Petrolane-Franklin Gas Service, Inc.

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petrolane-Franklin Gas Service, Inc. and Miscellaneous Drivers and Helpers Union, Local 610, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Petrolane-Franklin Gas Service, Inc. and James L. Goodbar. Cases 14-CA-4542, 14-CA-4620, and 14-CA-4668 February 18, 1969 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On October 25, 1968, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, 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 General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 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, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondent, Petrolane-Franklin Gas Service, Inc., St. Clair, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. As the Trial Examiner properly dated the unlawful refusal to bargain on July 18, 1967, the commencement of the 10(b) period, we find that the remedy should also take effect as of that time rather than on March 24, 1967, when the Union won the representation election Contrary to the General Counsel, we do not deem it necessary to spell out in the cease and desist order or the Notice the various elements of Respondent conduct which were found by the Trial Examiner to constitute the unlawful refusal to bargain. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Trial Examiner- These consolidated cases were tried before me in St. Louis, Missouri, on July 16 and 17, 1968, upon an amended complaint issued against Respondent, Petrolane-Franklin Gas Service, Inc., on June 4, 1968. The amended complaint was based upon charges filed by Miscellaneous Drivers and Helpers Union, Local 610, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, on January 17 and March 27, 1968 and by James L. Goodbar on May 6, 1968, and alleges that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), (4), and (5) of the Act. Respondent filed an answer, denying that it had engaged in any of the unfair labor practices alleged. Subsequent to the hearing counsel for the General Counsel and for the Respondent filed briefs, which have been carefully considered. Upon the entire record in this case, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT L THE BUSINESS OF RESPONDENT Respondent is a Missouri corporation, having its principal office and place of business, including a warehouse, store and bulk plant, in St. Clair, Missouri, where it is engaged in the sale and distribution of L-P gas, petroleum products, cooking and heating appliances and other related products to residential and industrial consumers. Respondent is a wholly owned subsidiary of Petrolane Gas Service, Inc., herein called Petrolane, a California corporation with the principal offices located in Long Beach, California. At all times material herein Respondent and Petrolane have had common officers, owners, directors and operators. Said officers, directors and operators administer a common labor policy affecting the employees of Respondent and Petrolane. During the 1-year period ending December 31, 1967, a representative period, Respondent and Petrolane sold gas valued in excess of $500,000. During the same period Respondent and Petrolane purchased and caused to be transported and delivered to Respondent's Missouri places of business, directly from points outside the State of Missouri, L-P gas, petroleum products, cooking and heating appliances and other goods and materials valued in excess of $50,000. Upon the above facts, which were stipulated, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. IL THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that the Union is a labor organization within the meaning of Section 2 (5) of the Act. 174 NLRB No. 88 PETROLANE FRANKLIN GAS SERVICE 595 III. THE UNFAIR LABOR PRACTICES A. The Issues Following a representation election on March 24, 1967, the Union was certified on April 3, 1967, as the bargaining representative of Respondent's four employees in a unit consisting of the drivers, servicemen, helpers and meter readers at Respondent's St. Clair, Missouri, facilities. It is alleged that Respondent thereafter failed and refused to bargain in good faith with the Union (1) by failing and refusing to meet at reasonable times and places and with reasonable frequency; (2) by failing to submit promised counterproposals; (3) by repudiating agreements made in prior negotiations; (4) by failing since about March 20, 1968, to provide a representative with authority to negotiate and reach an agreement; and (5) by engaging in numerous acts of interference, restraint and coercion which were independently in violation of Section 8(a)(1) of the Act and which were designed to undermine and destroy the Union's majority status. It is also alleged that Respondent unlawfully discharged employee James L. Goodbar on May 3, 1968, because he had engaged in protected union and concerted activities and gave a statement to a Board agent who was investigating a charge which the Union had filed. There is no substantial dispute regarding most of the subsidiary facts. The principal issues arise in drawing the proper inferences from these subsidiary facts. B. Acts of Interference, Restraint, and Coercion following the Selection by Respondent's Employees of the Union To Represent them 1. Background The General Counsel contends that beginning immediately after the Union won the election and continuing throughout the certification year, Respondent engaged in coercive conduct designed to induce the employees to repudiate the Union as their bargaining agent. It is undisputed that on March 24, 1967, immediately after the election, Respondent's vice president and regional manager, Gerald G. (Jerry) McCaffrey, in the presence of District Manager Robert W. (Bob) Sullentrup, had a conversation with employee Obermark, Respondent's most senior employee, in Lewis' Cafe near Respondent's offices. McCaffrey told Obermark that he did not understand why the Union was voted in. Obermairk replied that working conditions had a lot to do with it. McCaffrey then asked if Lawrence Ware, a former employee, had been "pressuring" the employees. Obermark replied that he could never understand why Ware had been fired and McCaffrey explained that Respondent was "afraid at that time that something like what happened today was going to happen to them." McCaffrey's remark was obviously intended to leave Obermark with the impression that Ware had been discharged for proselytizing for the Union and was an implicit threat of what might happen to others who might be too active in support of the Union. Shortly after the election, District Manager Sullentrup approached employee Hinson at his work, asked him how he felt about the Union, whether it had done anything for the employees and whether they had beard from the Union. Later, during the summer, after having been told by one of the employees that Sullentrup had suggested that anyone interested in getting out of the Union should see him at his home , where he was on vacation , Hinson went to Sullentrup's home. Hinson gave the following undenied and credited account of what was said on that occasion: Q. What was said during that conversation? A. He wanted to know what I would have to have to get out of the Union , and I told him I really hadn't made up my mind. I wanted to know what they would give, and he said I had two raises coming, and they would give me them, that is all he would offer me. And then he came up to one more figure. Q And that was if you got out of the Union? A. Yes. Beginning in May and continuing throughout the year, the Union was attempting fruitlessly to set up bargaining conferences with Respondent. Sullentrup's statements to Hinson in these circumstances were clearly intended to cause his disaffection from the Union and his rejection of it as his bargaining representative. No unfair labor practice finding is based upon the conduct of Sullentrup or McCaffrey, described above, because such a finding would be barred under the limitations proviso to Section 10(b) of the Act. However, this evidence is relevant as background to throw light upon Respondent' s motivation in connection with the unfair labor practices alleged in the complaint. 2. McCaffrey's interview with employee Sullivan In August 1967, about 2 days after Dale Sullivan had been hired by Respondent as a serviceman, he was taken by Sullentrup to Salem, Illinois, for an interview by McCaffrey. During the conversation Sullivan asked McCaffrey what the union situation was at Respondent's facilities and McCaffrey replied that the Union had been voted in. He asked Sullivan how he felt about unions. Sullivan replied that he had only belonged to one union ,,and it was more or less an excuse for not belonging to a union." McCaffrey explained that Respondent would have to negotiate with the Union but that did not mean that Respondent would have to sign a contract. Before being employed by Respondent, Sullivan had just sold a small business which he had owned and operated. McCaffrey asked him if he would have wanted a union in that business and Sullivan replied that he would not because it was a small business. McCaffrey replied, "We don't like unions either" and stated that Respondent did not need a union.' In the context of McCaffrey's expressed dislike of unions, his voluntary remark that the fact that Respondent had to bargain with the Union did not mean that it would have to sign a contract, could reasonably be interpreted by Sullivan as an expression of an intent to avoid signing an agreement with the Union. This interpretation is borne out by Respondent's concurrent and subsequent dealings with the Union, hereinafter related. McCaffrey's statement accordingly constituted a threat of the futility of having a union represent the employees and, as alleged in the complaint, was an unlawful interference with the employees' 'right to be represented by a union. 