Petroleum Contractors, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1980

250 N.L.R.B. 604 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petroleum Contractors, Inc. and Heavy and High-
way Laborers Local Union No. 158. Case 4-
CA-10267
July 14, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On March 20, 1980, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in support of the Administrative
Law Judge's Decision.
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 Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the HBoard'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 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
z The Administrative Law Judge found, and we agree. that Respond-
ent violated Sec. 8(a)(5) and (1) of the Act, by refusing to execute a col-
lective-bargaining agreement agreed to on April I. 1979. with the Union
To remedy this violation, he recommended, and we agree, that Respond-
ent should be required to execute that contract However, the Adminis-
trative Law Judge further recommended that the parties to that contract
be ordered to bargain in good faith over certain revisions to that agree-
ment proposed by Respondent in its May 14, 1979, letter to the Union.
We do not adopt that recommendation. Thus, the record reveals that Re-
spondent and the Union reached agreement on all the terms and condi-
tions to be included in the new contract on April 1, 1979, and that, but
for Respondent's unlawful demand that the Union demonstrate that a ma-
jority of its employees were union members., Respondent would have ex-
ecuted the contract as there was nothing further to negotiate Conse-
quently, as full agreement had been reached on April 1. 1979, we find it
improper to order the parties to bargain over any proposed revisions to
that agreement Accordingly, we shall delete that portion of the Adminis-
trative Law Judge's recommended Order requiring the parties to do so)
The parties, however, are not precluded from engaging in further negoti-
ations, if they so desire, (on Respondent's proposed revisions to the con-
tract,
The Administrative Law Judge also recommended that the Board issue
a broad cease-and-desist order in this case. However, as we do not, coln-
trary to the Adminstrative Law Judge, find Respondent's conduct herein
to be so egregious as ioi warrant the issuance of such an order, and as the
General Counsel has failed to demonstrate Respondent's proclivity lo
violate the Act, we shall order that Respondent cease-and-desist from in
any like or related manner interfering with its employees' Sec 7 rights
See Hickmol Foiods. Inc., 242 NLRB No 177 (1979)
250 NLRB No. 94
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Petroleum Contractors, Inc., Allentown, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guranteed in Section 7 of the
Act."
2. Substitute the following for paragraph 2(a):
"(a) Forthwith sign the collective-bargaining
agreement presented to it on May 1, 1979."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to bargain collectively
in good faith with Heavy and Highway Labor-
ers Local Union No. 158, as your collective-
bargaining representative with respect to your
wages, hours, and other terms and conditions
of employment. The appropriate unit for col-
lective-bargaining purposes is:
All employees of Petroleum Contractors,
Inc., Allentown, Pennsylvania, but exclud-
ing all office employees, clerical employees,
confidential employees, guards and supervi-
sors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
PETROLEUM CONTRACTORS. INC.
exercise of any of the rights guaranteed you
by Section 7 of the Act.
WE WII.L, upon request, sign the collective-
bargaining agreement; to be effective April 1,
1979, through March 31, 1982; and wE Wil.I
place into effect all the terms of that agree-
ment.
PETROLEUM CONTRACTORS, INC.
DECISION
STATEMENTI OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: This
case was heard by me on February 6, 1980, in Allen-
town, Pennsylvania.
On June 12, 1 9 7 9 ,' Heavy and Highway Laborers
Local Union No. 158 (hereinafter called the Union), filed
the instant unfair labor practice charge against Petroleum
Contractors, Inc. (hereinafter called Respondent), alleg-
ing that Respondent violated Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended (herein-
after called the Act).
On July 26, Peter W. Hirsch, Regional Director for
Region 4 of the National Labor Relations Board (herein-
after called the Board), issued a complaint and notice of
hearing. Service of the charge and the complaint and
notice of hearing was duly made upon the parties.
