, to sign said collective-bargaining agreement
forthwith. In addition, I shall recommend that it be or-
dered to give effect to the terms of said agreement retro-
active to July 1, 1982, and make the employees whole
for any losses they may have suffered by reason of Re-
spondent's failure to execute and implement the aforesaid
agreement, with interest thereon to be computed in the
manner described in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962)
[Recommended Order omitted from publication.]
4 The complaint had also alleged a discriminatory failure to Implement
the agreement in violation Of Sec 8(a)(3) There was no evidence of dis-
criminatory motivation, the 8(a)(3) allegation, if proven, would not have
affected the remedy herein, It was not pursued in the General Counsel's
brief and, it appears, that allegation has implicitly been withdrawn