'The occasion for calling Sullivan to Salem for an interview, according to the credited testimony of McCaffrey , was McCaffrey's view, upon studying Sullivan's application for employment, that Sullivan might be a potential district manager. He was still of this view at the conclusion of the interview 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Meetings of Sullentrup and Meador with the unit employees On January 3, 1968, Respondent's four employees met with Sullentrup before work one morning to discuss their dissatisfaction with working conditions. Among other things, they asked Sullentrup why the employees at Petrolane's Sullivan operation (who were not represented by a union) were making more money than they were and Sullentrup, pointing successively to each of the three employees who were working at the time of the election (Goodbar, Obermark and Hinson ), said, "You know, you know, and you know why, because the Union was voted in " At the time Sullentrup made this statement, he and the Union had not yet been able to agree upon a date on which they could sit down and bargain regarding the wages and other working conditions proposed in the Union's May 8, 1967 letter to Respondent, and as shown infra, Respondent had been refusing to bargain in good faith. Accordingly, Sullentrup's attempt on January 3, to blame the Union for the employees' failure to receive as much money as the nonunion operation at Sullivan, was patently unlawful coercion of the employees in the exercise of their organizational rights? Shortly thereafter, on January 17, 1968, the Union filed an unfair labor practice charge against Respondent, alleging, inter alia, that it was unlawfully refusing to bargain. Thereafter on February 19, 1968, the Union and Respondent had their first bargaining conference. Following that conference the parties entered into a settlement agreement covering the unfair labor practice charges. Thereafter between February 26 and March 26, the parties held three more bargaining conferences. During this period, as shown below, another representative of Respondent, Francis Meador, made statements and proposals to the employees, tending coercively to induce them to repudiate the Union. During the afternoon of March 14, Meador, Petrolane's sales manager responsible for the promotion and management of retail sales at Respondent's operations as well as in 24 other Petrolane districts covering five states, came to St. Clair and talked to Respondent's employees about their various complaints and the Union. Meador's headquarters are in Salem, Illinois, where Regional Manager McCaffrey also has his headquarters, but Meador visits the St. Clair, Missouri, operations, about every 6 weeks. It is necessary for him to rely heavily upon the drivers and servicemen at each operation in carrying out his sales promotional duties and the employees' morale, enthusiasm and efficiency are matters which concern him as well as Respondent's local management. Meador testified that his purpose in coming to St. Clair on March 14, was to talk to District Manager Sullentrup about a training program in connection with selling kitchen ranges but he became sidetracked from that purpose. While he was waiting for Sullentrup, employee Goodbar walked into the office and Meador invited him to a nearby cafe for a cup of coffee. Meador asked Goodbar "how things were going" with the men and Goodbar told him that they all needed more money, that Goodbar had not received the raise in wages which was due him and that he and the other employees did not know what was going on and had no one they could talk to.3 Meador then asked Goodbar what chance he thought there might be of the men voting the Union out. Goodbar 'Other coercive conduct by Sullentrup around this period is treated infra in connection with a recital of the events leading to Goodbar's discharge. replied that he did not know and that Meador would have to ask them Meador volunteered to talk to the rest of the men if Goodbar could arrange to have them at the warehouse at 4:30 that afternoon. Pursuant to Meador's suggestion, all four men in the bargaining unit did meet with Meador at the warehouse at 4:30 p.m. Meador assured them that they could say anything that they wanted to and he would not betray their confidence. He told them that he understood that they were having problems and that he would like to help solve them. One of the matters complained of was the employees' wages. Obermark asked Meador why Respondent's St. Clair employees were not earning as high wages as the employees in Petrolane's nearby plants (the Sullivan operation about 25 or 26 miles away and the Washington operation about 12 miles away). The men also complained of long hours they were working and of having to stand by at home for emergency telephone calls without being paid for such time. Meador appeared to sympathize with their complaints. He stated that he did not think all four men could be wrong or troublemakers.' He asked the men if they had thought of voting the Union out and expressed the view that if they did, they could have the same wage rates as the Petrolane employees at other plants and have their hours cut to about 40 in the summer and 48 in the winter, with time and one-half for overtime. He stated that if the employees wanted another election, he would try to arrange it He asked Obermark what the employees would have to have in round figures to get out of the Union and Obermark replied "500, 550, 600." ,Meador then invited all the men to dinner and all except Sullivan, who had a previous engagement, accepted. Along with beer and steaks, the men continued their discussion. Meador told the men that it was not company policy to pay for standby time when the employees were required to stay at home to receive emergency calls but he sympathized with their complaint and expressed a view that it should be the district manager's job to take such calls. When the men voiced some complaints about Sullentrup, Meador stated that he could be replaced and that the business could be turned over to the men to run. To the proposal that Sullentrup be replaced, Obermark replied that Sullentrup was better than the former district manager and Goodbar said, "No, I do not want to see Bob lose his job or be transferred." Meador told the men that if they wanted the Union out, he would see that they got raises and that he would try to get them whatever price they named up to $700 a month but warned them that they had better not fill in their paycheck for more than they were worth or they might be dismissed. He told them that if they voted the Union out, he would go to McCaffrey and, if necessary, over McCaffrey's head to the president of the Company to get the men the working conditions they were requesting.' At 'In the early part of March, Sullentrup had written McCaffrey a letter, which all the employees saw, in which Sullentrup asked McCaffrey, "How do I tell the guys here that we want to give them an increase ," and stated "They haven't received a raise for about a year now. They are way overdue." Shortly thereafter employee Sullivan, in the presence of employee Hinson, asked McCaffrey and Sullentrup about the meaning of the letter and why Sullivan had not received an increase but he received no explanation. 'As noted, infra, District Manager Sullentrup had accused Goodbar of being the troublemaker 'As employee Obermark explained at the hearing , he knew that Meador did not himself have authority to put into effect what he was proposing to do for them but he hoped that by talking to Meador the men might be PETROLANE FRANKLIN GAS SERVICE 597 the completion of the dinner Meador drove the men back to the office and, in parting, asked them to think about it and let him know whether they decided to vote the Union out. He gave Goodbar his business card. On the following day, March 15, Meador stopped Sullivan on his route and told him some of the things he had told the other three employees at the dinner which Sullivan missed. He mentioned, among other things, that he thought he could clear up the salary problem if the men would decide how much they wanted and would fill in a- form stating the amount they thought they should have but warned that if the figure was too high, Respondent would have to let them go. He asked Sullivan to think about it and let him know what the men had decided. Meador met with the four employees again at the warehouse toward quitting time on April 2. He asked whether they had reached any decision on the proposition he had made to them at their last meeting. They indicated that they were concerned about their job security and asked how long they would have their jobs if they acceded to his proposal to vote the Union out and then wrote their own salary checks in amounts not to exceed $700 a month. Meador replied that Respondent would put sufficient money in a bank as security to pay them for at least a year. He explained that Respondent needed them, that they were trained and that Respondent could not go on the street and find replacements for them. The employees then asked him other questions, - why they were not getting the raises which were "coming" to them, why the employees at other Petrolane facilities nearby were making more than those at St. Clair, why employee Sullivan (who had been hired subsequent to the Union's certification) was being paid more than the other St. Clair employees, and whether Respondent was negotiating with the Union in good faith.6 Except to state that the employees' salaries would be increased if they voted the Union out, Meador professed not to know the answers to the other questions He promised, however, to try to find the answers. On April 4, Meador again met with the four employees. He told them that he had talked to McCaffrey and had the answers to some of the questions which he could not answer at his previous session with them.? With respect to the overdue raises in pay about which the men had been complaining, he explained that Respondent could not grant the raises then because the employees had voted the Union in and Respondent had to negotiate with the Union about salaries, starting with their current salaries. Meador told them that in^ the nearby Washington operation of Petrolane, the salary increase "matter was taken care of" because there had been a representation election and the Union had been voted out. He told them that Sullivan had been hired at a higher salary than the other employees were receiving because Respondent believed he had management capabilities. He also told them that getting through to McCaffrey and having some decisions made by the latter. Hinson similarly testified that he understood that Meador himself could not change working conditions but Hinson talked to hun because Meador "said he would try to help us." 