Respondent filed a timely answer to the complaint by
which it admitted certain allegations but denied the sub-
stantive allegations and tha it had committed any unfair
labor practice. All parties appeared at the hearing before
me. Each was represented by counsel and was afforded
full opportunity to be heard, to introduce, and to meet
material evidence, to examine and cross-examine wit-
nesses, to present oral arguments, and to file briefs. I
have fully considered the contents of the post-hearing
briefs filed on behalf of the General Counsel and Re-
spondent.
Upon consideration of the entire record and the briefs,
and my observation of the witnesses and their demeanor,
I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent, a Pennsylvania corporation, maintains its
place of business in Allentown, Pennsylvania. At all ma-
terial times, Respondent has been engaged in the business
of sale, installation, and service of petroleum handling
equipment. During the calendar year immediately pre-
ceding issuance of the complaint, Respondent purchased
goods and services valued in excess of $50,000 from
firms located outside the Commonwealth of Pennsylva-
nia.
The parties agree, the record reflects, and I find that
at all material times Respondent has been engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
] All dates are in 1979. unless otherfmise staled
The parties agree, the record reflects, and I find that
the Union has been a labor organization within the mean-
ing of Section 2(5) of the Act at all times material herein.
II. I[HE ISSUE
Did Respondent refuse to bargain collectively in good
faith with the Union by refusing and failing to sign a
written collective-bargaining agreement on and after
May I?
III. THE Al.LEGEI) UNFAIR I.ABOR PRAC TICE S
A. The Fact.s
The essential facts are substantially uncontroverted.
The facts recited below are a composite of factual stipu-
lations, unrefuted oral testimony, supporting documents,
and other documentary evidence. Although not every bit
of evidence is discussed, I have considered all of it, to-
gether with arguments of counsel based on such evi-
dence. Omitted material is deemed irrelevant or superflu-
ous.
Since at least the mid-1960's, Respondent and its pred-
ecessor have been parties to successive collective-bar-
gaining agreements. The relationship began through vol-
untary recognition of the Union as the bargaining agent
for the following unit of employees:
All employees of Petroleum Contractors, Inc., Al-
lentown, Pennsylvania, but excluding all office em-
ployees, clerical employees, confidential employees,
guards and supervisors as defined in the Act.
It is undisputed, and I find, the bargaining unit is ap-
propriate for collective-bargaining purposes within the
meaning of Section 9(b) of the Act.
The most recent collective-bargaining agreement was
due to expire on March 31.
By letter dated January 19, the Union's business man-
ager, Joseph DiGeronimo, notified Respondent of the
Union's desire to meet with Respondent's representatives
to negotiate terms for a new agreement.
On March 20, the parties held a joint bargaining ses-
sion. The Union presented its contract proposals. Gener-
al discussion ensued. Respondent's executive vice presi-
dent, Warren J. Fenstermaker, testified that Respondent's
president, William L. Graham, 2 asked the union repre-
sentatives "whether they represented a majority of [Re-
spondent's] employees." According to Fenstermaker, the
union representatives replied it was not a matter for Re-
spondent's concern. Fenstermaker's handwritten notes
made contemporaneously with the March 20 meeting
contain a reference to "how many people is union rep-
resenting?"
During his cross-examination, Fenstermaker admitted
that his recollection of the question posed to the Union
was imperfect. Indeed, on further cross-examination,
Fenstermaker agreed that Graham actually said that the
Employer would negotiate, but would not sign an agree-
: (iraham did 1ino appeair a a 'itlncsi ai the hearing Itie Aas then hos
pilahized hecaue of a gra'.e Illner', I perceive no i ssue',, which v ojuld
ha',c lnc't.Cl,'tal'd (iraham',n tcliilnotl,
t()5
I)ECISI()NS ()F NATIONAL. LABOR RELATIONS BOARD
ment until the Union demonstrated that a majority of
employees wanted the contract.
During redirect examination, Fenstermaker reverted to
his original testimony that the question asked of the
Union was whether it "represented a majority of [Re-
spondent's] employees." However, during recross-exami-
nation, Fenstermaker admitted that the Employer re-
quested assurances that "a majority of . . . employees
are desirous of being members of [the Union]." (Emphasis
supplied.)