'After each bargaining session Union Representative Boyer or Kuper would call one of the four employees in the unit, give a report on what had happened, and that employee would then inform the other employees. The employees therefore presumably knew when meeting with Meador that bargaining negotiations had terminated on Maich 26, with an announcement by the union representatives that they did not believe that Respondent was bargaining in good faith and that the Union intended to file unfair labor practice charges. Respondent was going to negotiate in good faith and that Sullentrup had full authority to negotiate.' On March 20, shortly after one of the meetings between Meador and the employees, District Manager Sullentrup sought out employee Goodbar at the bottle dock and asked him what Meador had wanted. Goodbar said that they had discussed the Union. Sullentrup then stated that Petrolane could ask for another election. Goodbar replied that the employees were not going to ask for one. Sullentrup then asked Goodbar how the employees would feel about another election. Goodbar responded that he had not talked to any of the employees about it and did not know how they felt. Sullentrup asked for Goodbar's opinion and Goodbar stated that he had not thought about it and could give no opinion at that time. Meador's attempts to induce the employees to reject the Union as their bargaining agent in order to obtain increases in pay and other better working conditions and his promises to do what he could to help them in these respects, even going over the head of Regional Manager and Vice President McCaffrey to Respondent's president, if necessary, if the men would vote the Union out, were patently coercive. Meador's conduct also constituted an unlawful attempt to bargain individually with the employees, in derogation of their right to be represented by their chosen bargaining agent Respondent seeks to exculpate itself from responsibility for Meador's conduct by contending he had no authority himself to put into effect the working conditions he discussed with the men and no authority to make the statements or promises which he made to them. However, Meador was a responsible representative of Respondent. The men's morale and efficiency were important factors in enabling him to function effectively as retail sales manager and he was acting in the interest of Respondent in taking the action he did. He was, moreover, closely identified with management in the eyes of the employees. Respondent accordingly is responsible for his actions described above, which, it is found, were in violation of Section 8(a)(1) of the Act. N.L R.B. v. Solo Cup Company, 237 F.2d 521, 523-524 (C.A. 8). Also coercive and an unlawful interference with the employees right to be represented by their bargaining representative was Sullentrup's interrogation of Goodbar on March 20 about how the employees felt about another election and his statement that Petrolane could ask for another election. 'Meador testified that he did, indeed, talk to McCaffrey about a morale problem existing at the St. Clair operation but did so only in a general way without betraying the confidence of any employee and that he did not divulge any specific complaint that the employees had He stated that he asked McCaffrey whether Respondent was bargaining in good faith with the Union and received an affirmative reply. McCaffrey testified that he discussed the morale problem at St. Clair with Meador only insofar as the problem might affect Meador's sales efforts; that Meador reported that the employees were demoralized and antagonistic toward their local manager, Sullentrup, because they felt there was an unequality in the workload and salaries being paid at St. Clair and in adjoining Petrolane districts According to McCaffrey, he and Meador then discussed "the general philosophy regarding the differences in rates of pay between two adjoining locations." 'The findings regarding Meador's conversations with the men are based upon the composite, mutually corroborative and credited testimony of Goodbar, Hinson, Sullivan, Obermark and Meador. Although some witnesses remembered more than others and there are some slight differences in their accounts of what happened , there is little dispute as to the essential facts 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Respondent's Unlawful Refusal To Bargain 1. Background: Early attempts by the Union to bargain Following the Union's certification on April 3, 1967, as the bargaining representative of Respondent's employees in the unit found appropriate, Union Representative Jack Kuper, on May 8, 1967, wrote Respondent's district manager, Sullentrup, stating that he was enclosing a copy of the National Master Freight Agreement and the Central States Area Local Cartage Supplemental Agreement expiring on March 31, 1967; that the replacement for this contract was then being voted on; that the replacement contract provided, among other benefits specifically mentioned, for a 25 cents an hour increase for the first year and 15 cents an hour increases for the following 2 years. Kuper proposed that the replacement contract be accepted as the contract for Respondent's employees. The enclosures referred to and described in this letter were apparently not in fact enclosed. Shortly after mailing this letter, Union Representative Kuper arranged with Respondent's district manager, Sullentrup, for a bargaining meeting to be held on May 15 On May 11, however, Sullentrup wrote Kuper, canceling the May 15 meeting because of a conflicting engagement and promising to get in touch with Kuper the following week to set up another meeting date.' On May 17, Sullentrup wrote Kuper suggesting a meeting on Wednesday, May 24, at 4:45 p.m. Kuper notified Sullentrup by telephone that he could not meet at the suggested time because that would fall on the ^ fourth Wednesday of the month when the Union had meetings starting at 6:15 in the evening. Kuper suggested that they meet on May 29 instead. Sullentrup did not commit himself over the telephone. Instead, he wrote Kuper on May 23, that he would be unable to meet on May 29 but could meet on Friday, May 26, at 3:30 or 3:45 p.m. Kuper did not see this letter until he arrived back in St. Louis from an out-of-town trip at noon on May 26 and he had his secretary call Sullentrup and tell him that the Union would be unable to meet that day. Later Kuper and Sullentrup arranged by telephone for a meeting on Monday, June 19. This meeting was held at Respondent's bulk plant in St. Clair at about 2:30 or 3 p.m. Union Representatives Kuper and Boyer and an employee member of the bargaining committee, Bob Wideman, were present for the Union.1° Sullentrup was the sole Respondent representative present. At this meeting Sullentrup, for the first time, disclosed that he had not received the copies of agreements which the Union had purported to enclose with its May 8 letter and Kuper, during the meeting, supplied Sullentrup with a copy of each as well as with a summary of the changes in the old contract. The meeting lasted only 15 or 20 minutes. Sullentrup stated that the proposed contract was lengthy and that he would like to look it over and check with other representatives of Respondent about it, then get 'The Union representatives had their headquarters in St. Louis, about 65 miles from Respondent's offices in St Clair, and in attempting to set up bargaining conferences , the parties had to communicate by letter or telephone. Most of the time, as shown below, the Union would attempt to communicate with Sullentrup by telephone Sullentrup on the other hand, seldom committed Respondent to a date by telephone and would instead, respond later by letter, thereby precluding a discussion and quick agreement upon a mutually satisfactory meeting date. in touch with the Union again. The occurrences above described took place prior to July 18, 1967, the cut-off date under the limitations proviso to Section 10(b) of the Act and no unfair labor practice finding is based on any employer conduct occurring prior to July 18. The evidence above recited, however, is relevant as background in helping to understand what occurred thereafter. . 2. Unsuccessful attempts to arrange bargaining conferences prior to filing by the Union of its first unfair labor practice charge on January 17, 1968 After waiting in vain for a month for Sullentrup to study the Union's bargaining proposals and get in touch with the Union, as Sullentrup had promised to do, Union Representative Boyer, on July 20, telephoned him to inquire whether he had finished studying the contract and was in a position to negotiate. Sullentrup replied that he had not completed his study of the proposals and would get in touch with Boyer when he had done so. About mid-August, still having received no word from Respondent, Boyer again called Sullentrup. Sullentrup explained that he still had not had an opportunity to look over the proposals fully or to be in touch with Respondent's regional manager and vice president, McCaffrey, about it. He stated that he would get in touch with the Union after he had seen McCaffrey. This was apparently the first time Respondent had given any indication that McCaffrey would be involved in the bargaining In early September, Boyer again called Sullentrup, stated that "it was getting late" and inquired about Sullentrup's intentions. Sullentrup replied that he was still trying to get in touch with McCaffrey but that business commitments had made McCaffrey unreachable. Shortly thereafter, in late September, Boyer sought the aid of the Federal Mediation and Conciliation Service in attempting to arrange bargaining conferences. Thereafter, on October 7, Sullentrup wrote Boyer enclosing an interoffice communication from McCaffrey regarding his business schedules, and informing Boyer that McCaffrey would not be available for a meeting until October 31. He suggested Tuesday, October 31, or Wednesday, November 1, at 4:30 p.m. as meeting dates. Boyer replied on October 10, stating that the October 31 date would be fine but requested that the meeting be in St. Louis at the Union's office since previous proposed meetings at the St. Clair bulk plant had been canceled. On October 24, Sullentrup wrote Union Representative Kuper that there had been "another change in plans" since he had talked to Kuper over the telephone on the previous day. He explained that an October 26 date apparently agreed to on the, telephone was "out" because McCaffrey would be unavailable then but stated that McCaffrey would still be able to attend the previously proposed October 31 meeting. He proposed that if October 31 was not agreeable, Respondent could meet at 4:30 p.m. at the St. Clair bulk plant on Friday, November 3 or Friday, November 10. By telephone Union Representative Boyer advised Sullentrup that he would be unable to meet at 4:30 p.m. on Tuesday, October 31. Sullentrup then wrote Boyer on October 30, suggesting a 4 p.m. meeting on November 6 or 7 or 10, at the St. Clair bulk plant. "Wideman was subsequently discharged and neither he nor any other employee ever thereafter attended a bargaining conference PETROLANE FRANKLIN GAS SERVICE 599 On November 2, Boyer wrote Sullentrup reminding him of reasons previously stated as to why Boyer and Kuper ..ould not meet as late as the 4 or 5 p.m. suggested hours on October 31 or any of the other dates proposed by Sullentrup, namely that the local was "a Miscellaneous Local necessitating numerous meetings throughout the month all of which are scheduled in the evening." He expressed a willingness to meet on any day during the week of November 6 at an earlier hour so that the parties would have a reasonable time to negotiate and so that the union representatives could be back in St. Louis about 65 miles away in time for their union meetings." Sullentrup replied by letter to Boyer dated November 2 that McCaffrey would be available for a meeting in St. Clair at 3 p.m. on Friday, November 10, and suggested a meeting at that time. Sullentrup wrote Boyer again on November 9, stating that since he had received no confirmation from the Union as to the proposed November 10 meeting date, he had informed McCaffrey that it would be unnecessary for him to attend. He proposed a new date, Friday, November 17, at 3 p.m. at the St. Clair plant. On November 15, Sullentrup again wrote Boyer, referring to a telephone conversation had between the two of them on November 10, and Boyer's promise to call Sullentrup about a confirmation of the proposed November 17 date. Sullentrup informed Boyer that he told McCaffrey on the preceding day about not having received a confirmation from the Union as to the proposed November 17 date and that McCaffrey had decided to remain in Indiana for the balance of the week Sullentrup stated that the following week would be a busy one for both himself and McCaffrey and pioposed another meeting date, Friday, December 1, at 2 p.m. The record does not show what, if any, response the Union made to Respondent's letter of November 15. However, in early December, Federal Mediation Commissioner O'Keefe informed Boyer that he had had difficulty in getting in touch with anyone from Respondent but had finally talked to someone. He suggested that the Union again try to set up further bargaining sessions. The Union, instead, filed an unfair labor practice charge against Respondent on January 17, 1968, alleging that Respondent had refused to bargain in good faith. 3. Bargaining conferences subsequent to the filing of unfair labor practice charge Following the filing of the unfair labor practice charge already mentioned, the parties finally held a bargaining conference on Monday, February 19, 1968. Participating were Boyer and Kuper for the Union and McCaffrey and Sullentiup for Respondent. Boyer asked McCaffrey if he had had an opportunity to study the Union's proposals submitted on June 19, 1967, and was ready to make recommendations for counterproposals. McCaffrey replied that he had studied the proposals and did not believe that they quite fitted Respondent's operations. Kuper responded that the proposed contract might not fit "McCaffrey testified that during the summer and early fall when he was busy much of the tune in Wisconsin and other States negotiating the acquisition of new business locations for Petrolane , he would normally fly to St. Louis enroute to his Salem, Illinois, headquarters, arriving in St Louis at about 10 a.m. and that he would have been available for negotiations with the Union "on Friday afternoons any where in the St. Louis area." Neither he nor Sullentrup , however, informed the Union of this fact Respondent's type of operation but that some items were basically the same in all contracts and suggested discussing those items. Among other things, the parties discussed health and welfare, a pension program and wages, but no agreement on any of these items was reached. Pursuant to McCaffrey's request that Respondent be furnished with a copy of a contract with employers whose operations more closely resembled Respondent's operations, the Union representatives agreed to send Respondent copies of the Union's contracts with Tuloma Gas Company and Geldbach Petroleum Company. At McCaffrey' s suggestion, it was agreed that when a copy of the contract more nearly applicable to Respondent's operations was received, it would be discussed point by point, that marginal notes would be made and that thereafter a proposed contract would be typed up and resubmitted. McCaffrey stated that any contract agreed upon during the negotiations would have to be approved by him whether or not he was present during the negotiations. At Respondent's request the parties agreed that the next meeting would be held in Carlyle, Illinois (about 100 miles from St. Clair and about 50 miles from St. Louis) on February 26. Following the February 19 bargaining conference, a settlement agreement covering the pending unfair labor practice charge was entered into and approved by the Board's Regional Director. Respondent posted appropriate notices at its facilities as a part of the settlement agreement.' 2 The next bargaining conference was held on Monday, February 26, at Carlyle, Illinois, as agreed upon, with the same parties participating. The meeting lasted about 2 hours. The Union representatives had neglected to mail to Respondent copies of the Tuloma and Geldbach contracts which they indicated they would send but brought copies with them to the meeting. It was decided that the Tuloma contract more nearly related to Respondent's operations and it was used as a basis for negotiations. The parties started discussing the contract provisions from the beginning and some areas of agreement were found. During the meeting Respondent's representatives mentioned that they would like to refer the Tuloma contract to Petrolane's California office for study. The parties agreed to and did meet again on March 4. At the March 4 meeting, which was held in St. Clair, the same parties were present. They started discussing terms of the Tuloma contract where they had left off at the previous meeting. Respondent offered a few oral counterproposals and some further progress appears to have been made. With respect to the Tuloma contract provision for 8 paid holidays, Respondent's representatives explained that Respondent was then granting only 6 paid holidays and that 2 more was "a little bit too much, that they could possibly agree on one." The Union representatives then proposed a paid holiday to fall on the employees' birthday and, according to the credited testimony of Kuper and Boyer, this proposal was agreed upon. Respondent's representatives, during the course of the meeting, told the Union representatives that with respect to some or a majority of the items in the Tuloma contract, Respondent would have to check with its "On May 7, 1968, however, the Regional Director, after investigating a further charge filed by the Union on March 27, 1968, alleging violations of Section 8(a)(1) and (5) of the Act, issued an order revoking approval of the settlement agreement and thereafter issued a complaint which alleged presettlement as well as postsettlement unfair labor practices by Respondent 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attorney in California. At the conclusion of the meeting, at Kuper's request, McCaffrey agreed that Respondent would submit its own proposal where the Union proposal did not fit Respondent's operation and would submit a counterproposal on provisions which Respondent could not agree to. McCaffrey stated that he would try to supply the Union with Respondent's complete proposal for an agreement at the next meeting. March 20, was set as the tentative date for the next meeting. On the morning of March 20 (the same day that Sullentrup inquired of employee Goodbar as to how the employees would feel about another election) Union Representative Boyer telephoned Sullentrup and inquired whether the meeting for that afternoon was "still on." Sullentrup stated that he guessed that it was but that McCaffrey would not be present. Boyer then asked whether Sullentrup had authority to negotiate or reach agreements and Sullentrup replied that he did "to a point." Boyer asked what Sullentrup meant by that remark but Sullentrup did not respond. Boyer then suggested that maybe Sullentrup did not really have authority to negotiate and that it might be best to wait until McCaffrey was available. The parties then agreed to meet on March 26, when it was believed that McCaffrey would be available. On the morning of March 26, Boyer again telephoned Sullentrup to confirm the meeting date for that afternoon and Sullentrup informed him that the meeting was "still on" but that again McCaffrey would be unable to attend. Boyer then repeated his inquiry as to whether Sullentrup had authority to negotiate and Sullentrup replied "to a point." Boyer replied that the Union representatives would come to the meeting and see if the parties could reach any informal agreements. At the March 26 meeting, which was held at the Knights of