James Andrews, the Union's field representative, testi-
fied at the hearing. Andrews asserted that he presented a
complete agreement to Graham on May I for signature.
According to Andrews, Graham said he would not sign
the contract "until we [the Union] had a majority of reg-
istration slips with the contract."
Clearly, Fenstermaker's varying formulations of Gra-
ham's oral remarks regarding whether he would sign a
contract make Fenstermaker's testimony an unreliable
basis for a factual finding. By his own admission, Fen-
stermaker was imprecise in recalling what was said by
Graham. There is documentary evidence which I consid-
er a more trustworthy indicator of what Graham actual-
ly said. Thus, in a letter dated May 14 to the Union,
Graham wrote, inter alia, Respondent would sign the
proposed contract ". . . upon receipt of sign-up cards,
as evidence to me that the majority of our employees are
desirous of being members of your organization." When
confronted with that document, Fenstermaker agreed
that Graham's oral position throughout negotiations was
as he stated in the May 14 letter. Andrews' credible ac-
count comports with the statement quoted above from
Graham's May 14 letter. Accordingly, I find that from
the inception of negotiations, Respondent asserted it
would not sign a collective-bargaining agreement until
the Union demonstrated a majority of unit employees
were union members.
On March 26, the Union conducted a meeting with the
unit employees. Employee Paul K. Zeigler testified,
without contradiction, that the union representatives
asked what kind of wage demands the employees wanted
the Union to make. Also, there was discussion concern-
ing the duration of a new contract. Zeigler further testi-
fied that he attempted to engage in an open discussion
regarding whether or not the employees desired union
representation. That topic, however, was effectively
avoided. 3
Sometime at the end of March or early April, Zeigler
circulated among all unit employees. On his initiative,
Zeigler asked each employee to signify, in writing,
whether or not each "wanted" the Union. Zeigler had
each employee write "yes" or "no" upon a sheet of
paper which bore the caption "Union"; a left-hand
column captioned "yes"; and a right-hand column cap-
tioned "no." Below the "yes" column, Zeigler placed the
digits I through 10, and immediately below the "no"
column the digits I through 14, in succession. After
Zeigler completed his poll of employees, the document
contained I "yes" and 14 "no's."
3 There is no evidence that Zeigler's conduct at this union meeting or
at the union meeting (to be described. infra) on April 10 was the subject
of any unfair labor practice charge
Zeigler, who had frequently expressed his personal dis-
satisfaction with the Union to Fenstermaker and
Graham, delivered the written "straw vote" to Fenster-
maker. At this delivery, Zeigler remarked that he had
taken the vote as described, and that the employees were
not "happy" with the Union.
Employee Ernest T. Kulp testified that he participated
in Zeigler's straw vote, and confirmed the manner in
which it was taken. Further, Kulp testified that he also
had expressed his dissatisfaction with the Union to
Graham and Fenstermaker.
On April 1, the parties conducted another bargaining
session. During that meeting, I find that Respondent per-
sisted in its request that the Union demonstrate the mem-
bership of a majority of unit employees.4 Apparently, at
this meeting the parties completed their discussion con-
cerning all terms of a new collective-bargaining agree-
ment. 5 At this meeting, the Union asked for permission
to conduct a meeting at Respondent's premises. That
permission was granted.
By letter dated April 5, DiGeronimo invited the unit
employees to a union meeting at the company premises
on April 10. He enclosed a copy of Respondent's wage
proposal and advised the employees that the purpose of
the meeting was to discuss the provisions of a collective-
bargaining agreement.
On April 10, the Union conducted the scheduled meet-
ing. Contract terms were discussed. Zeigler made an-
other effort to have the employees that vote whether
they wanted the Union. This effort was ignored. Instead,
all employees present participated in a secret-ballot ratifi-
cation vote. Andrews counted the ballots and announced
the employees voted nine to six in favor of accepting the
contract.