Columbus hall in St. Clair, Sullentrup did not submit Respondent's own proposed contract which McCaffrey had promised at the previous meeting that Respondent would try to supply. Sullentrup mentioned that he had called Respondent's attorney in California "to get confirmation on some of the articles" in the Union's proposed contract but that because of construction work going on in the background, he could not hear anything the attorney said. The parties started reviewing the items in the Tuloma contract which had been previously agreed upon. When they reached the provision for a seventh paid holiday, which was to be the employees' birthday, Sullentrup remarked that his notes did not indicate any agreement on that subject, and that he did not remember agreeing on that subject. The Union representatives then turned to a discussion of the Union's proposed health and welfare plan and told Sullentrup what it would cost. Sullentrup replied that the- plan was not sufficiently adequate to justify the cost and stated that he could buy the coverage cheaper. The Union representatives then asked Sullentrup to explain his plan and how much it would cost, but Sullentrup gave no specific information regarding any such plan, merely repeating "that he could buy a better plan cheaper." With respect to some of the Union's contract proposals, Sullentrup expressed a willingness only to agree to Respondent's current practice or what the law required any way. Sullentrup stated that he had no authority to make an agreement on a couple of other proposals made by the Union. During the discussion, a car drove into a lot outside of the building and Sullentrup arose to see who was in it. At that point, the Union representatives stated that they believed that Respondent was stalling and not negotiating in good faith. They again ,asked Sullentrup if he really had authority to bargain and he replied that he had authority in some areas but did not explain what areas. The Union' representatives then stated that they were going to file an unfair labor practice charge with the Labor Board. Sullentrup replied, "Okay," as the Union representatives left. In my view, Sullentrup's conduct at this meeting, especially considered in the light of Sullentrup's past noncooperation and frustration of bargaining attempts and Respondent's concurrent attempts to destroy the Union's majority status fully warranted the conclusion of the Union representatives that Sullentrup was stalling and not attempting to bargain in good faith.- The The Union filed an unfair labor practice charge against Respondent on the following day and no further bargaining negotiations took place between that date and the time of the hearing herein in July 1968. 4. Analysis and conclusions with respect to the alleged refusal to bargain The evidence outlined, supra, shows that for over 9 months following the Union's May 8, 1967 letter proposing that Respondent accept certain contract terms, and despite numerous attempts by the Union to arrange a- bargaining conference, Respondent could not agree with the Union on an acceptable date. The only meeting during this period was on June 19, 1967 and this could not be called a bargaining conference since no contract terms were discussed and the Union merely presented to Respondent the contracts which it proposed as a basis for bargaining and agreed that Respondent should have time to study the proposals before commencing to bargain about them.14 Although Sullentrup had promised to call the union representatives as soon as he had time to study the Union's proposals and check with other representatives of Respondent about them, the union representatives waited in vain for such a call. Each time in July, in August and in September when Union Representative Boyer called Sullentrup about negotiating a contract, Sullentrup replied either that he had not finished studying the Union's proposals or that he had been unable to get in touch with Regional Manager McCaffrey about them. Even after, at the Union's request, a representative of the Federal Mediation and Conciliation Services was called in to assist in setting up a bargaining conference and Respondent finally proposed some meeting dates, these dates were usually for late in the days and on Fridays when, as Respondent knew, it was difficult for the Union representatives to come to St. Clair and get back to St. Louis in time to preside at regularly scheduled union meetings, or the scheduled meetings between Respondent and the Union were canceled by Respondent. Sullentrup testified that the unavailability of McCaffrey was one of the major reasons why Respondent had difficulty in setting up dates for meetings - in the "The findings regarding the bargaining conferences and the attempts to set up bargaining conferences are based principally upon the testimony of Union Representatives Boyer and Kuper, confirmed by some documentary evidence and some of the testimony of Sullentrup and McCaffrey. There is no substantial dispute as to the facts 'To be sure, the Union had been careless in failing to enclose these proposals with its May 8 letter as it indicated in the letter it was doing, but Respondent did not see fit to have this error corrected by informing the Union of its omission during the several telephone conversations Sullentrup had with Union Representative Kuper and in the two letters from Sullentrup to Kuper prior to June 19. PETROLANE FRANKLIN GAS SERVICE 601 summer and fall because McCaffrey was usually unavailable from Monday, through Thursdays because of the negotiation of new acquisitions and during the winter because both he and McCaffrey were kept busy with the seasonal demands of Respondent's business.15 But pressing demands of an employer's business cannot excuse continued refusals to meet with a bargaining representative. If an employer's obligation to meet with the Union representatives and negotiate a contract are permitted continuously to be relegated only to those times when the employer has no other business needing his attention, contract negotiations might have to wait forever. Respondent had an obligation under the statute to provide a representative who could meet with reasonable promptness and negotiate." It is noted, moreover, that although the Union had requested meetings in St. Louis, and McCaffrey, during the summer and fall of 1967 usually flew into St. Louis at about 10 a.m. en route home or his office on Fridays and, as he testified, could have been available for bargaining sessions in St. Louis, on Friday afternoons, Respondent never informed the Union of this fact. I find that Respondent, prior to its February 19, 1968 bargaining conference with the Union failed to comply with its statutory obligation to meet at reasonable times and places and with reasonable frequency for the purposes of collective bargaining. The General Counsel's contention that Respondent also refused to bargain in good faith by failing to provide a bargaining representative with authority to negotiate and reach agreements appears to have merit. Although Sullentrup over the phone on March 20, 1968 and at the bargaining session held on March 26 told union representatives that he had authority to bargain "to a point," he refused to clarify what he meant by that statement. Neither his conduct at the March 26 meeting or during the preceding year indicated any authority to negotiate and bind Respondent. Upon first receiving the union contract proposals on June 19, 1967, Sullentrup told union representatives that he would like to check with other company personnel about the proposals. From August 1967 until the February 19, 1968 bargaining conference, Sullentrup repeatedly made excuses for not meeting with the Union because McCaffrey was unavailable. To be sure, he never expressly stated during that period that he did not have authority to bargain for Respondent but he most certainly gave the Union cause to believe that McCaffrey's presence was necessary in order to bargain. It is noted, moreover, that during the three sessions when McCaffrey was present McCaffrey did most of the talking for Respondent, thereby reenforcing the belief of the Union representatives that he was the official who could speak authoritatively in the field of bargaining. Accordingly, even if, as Sullentrup testified at the hearing, he in fact has authority to make agreements for Respondent which he feels Respondent would accept, his conduct prior thereto reasonably led the Union representatives to believe that he did not have such authority. I need not decide whether Sullentrup in fact had authority to negotiate and reach an agreement with the Union, for even if he did have such authority, his conduct in misleading the Union representatives would "During this period the Union even proposed meetings on Saturdays and Sundays, since it was so difficult to agree upon weekdays, but Respondent was unwilling to meet on those days. Sullentrup testifned at the hearing that he did not believe Saturday or Sunday meetings would be necessary. "Insulating Fabricators , Inc., 144 NLRB 1325, 1328, "M" System, Inc, 129 NLRB 527, 549 have been inconsistent with Respondent's obligation to bargain in good faith. The record fully supports the General Counsel's contention that Respondent also showed a lack of good faith in bargaining by repudiating at the last bargaining conference the previously agreed upon provision for a seventh paid holiday to fall on the employees' birthdays and by failing to submit Respondent's own proposed contract as Respondent had promised on March 4 it would try to do. Sullentrup's apparent explanation for failing to submit such a contract was that when he called Respondent's counsel in California for his views on the Tuloma contract which formed the basis for negotiations, he could not hear what the attorney said because of construction noise in the background Surely, an employer representative truly desiring to fulfill his commitment to submit a counterproposal, would have found some means of communicating with his counsel. That Respondent throughout the period covered by the complaint was not bargaining in good faith is further evidenced by its persistent and almost, simultaneous attempts to undermine the Union and destroy its majority status while purporting to bargain with the Union - as shown by its efforts, in dealing with its employees individually, to place blame on the Union for its inability to grant the employees wage increases and other improvements in working conditions comparable to those in Petrolane's nearby nonunion facilities, by its attempts to induce the employees to vote the Union out of Respondent's business and by its promises of benefits if they did so. With respect to Respondent's decision that it would not be "good business judgement" to grant wage increases while under an obligation to bargain with the Union, McCaffrey was questioned at the hearing and replied as follows: Q.... Mr. McCaffrey, did you ever ask Local 610 whether they would have any objection if you would raise the St. Clair people to the same level as the nonorganized districts in the same general area? A. No, I did not, because at that point it seemed to me that our employees at that point, then, would have given the Union credit for the raise. It is found `hat Respondent has failed and refused to bargain in good faith with the Union, in violation of Section 8(a)(5) and (1) of the Act by: (1) Failing and refusing to meet at reasonable times and places and with reasonable frequency for purposes of collective bargaining; (2) Deliberately leading union representatives to believe that it was failing and refusing to provide a bargaining representaitve on and after March 20, 1968 with authority to negotiate and reach agreements; (3) Repudiating an agreement made in prior negotiations with respect to paid holidays; (4) Failing and refusing to submit promised counterproposals for a complete contract; and (5) Engaging in acts and conduct designed to undermine the Union and destroy its majority status during the period when the Union was attempting to negotiate a contract. D. The Discharge of James L. Goodbar Goodbar started working for the Washington, Missouri, facility of Petrolane in 1963 and was transferred in January 1964 (according to Goodbar) or February 1965 (according to Sullentrup) to Respondent's St. Clair operation, receiving credit on Respondent's records for his employment at the Washington operation. He worked regularly at servicing and installing gas appliances but 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also at times drove a bulk truck for Respondent prior to his discharge on May 3, 1968. The discharge, Respondent contends, was the result of an accumulation of complaints against Goodbar. According to Sullentrup, he had the feeling for about 2 years before Goodbar's discharge that Goodbar was an "agitator" of the employees and this feeling became stronger during the last year of Goodbar's employment. During the fall of 1967 he accused Goodbar several times of being an agitator, of stirring up the other employees against him and of making it difficult for him to manage the district. In explaining what he meant by his feeling that Goodbar was an agitator, Sullentrup testified that sometimes he would find Goobar in a huddle with the other men and that all of them would stop talking when Sullentrup appeared and also at other times he would hear snickers as he went out the door. He believed that Goodbar talked to the other employees not only about wages and working conditions but also about the operation of Respondent's business, an area which Sullentrup believed to be his sole prerogative. Goodbar credibly testified that the previously good relationship he had with Sullentrup began to deteriorate at about the time the Union came into the picture. At the time Goodbar received his last increase in salary in October 1966, he was assured by Sullentrup that he would receive another $20 a month increase in February 1967. When he did not receive the increase and asked Sullentrup about it, Sullentrup explained that he could not grant a raise while negotiating with the Union. Respondent's withholding of long overdue salary increases to Goodbar and the other employees while delaying bargaining negotiations and failing to bargain in good faith with the Union, as already mentioned, caused a breakdown in morale among all of the employees and there is no doubt that they talked among themselves about their grievances, as they did to Sales Manager Meador in March and April. The strained relationship between Sullentrup and Goodbar apparently reached a peak early in January 1968. On January 2, Sullentrup asked Goodbar whether the Union had been in contact with him. When Goodbar replied that it had not and asked Sullentrup whether he had heard anything from the Union, Sullentrup said he had not and asked Goodbar what he thought was going to happen between the Union and Petrolane. Goodbar responded that he did not know and had no idea. Sullentrup apparently interpreted Goodbar's response as less than candid and remarked that the two of them could not agree on anything any more and seemed to be far apart. On the following day, January 3, there occurred the meeting previously referred to between Sullentrup and all the employees at which they expressed their dissatisfaction with working conditions. In addition to inquiring as to why the employees at Petrolane's Sullivan operation were making more money than they were, they expressed the view that Respondent should not send one of its bulk trucks which the Sullivan facility wanted to that location because the Sullivan employees were already working less overtime than Respondent's employees and the loss of a bulk truck at St. Clair would cause even more overtime by Respondent's employees. Sullentrup testified at the hearing that he became angry over these remarks because: "This was my decision to make as to whether this truck went to Sullivan, Missouri." Sullentrup added that he had not intended to let the truck go to Sullivan." On the next day, Sullentrup approached employee Obermark, asked why everyone "was so shook-up" at the meeting on the preceding day and expressed the view that Goodbar was stirring up trouble in connection with the bulk truck talk. Obermark assured Sullentrup that Goodbar "didn't have a thing to do with it." Nevertheless, Sullentrup continued to assert that Goodbar was responsible for the men's dissatisfaction. On Saturday, January 6, after Obermark told Goodbar of the accusations Sullentrup had made against him, Goodbar approached Sullentrup and asked him, in the presence of employees Sullivan and Hinson, about an alleged remark that Goodbar was an "instigator." Sullentrup responded, "That is right, you are, you are always stirring up trouble, leading the men in the wrong direction and everything else." He told Goodbar "I may have to eat my words for saying this . . . . I think you are the trouble maker." He asked Goodbar to see him in his office in private at 7:30 p.m. on the following Monday. Goodbar's normal work day ended at 5 p.m. He protested against having to come back to the office in the evening and it was agreed that they should meet at 4:30 p.m. on Monday. The private meeting between Sullentrup and Goodbar did not occur until Tuesday, January 9, because Goodbar, Hinson and Sullentrup were working on an out-of-town job until 9:30 p.m. on Monday. At their meeting Sullentrup gave Goodbar a letter, dated January 5, 1968, listing a number of complaints Sullentrup had against Goodbar dating from the first year of his employment at the St. Clair operation and warning Goodbar that a repetition of any of these practices or the development of new ones Sullentrup considered detrimental to the operation of Respondent would subject Goodbar to discharge. Sullentrup discussed these complaints with Goodbar. The letter listed (1) two "at fault" accidents Goodbar had had in 1965 and "possibly one more at fault";" (2) personal appearance - referring to the fact that in Sullentrup's view, Goodbar appeared at work more than the other employees needing a shave or haircut; (3) service work - referring to the fact that occasionally and in particular on two occasions in November 1967, Goodbar had not remedied an overheating or other problem on his first service call and had to return to service the customer, and also referring to an occasion in 1965 when Goodbar was given a 3-day suspension for estimating rather than actually reading customer meters; (4) creditors - referring to an occasion in August 1967 when Goodbar was involved in divorce proceedings and a writ of garnishment was served upon Respondent, then released 2 days later, and to other alleged occasions, only one of which Sullentrup could specifically recall, when, on an unspecified date, a creditor called Sullentrup about a delinquent account of Goodbar's; (5) service truck - a "Since a transfer of the truck would have adversely affected the employees' working conditions, they, of course, had a right, protected under the Act, to protest against any possible transfer. "The latter referred to an accident occurring in November 1967 when Goodbar's truck slid in the mud as he was "setting a tank " Although Sullentrup and McCaffrey at the hearing sought to give the impression that Goodbar may have been at fault on that occasion, Petrolane's Safety Committee (composed of Petrolane' s insurance coordinator, its General Counsel, a district manager and two employee drivers) whose sole responsibility it is to determine whether an employee is at fault , bad not found Goodbar at fault and in March 1968 Respondent presented him with a 3-year Safety Award Pin signifying that he had a perfect safety record for the year 1967 and 2 other years. PETROLANE FRANKLIN GAS SERVICE 603 charge by Sullentrup that Goodbar was not washing his truck as frequently during the winter of 1968 as he should, though Goodbar claimed he was washing it just as frequently then as during the winters of 1967, 1966 and 1965; (6) an allegation that Sullentrup had spoken to Goodbar in November about a report from the office girl that she smelled liquor on Goodbar's breath and that Goodbar had denied the accusation;" and (7) Sullentrup's 'belief, already discussed, that Goodbar was an agitator, trying to downgrade the attitude of the other employees toward Respondent. The record does not disclose any specific