On May 1, Andrews delivered a copy of a complete
collective-bargaining agreement (G.C. Exh. 7) to
Graham. The document was already signed by DiGeron-
imo. It contains the following clauses: recognition, union
security, checkoff, grievance and arbitration, seniority,
health and welfare and pension fund, a wage schedule,
duration and miscellaneous other terms and conditions of
employment. When Graham was asked to sign the con-
tract, he said, as noted supra, he would not do so until
the Union had a majority of "registration slips." There is
no evidence that Graham protested the documents pre-
sented to him contained any terms upon which there had
been no discussion.
Finally, as previously indicated, on May 14 Graham
wrote the Union, in relevant part, that he would sign the
contract upon proof that the majority of employees "are
desirous of being members of" the Union.
4 In making this finding, I specifically discount (for the reasons dis-
cussed, supra) Fenstermaker's testimonial generalization that, on April I,
"the question was, again, asked by representation of a majority of em-
ployees."
I Counsel made an aborted attempt to stipulate that an "agreement"
was reached The stipulation failed because Respondent desired to main-
tain its position (to be analyzed, infra) that a condition precedent to final
agreement was a demonstration of the union's majority status Thus, my
finding that discussions of contract terms had been completed on April I
is based on the confluent ptsitiOins of counsel that a document in evi-
dence entitled "Collective-Bargainling Agreement (etc )" (GC Exh 7) is
the embodiment of the oral discussions between the parties.
h()06
PETRO()EUM CONTRACTORS, INC.
There is no evidence that any decertification petition
had been filed at any relevant time. However, on Octo-
ber 10, Respondent filed a petition for certification of
representative, Case 4-RM-992. That petition was dis-
missed by the Regional Director on October 18 and Re-
spondent's request for review was denied by the Board
on January 30, 1980.
B. Analysis
The General Counsel and the Union contend that Re-
spondent's admitted refusal to sign the collective-bargain-
ing agreement presented to it on May I constitutes an
unlawful refusal to bargain. The violation is predicated
upon the Union's presumptive majority status at the time
the negotiated terms were presented for signature.
Respondent claims no final agreement on new contract
terms was reached because negotiations were conducted
subject to the condition precedent that the Union demon-
strate its majority status. Also, Respondent contends it
maintained a good-faith doubt of the Union's representa-
tive status by virtue of expressions of dissatisfaction with
the Union voiced by employees, and further evidenced
by receipt of Zeigler's employee poll.
It has been long well settled, since the Supreme Court
decision in H. J. IHeinz Company v. NL..R.B., 311 U.S.
514 (1941), that where a bargaining contract has been
agreed the parties are obligated upon request to reduce
the agreement to writing and execute the document, and,
of course, abide by it, in the interest of "stabilizing labor
relations and preventing, through collective bargaining,
strikes and industrial strife," which are the purposes
which the Act seeks to promote. (311 U.S. at 524, 525).
The Court stated (at 523, 524), ". . . experience has
shown that refusal to sign a written contract has been a
not infrequent means of frustrating the bargaining proc-
ess through refusal to recognize the labor organization as
a party to it and the refusal to provide an authentic
record of its terms which could be exhibited to employ-
ees, as evidence of the good faith of the employer."
It is equally well established that the existence of a
contract gives rise to a presumption that the Union was
the majority representative at the time the contract was
executed and through the life of the contract. Shamrock
Dairy. Inc., et al., 119 NLRB 998 (1957) and 124 NLRB
494 (1959), enfd. 280 F.2d 665 (D.C. Cir. 1960), cert.
denied 364 U.S. 892. Following the expiration of a col-
lective-bargaining agreement the presumption of majority
is rebuttable. Barrington Plaza and Tragniew, Inc., 185
NLRB 962 (1970), enforcement denied sub nom.
N.L.R.B. v. Tragniew, Inc., and Consolidated Hotels of
California, 407 F.2d 669 (9th Cir. 1972). The foregoing
principles apply whether the union is Board-certified or
is voluntarily recognized as the bargaining agent. Emer-
son Manufacturing Company, Inc., 200 NLRB 148 (1972).
The burden of presenting facts sufficient to rebut the
presumption of majority rests upon the party seeking
such rebuttal. 6 The assertion of doubt must be supported
6 The courls of appeal, rather ulniformly ha, e held thta. if an cnmplo er
offers evidence u.hlch ca.ti doubt that the Inlimhbenlt utIimi c4nlmanld,
suppMrt of a majorit) of emrplioyees. the hurdentl hilt, to the (jlneral
Counsel to come forward wlth the e.idein,. that the tlllonll inll Ict docs
represent a majortly of Ihe employees See the .Nuatrnalu (Cauh RKegtr
by a showing of objective considerations providing rea-
sonable grounds for a belief that a majority of employees
no longer desire union representation. ,'u-Southern
Dyeing & Finishing, Inc. and I1enderson Combining (Co.,
179 NLRB 573, fn. 1 (1969). The evidence of doubt must
be "clear and convincing." RJ-Chen Company and El
Paso Products. 169 NLRB 376 (1968). The test of wheth-
er an employer has met its burden of proof "requires
more than mere evidence of the lEmployer's subjective
state of mind." Sahara-7iahoe Corporation, d/h/a Sahara-
lahoe Ilotel, 229 NLRB 10)94 (1977), and cases cited
therein.
I conclude that Respondent has not sustained its
burden. I have already found that Graham's formulation
of doubt was expressed in terms of requiring the Union
to prove that a majority of unit employees wcrc on its
membership rolls. Concededly, the number of employees
who are union members comprise a factor which may be
assessed in evaluation of the reasonableness of an crl-
ployer's doubt of majority. However, herein Respondent
did not, in fact, use the membership factor as an clement
of doubt. Instead, its demand for proof of membership
constituted more than a mere element of doubt It was
used as the principal basis for refusing to sign an agree-
ment. The Board has frequently held that showing of
membership in a union or financial support of a union is
not the equivalent of establishing the number of employ-
ees who desire to be represented by the Union. Dalew(oodd
Rehabilitation Hospital. Inc.. d/h/a Golden State lhabilita-
hion Convalescent Center, 224 NLRB 1618 (1976), Orion
Corporation, 210 NLRB 633 (1974); 7i'rrell Macln'hineL Cotn-
pany, 173 NLRB 1480 (1969). Upon the foregoing, I also
find that Respondent's reliance upon the fact that union
dues were checked off for only four of the employees is
misplaced. Triplett Corporation, 234 NLRB 985, 986
(1978).
The remaining basis foir Respondent's doubt of major-
ity is derived from the reports of Zeigler and Kulp of
employee dissatisfaction with the Union, together with
Zeigler's presentation of his written employee poll. It is
true that employee reports to their employer that they
wish to withdraw from their union, absent contempora-
neous unfair labor practices, have supported findings of
good-faith doubt of majority. Stresskin Products Co. Divi-
sion of Tool Research and Engineering Corporation, 197
NLRB 1175 (1972): Phil-Modes, Inc. and Harold Berlin
d/b/a Berlin Coat Manufacturing Co., 159 NLRB 944.,
959 (1966). However, there is no evidence herein that
C(orpaniun, .N iR IH 494 F 2d I9 I(gth Cir 1974);., .. R B. v Ihit Ltl
RBi,{ Doxnlo,,t ncr. inc.. 414 F.2d (104. 1 0'40 Q1 (811l Cir 19h9: ,) Vt.R H
D)ualn tMot,. inc.. dhb/u llohdauv Inn I] Duvitn, 474 [: 2d 328 (hlh
Cir 1971; .luloritlurd Butatnc. Syvtem,. ua Da vtlton aJ I.Litln l uoisntn SvW-
tnt. , I'. NV L R B, 497 F 2d 262 (hlh Cir 1974): I.odgcs 1746 and
74., Inltrrrnatinul t .toriuiatn o/f Machinists and .4cnirpacu 14iorcr,. .41'r
(C10 [ Unlited 4Ir craut Crporuirlatrt l .I IR B . 416h t 2d )O(9, 81 812
(I) C C ir 19h69)
tlowe.ter. I .Inl hilnlld to adhere t1 the applicabule t, oard preLedentl.