complaint by Sullentiup regarding Goodbar's job performance following the January 5 warning letter until Goodbar's discharge on May 3 During this period, on April 3, however, there occurred the incident already mentioned wherein Sullentrup questioned Goodbar about the subject matter of the employees' discussion with Sales Manager Meador on the preceding day and also about how Goodbar and the other employees felt about the Union and another election and was informed by Goodbar that the employees did not intend to ask for another election.'" This occurred after the breakdown in bargaining negotiations and after the Union, for a second time, had filed refusal-to-bargain charges against Respondent. On April 8, 1968, a few days after Sullentrup's interrogation of Goodbar, the latter met with a representative of the National Labor Relations Board in Lewis' Cafe near Respondent's office (where he had previously talked with Sales Manager Meador) and gave information regarding the charges which had been filed. On May 1, Goodbar drove a empty L-P gas bulk truck from a repair shop and parked it in the graveled fenced-in parking area (sometimes called the pen) adjoining Respondent's bulk plant, with the front wheels next to a partially imbeded telephone pole (described by some of the witnesses as a railroad tie). Respondent's safety manual requires that its bulk trucks be "'chock blocked" at all times when the truck is unoccupied.21 However, according to the credited testimony of Goodbar and the other three employees, none of them had ever chock blocked a truck when it was parked against the telephone pole inside the fenced-in area for they considered that parking the truck in that manner and in that location was the equivalent of chock blocking it. On May 3, when Goodbar reported for work, Sullentrup asked Goodbar if,he was the person who had parked the bulk truck in the fenced-in area and, upon being informed that Goodbar had parked it there, told Goodbar that he had been around long enough to know Company policy about blocking. Sullentrup stated, "I am going to let you go, this is the last straw." About that time, Sullivan and the other employees began arriving at work. Sullivan met Goodbar as the latter was leaving the plant office and learned from Goodbar that he had been fired. Sullentrup informed Sullivan that Goodbar had been fired "because he had failed to block the bulk truck." Sullivan then took Goodbar home. After Sullivan and Goodbar had left, Sullentrup told employee Hinson that he had to let Goodbar go. Hinson asked why. Sullentrup explained, "He didn't block the bulk truck and he knows better than that." Sullentrup "Sullentrup did not contend that he, himself, had ever detected the odor of alcohol on Goodbar's breath. "I find that this interrogation of Goodbar and suggestion that another election be held was, under the circumstances, independently a violation of Section 8(a)(l) of the Act. vA truck is chock blocked and cannot be moved when blocks are placed immediately in front of and behind a rear wheel. then showed Hinson the truck. On the way to the pen, Hinson told Sullentrup that he had parked there quite a few times and did not remember ever blocking the truck. Sullentrup replied, "Well, maybe you were agamst the tie or I didn't catch you."22 When Sullivan returned to the plant after taking Goodbar home, he told Sullentrup that he, Sullivan, did not believe that the reason assigned by Sullentrup for Goodbar's discharge was the real reason, adding that Sullentrup might as well fire him, too, since he had parked the trucks in the pen without blocking them. Sullentrup replied that if Sullivan did not like conditions at the plant, he could quit. Late in the afternoon Sullentrup called his three remaining employees together and told them that "he had to have team work" and that if they did not think he was fair, they could quit. In addition to the reason he had assigned that morning for discharging Goodbar, he now added as a further reason that Goodbar's creditors were after him. Sullentrup did not testify with respect to any trouble of the latter nature not already mentioned in the January 5 warning letter. He at first testified that he did not fire Goodbar when delivering the warning letter to him because he was "soft hearted" and swayed by sympathy for Goodbar on account of his recent divorce and financial difficulties, considerations which he discussed with McCaffrey and, contrary to custom, also with Respondent's General Counsel Wills, in Long Beach, California. He asserted that his consultation with Wills had nothing to do with the fact that there was a labor union in the picture. Later, however, he testified somewhat inconsistently that when calling Respondent's counsel in Long Beach, he was clearly proposing to discharge Goodbar and was dissuaded from doing so partly because of Goodbar's personal problems and partly because of the fact that the last time Sullentrup had discharged a man, an unfair labor practice charge had been filed agamst Respondent. (This was apparently a reference to the charge filed in behalf of Wideman, the employee member of the Union's bargaining committee who had been discharged.)" A careful review of all the evidence convinces me that the reasons assigned by Sullentrup for discharging Goodbar on May 3, are clearly pretextual and that the true reason was Sullentrup's opposition to the Union and his belief that Goodbar was primarily responsible for the employees' continued adherence to the Union and their discontent with working conditions. While Sullentrup, as Respondent's bargaining representative, was failing and refusing to bargain in good faith with the Union and attempting by various means to induce the employees to reject the Union and thereby, as he obviously hoped, relieve Respondent of any further obligation to bargain, Sullentrup was unsuccessful in getting any cooperation from Goodbar in this respect. The record does not show whether or not Goodbar, in fact, was leading the men or "agitating" them in their discontent over working conditions but it is obvious that Sullentrup believed for some time prior to the January 5 warning letter that Goodbar was doing so - as Sullentrup told Goodbar and "Because Sullentrup during his conversation with Hinson referred to the wheels as being 18 inches from the tie or pole and Hinson could see that this was not so, he and Sullivan later that day measured the distance between the pole and the nearest contact point on the front tires and found the distance to be about 4 inches "Sullentrup did not mention to Wills his belief that Goodbar was talking tc the other employees and downgrading the Company - one of the complaints listed in the warning letter. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees prior to that time. The statute protects employees in their right to engage in such concerted and union activities for their mutual aid and protection and Respondent could not lawfully discriminate against Goodbar because of its belief that he was an "agitator" or "instigator" in these respects. The record leaves no doubt that Sullentrup was motivated in issuing the warning letter to Goodbar primarily by his resentment over what he believed to be Goodbar's agitation of the men to express discontent over their working conditons . The most recent display of such resentment had occurred only 2 days before Sullentrup wrote the warning letter . That such resentment was the true or primary reason for the warning letter is evident from the fact that none of the complaints listed in the letter except Goodbar's alleged influencing of the attitude of the other employees was of very recent vintage. Nothing else , so far as the record discloses , had occurred since November 1967. The garnishment proceeding had occurred in the preceding August and the two at-fault accidents and suspension for failing to read meters had occurred in 1965. The reason first assigned by Sullentrup for discharging Goodbar on May 3, was so patently pretextual that employee Sullivan frankly told him so After learning that neither Sullivan or Hinson had blocked their trucks when they were parked against the pole in the fenced-in area, Sullentrup was forced later in the day to add another reason for Goodbar's discharge. By the time of the hearing, however, he had added all of the reasons expressed in the January 5 warning letter. These alleged reasons, except that relating to Goodbar 's influence on the attitude of other employees, are based upon stale complaints, some of them exaggerated or trivial , which, I am convinced, were not true considerations in Sullentrup's decision to discharge Goodbar. I find on the basis of the evidence outlined above and on the entire record that Sullentrup discharged Goodbar because he believed that Goodbar was engaging in conduct which, it is found, constituted protected concerted and union activities for the mutual aid and protection of himself and other employees and that his discharge was therefore in violation of Section 8(a)(3) and ( 1) of the Act.24 CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By discharging James L. Goodbar to discourage his engagement in union and other protected concerted activities for the mutual aid and protection of himself and other employees, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. All drivers, servicemen, helpers, and meter readers employed at Respondent's St. Clair, Missouri, facilities, '?he complaint alleges that Goodbar's discharge was also in violation of Section 8(a)(4) of the Act, and in support of this allegation, the General Counsel introduced evidence that Goodbar had given a statement to a Board agent in 1967 in connection with the discharge of Wideman, the employee member of the Union's bargaining committee, and another statement in April 1968 in support of a third unfair labor practice charge against Respondent . I am not satisfied, however, that Sullentrup knew of this activity on Goodbar' s part at the time of discharging him and do not find any violation of Section 8(a)(4). excluding office clerical and professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all, times since March 24, 1967, the Union has been