itled hrcnill.hlove. unle-ss o errulcd hs the Suprenle, ('C rt sui ratlrl ,
ignrit ini r nuatio l lta n .4i 1.-(i () 1l (it 'ri u, tt patti
of .-Imter'uL. 11'1) NlRH 7et8 ('6157: tIo. Hul /u M arA, 144 Nl RB h15
(I'hI)) A rce tt proinit[llliiCltlilt h5 t lhe Board ion Itis ~ilblt'cl appcar in
Inln lr Iltt I fh aih'. . /.. a it,,n'r 1,1,i ..tid Pi..t,r Alt,, (1ut{I. 22%
Nl'RiB 126. 126s 1977)
0()7
DIECISIONS OF NA]IONAL IlABOR RELATIONS BO)ARKI)
either Zeigler or Kulp expressed such a personal inten-
tion to Fenstermaker or Graham. I consider their various
expressions of dissatisfaction with the union representa-
tion amount only to emotional outbursts of union antipa-
thy. To attribute a more significant interpretation to the
gripes of Zeigler and Kulp is tantamount to substitution
of subjective states of mind.
In a like vein, I conclude Zeigler's employee poll has
little probative value in support of Respondent's position.
Respondent appears to have assumed the integrity of the
poll in an effort to extricate itself from its bargaining ob-
ligations. The document resulting from the poll, on its
face, is patently without meaning. Respondent simply
relied upon Zeigler's self-serving declaration of what his
poll purported to be. Such a declaration was itself sus-
pect, for Zeigler chronically complained about union
representation. Thus, I consider it unreasonable for Re-
spondent to rely upon Zeigler's poll as evidence that the
Union lost its majority status. In this connection, I note
that no decertification petition had been filed. Had such
a valid petition been filed, there would have been raised
a real question concerning representation. In that event,
Respondent might have been privileged to refuse to sign
the agreement.' Telautograph Corporation, 199 NLRB
892 (1972).
Upon all the foregoing, and inasmuch as I have found
the parties reached agreement upon all terms of a new
contract,8 I find Respondent unlawfully refused to bar-
gain with the Union when it declined to sign that agree-
ment.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCI.USIONS OF LAW
I. Petroleum Contractors, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Heavy and Highway Laborers Local Union No. 158
is a labor organization within the meaning of Section
2(5) of the Act.
3. All employees of Petroleum Contractors, Inc., Al-
lentown, Pennsylvania, but excluding all office employ-
ees, clerical employees, confidential employees, guards
and supervisors as defined in the Act constitute an ap-
propriate unit for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. By failing and refusing to sign the collective-bar-
gaining agreement presented to it on May 1, 1979, Re-
spondent refused to bargain collectively in good faith
T 'he delayed filing of Respondent's RM petitlon, 1 months after the
instant complaint issued, has no prohativr value in estahllihhing the eistl-
ence olf a question concerning represenltaioln I niled .Slue (iv prum (C o'-
puny. 157 NLR h 52 (1966hh); artenders 11/tel, .otel and Restaurunht EIn-
ployrs BRargaining Aswsiuation Ao Polatelloe. Idaho. 211 NI. RH 651, 55
( 1974)
' I have examined the doc ument which (Grahaml iwas asked to sign on
May I I colnclude i is a conventional integra;lted InstrTment which con-
tains culstomary provimions governing emplocce wages. houirs, terms, and
conditions of emphlyment I find it cumplete in material respects Cf
Hehln S. Puvko dh//a .4meriian Siee/ Lin (o., 21() NI RH 811. 1I
(1974) Mioreover. as previously nolted. the parties agree that the docu-
ment contains the results lof their inegolatiitolns There are IWsou exceptions
o hbe discussed in the Remedy se.Cllon, inirau
with the Union in violation of Section 8(a)(5) and (I) of
the Act.
5. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THF RI MHI)Y
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act, I shall recommend it cease and desist
from engaging in such conduct in the future and affirma-
tively take such action as will dissipate the effects of its
unfair labor practice.
Inasmuch as I have found that Respondent refused to
bargain collectively in good faith by failing and refusing
to sign the collective-bargaining agreement presented to
it on May 1, 1979, the Order shall require Respondent to
recognize and, upon request, sign that agreement and im-
plement all its terms and conditions.
Graham's May 14 letter proposes two amendments to
the contract submitted on May 1. The record is unclear
whether the Union agreed to those changes. In any
event, I do not consider a failure of such agreement
alters my conclusion that there was such a meeting of
the minds as requires the contract to be signed.9 Gra-
ham's proposals require only minor adjustments. Thus, if
no full agreement actually was reached on those matters,
article II, section II, and article IX, section I-D, then the
Order herein is intended to impose the obligation to sign
a contract embodying all the other terms agreed to, and
then bargain collectively in good faith with the Union
upon those two specific matters and, if an understanding
is reached, embody such understanding in a written
agreement which, upon the Union's request, Respondent
shall sign.
The General Counsel has requested the Order herein
contain broad restrictive language. In Hickmott Foods.,
Inc., 242 NLRB No. 177, the Board stated ". . . such an
order is warranted only when a respondent is shown to
have a proclivity to violate the Act, or has engaged in
such egregious or widespread misconduct as to demon-
strate a general disregard for the employees' fundamental
statutory rights." In my opinion, Respondent herein has
effectively usurped the statutory rights granted to em-
ployees freely to select their collective-bargaining repre-
sentative. Moreover, I consider Respondent's actions
herein virtually deprived the unit employees of represen-
tation by their incumbent bargaining agent. For these
reasons, I conclude Respondent has demonstrated a gen-
eral disregard for the fundamental statutory rights of em-
ployees. Accordingly, the Order herein shall require Re-
spondent to cease and desist from in any other manner
infringing upon those rights.
Upon the above findings of fact, conclusions of law,
the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
" See -lmerican Steel Lirn (Co., iupra
PETROLEUM CONTRACTORS, INC.
ORDER °
The Respondent, Petroleum Contractors, Inc., Allen-
town, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with Heavy and Highway La-
borers Local Union No. 158 as the exclusive representa-
tive of the unit of its employees found appropriate
herein.
(b) 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 which it is
found will effectuate the policies of the Act:
(a) Forthwith sign the collective-bargaining agreement
presented to it on May 1, 1979. If a complete agreement
had not been reached upon article 11, section 2, and arti-
cle IX, section l-D, then Respondent shall sign a docu-
ment containing all other provisions of the document de-
livered to it on May 1, 1979, and later, upon request, bar-
" In the event no exceptions are filed as pronided hy Sec 102 40t of
the Rules and Regulations of the National ltabor Relations Board, the
findings, conclusions, and recommended Order herein shall, as prosided
in Sec 102 48 of the Rules and Regulallons. be adopted hy Ihe iBoard ilnd
become its findings, conclusions, and Order, and all objections thereto
shall he deemed waived for all purposes
gain collectively in good faith with the Union only over
article II1, section 2, and article IX, section l-D, and if an
agreement is reached upon those clauses, then upon the
Union's request, embody such agreement in a written in-
strument and sign it.
(b) Implement all the terms of the aforesaid collective-
bargaining agreement.
(c) Post at its Allentown, Pennsylvania, facility copies
of the attached notice marked "Appendix."'' Copies of
said notice, on forms provided by the Regional Director
for Region 4, 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 thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
' In the event that this Order is enforced h) a Judgment 01' a United
Sllates ('url ofr Appeals. the sords In the notice readilng "Posled bh
Order if the Natitonal L.abor Relations Hoard" shall read "'osted P'ursu
-
ant lo a Judgment of the United States Court of Appeals Infoirclng all
Order of Ihic Nation;l I.abor Relations Board"
609