the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. ' 5. By refusing on and after July 18, 1967, to bargain collectively with the Union, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. A preponderance of the evidence does not support the allegation of the complaint that Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(4) of the Act. THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, my Recommended Order will require that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. To remedy its discriminatory discharge of employee Goodbar, Respondent will be required to offer him reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of the discrimination by paying him a sum of money equivalent to the amount he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during such period. The backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent as ascertained by the formula adopted in Isis Plumbing & Heating Co., 138 NLRB 716. To remedy Respondent's unlawful refusal to bargain with the Union, Respondent will be required, upon request, to bargain collectively with the Union in the unit herein found appropriate. At the hearing the Union, through its counsel, requested that in addition to the customary type of bargaining order, a compensatory remedy be provided which will require Respondent to compensate its St. Clair employees for the overdue salary increases which, on the basis of increases granted employees at Petrolane's nearby Washington and Sullivan facilities, Respondent's employees would reasonably have been expected to receive had they not selected the Union as their bargaining representative. A meaningful order, it seems to me, should provide for some such remedy. The record in this case makes it abundantly clear that, as Respondent acknowledged, salary increases for the St. Clair employees were long overdue and the only reason for not granting increases such as had been granted to Petrolane's unrepresented Washington and Sullivan employees was the fact that Respondent's employees had selected the Union to represent them and the other employees had not. Respondent's Regional Manager McCaffrey, moreover, conceded at the hearing that the reason he had not offered to pay these overdue increases during bargaining negotiations with the Union was that he PETROLANE FRANKLIN GAS SERVICE 605 did not want the Union to take credit for obtaining such increases for the employees. The problem of providing a compensatory remedy, in general, for unlawful refusals to bargain is a very complex and troublesome one and no attempt will be made in this decision to pass upon the practicability or reasonableness of such an order in general. 25 Bearing in mind that in attempting to redress a past unlawful refusal to bargain, the remedy devised should avoid the danger of circumscribing the parties' attempts in future negotiations freely to reach a mutually acceptable contract, I am convinced that a bargaining order can be drawn which at least in part will serve to rectify Respondent's past unlawful conduct. Such order will require that, upon request by the Union, Respondent shall immediately put into effect overdue salary increases for its employees at St. Clair which, on the basis of increases granted to Petrolane's unrepresented employees at the Washington and Sullivan facilities on or after March 24, 1967, the St. Clair employees would have had a reasonable expectancy of receiving, said increases to be retroactive to the dates and in the amounts similar increases were given to the Washington and Sullivan employees and to bear interest at the rate of 6 percent per annum - without prejudice, however, to Respondent's right to take such increases into account in bargaining with respect to other economic benefits for its employees. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent, Petrolane-Franklin Gas Service, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively 'with Miscellaneous Drivers and Helpers Union, Local 610, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All drivers, servicemen, helpers and meter readers employed at Respondent's St. Clair, Missouri, facilities, exclusive of office clerical and professional employees, guards and supervisors as defined in the National Labor Relations Act. (b) Discharging or otherwise discriminating against any employee because of his union membership or because he has engaged in protected concerted activities for the mutual aid and protection of himself and other employees. (c) Threatening any employee that it would be futile to have a union represent him. (d) Interrogating employees regarding the union sympathies of themselves or fellow employees or their intention to call for an election for the purpose of repudiating the Union as their bargaining representative. (e) Attempting to bargain individually with employees in the bargaining unit regarding their rates of pay or other working conditions. "The Board now has pending before it a consideration of this problem as it is presented in several other factual situaf ions See, e g., Zinke's Goods, Inc. (Case 30-CA-372, TXD-662-66) and Ex-Cell-O Corporation (Case 25-CA-2377, TXD 80-67) See also N.L.R B v. Beverage-Air Co., 402 F.2d 411 (C A. 4), wherein the court recently approved a compensatory type remedial order for an unlawful refusal to bargain (f) Promising benefits to employees in return for their rejection of the Union as their bargaining representative. (g) 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 designed to effectuate the policies of the Act. (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of all the employees in the unit described above concerning rates of pay, wages, hours of employment and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon request by the Union, immediately put into effect and pay salary increases to its employees at St. Clair comparable to those increases already granted to Petrolane's employees at its Washington and Sullivan, Missouri, facilities on or after March 24, 1967, said increases to be retroactive to the dates and in the amounts similar increases were given to said Washington and Sullivan employees and to bear interest at the rate of 6 percent per annum - without prejudice, however, to Respondent's right to take such increases in account in bargaining with the Union with respect to other economic benefits for its employees. (c) Offer to James L. Goodbar reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner described in the portion of the Trial Examiner's Decision entitled "The Remedy" for any loss of earnings suffered by reason of the discrimination against him. (d) Notify James L. Goodbar, if he is presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary or helpful in analyzing the amount of backpay due under the terms of this order. (f) Post at its facilities in St. Clair, Missouri, copies of the attached notice marked "Appendix."26 Copies of such notice, on forms to be provided by the Regional Director for Region 14, after being duly signed by an authorized representative of Respondent, shall be posted 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 insure that said notices are not altered, defaced or covered by any other material. (g) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith. 17 "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 " 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations not found herein. APPENDIX NOTICE TO ALL EMPLOYEES We are posting this notice in accordance with the Recommended Order of a Trial Examiner of the National Labor Relations Board who, after a hearing in which all parties had an opportunity to present their evidence, found that we had violated the law. We hereby notify our empolyees that: WE WILL, upon request, bargain collectively with Miscellaneous Drivers and Helpers Union, Local 610, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of our employees in the following appropriate unit: All drivers, servicemen, helpers and meter readers employed at our St. Clair, Missouri, facilities, exclusive of office clerical and professional employees, guards and supervisors as defined in the National Labor Relations Act; and when an understanding is reached, we will sign a contract with the Union. WE WILL, upon request by the Union, immediately put into effect and pay salary increases to our employees at St. Clair comparable to those increases already granted to Petrolane's employees at its Washington and Sullivan, Missouri, facilities on or after March 24, 1967, said increases to be retroactive to the dates and in the amounts similar increases were given to said Washington and Sullivan employees and to bear interest at the rate of 6 percent per annum - without prejudice, however, to our right to take such increases into account in bargaining with the Union with respect to ' other economic benefits for our employees. WE WILL offer to James L. Goodbar full reinstatment to his old job and will give him whatever backpay he has lost because of his discharge. If he is presently in the Armed Forces of the United States, we will notify him of his right to full reinstatement upon application after discharge from the Armed Forces. WE WILL NOT discharge or in any other way discriminate against any employee because of his union membership or activities or because he may join with other employees in complaining about his pay or other working conditions. WE WILL NOT question any employee about his or any other employee's feelings about the Union or about voting the Union out. WE WILL NOT attempt to bargain individually with our employees in the bargaining unit described above in regard to their pay or other working conditions. WE WILL NOT promise our employees any benefits in return for their voting the Union out WE WILL NOT in any other way interfere with our employees' right, guaranteed under the law, to organize, to form, join or assist a union, to bargain through the Union they have chosen, to act together for their mutual aid or protection, or to refuse to do any of these things. PETRO LANE-FRANKLIN GAS SERVICE, INC. (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 other material. If,employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis Missouri, Telephone 622-4167.