Tred-Air of California, Inc.

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tred-Air of California, Inc., and Teamsters Automo- tive Workers Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America. Cases 21-CA-9404 and 21-CA-9780 October 12, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 21, 1971, Trial Examiner Maurice Alexan- dre issued his Decision in the above-entitled proceed- ing, finding that Respondent has engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 proceeding 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 brief, and the entire record in the proceeding, and hereby adopts the findings, conclusions, and recommendations I of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Tred-Air of California, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i We find that the unfair labor practices committed by Respondent are of such a character as to reflect a predisposition on its part to thwart, by other means as well, employees' efforts to engage in legitimate concerted activities for the purpose of self-organization or other mutual aid or protection Accordingly, we shall adopt the broad Order recommended by the Trial Examiner, enjoining all forms of unlawful interference with employee rights guaranteed by Section 7 of the Act TRIAL EXAMINER'S DECISION MAURICE ALEXANDRE, Trial Examiner: This case was heard in Los Angeles, California, on February 4, 1971, upon a consolidated complaint alleging that Respondent had violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended.' In its answer, Respondent denied the commission of the unfair labor practices alleged. The issues presented are (1) whether or not Respondent was deprived of constitutional rights because it was represented at the hearing by its owner and president rather than by counsel, and (2) if not, whether or not the record establishes that Respondent unlawfully interrogated and promised benefits to its employees, unlawfully discharged Thomas E. Lopp, and refused to bargain with Teamsters Automotive Workers Local 495. Upon the entire record, my observation of the witnesses, and the briefs filed by the General Counsel and by Respondent,2 I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent has admitted the following allegations of the complaint: 2. (a) Respondent, a California corporation, is engaged in the business of retreading aircraft tires at Bellflower, California. (b) Respondent, during the past calendar year, in the normal course and conduct of its business operations, purchased and received goods and services valued in excess of $50,000 directly from suppliers located outside the State of California. 3. Respondent is now, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. I find the facts to be as admitted, and that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Teamsters Automotive Workers Local 495 is now, and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act. III. THE CONSTITUTIONAL ISSUE At the hearing, Respondent's owner and president, Odell Lopp, appeared for Respondent and gave the following responses to inquiries put to him: TRAIL EXAMINER: Mr. Lopp, are you an attorney? MR. LOPP: No. TRIAL EXAMINER : Do you believe that you can represent the Respondent in this proceeding? I The charge in Case 21-CA-9404 was filed on July 24, 1970, and a complaint based thereon was issued on October 8, 1970, alleging violations of Section 8(a)(1) and (3) The charge in Case 21-CA-9780 was filed on January 26, 1971, and the consolidated complaint was issued on February 2, 1971, alleging violations of Section 8(a)(1), (3), and (5) At the request of Respondent, the hearing was held on February 4, 1971, as scheduled 2 Following the close of the hearing, Respondent retained counsel 193 NLRB No. 97 TRED-AIR OF CALIFORNIA, INC. MR. LOPP: I never went into this before. I don't know if I can or not. I didn't get an attorney because I didn't think it was necessary to get one. Maybe it is. TRIAL EXAMINER: Well, that is something you have to decide I take it you have given some thought to the matter MR LOPP• Well, as far as that goes, I don't think that an attorney could help in this case. I haven't even talked to an attorney. TRIAL EXAMINER: Have you given any thought to whether you want to be representated by an attorney? MR. LOPP: I wanted to get it handled today and if I had gotten it handled by an attorney, I would have gotten an attorney and I would have had to wait and I wanted to take my chances on it today. TRIAL EXAMINER: Then, you are satisfied to go ahead? MR LOPP. Right. The hearing thereupon proceeded. As noted, following the close of the hearing, Respondent retained counsel, who now seeks a new hearing on the ground that under California law, only an attorney can represent and bind a corporation, and that "the denial of counsel for the [Respondent] corporation to appear was a denial of Due Process of law and the Equal Protection of law also, rights guaranteed by both the Fifth and Sixth Amendments of the U.S. Constitution." I disagree. A party's right to representa- tion in an unfair labor practice proceeding is governed, not by California law, but by Federal law. Cf. Rabouin v. N.L.R.B, 195 F.2d 906, 910 (C.A. 2). Section 10(a) of the Act provides that where a complaint is issued and served upon a "person" in such a proceeding, such person shall have the right to appear in person "or otherwise" to give testimony.; Section 102.38 of the Board's Rules and Regulations shall have the right to appear at the hearing in person, by counsel, "or by other representative." It is thus clear that a corporation may appear and be represented at a hearing by its president. Here, Respondent expressly waived the right to appear by counsel and voluntarily elected to be represented at the hearing by its owner and president who, it may be added, was accorded great leeway in presenting Respondent's case and in cross-examining witnesses. I accordingly find that no prejudice to Respon- dent has been shown. The request for a new hearing is denied. IV. THE UNFAIR LABOR PRACTICES A. Background Prior to January 8, 1970,4 Thomas E. Lopp, the nephew of Odell, was employed by Odell's son, Bob Lopp, in the latter's automobile tire retreading shop, which is located in the same building as Respondent's aircraft tire retreading shop. On the latter date, Thomas was hired by Respondent. On or about June 2, Thomas communicated with Local 495 (hereafter called the Union) relative to organizing Respon- dent's employees. On June 4, a representative of the Union met with Thomas and six other employees of Respondent, J Section 2(l) of the Act defines "person" as including a "corporation " I All dates referred to hereafter relate to 1970 unless otherwise stated. 5 Odell testified that Walker was his accountant 673 and all seven signed union authorization cards. The Union thereafter filed a petition for certification, an election was held on July 16, and the Union was certified on July 24. B. Interference, Restraint, and Coercion 1. About the middle or end of June, while Odell and his wife were out of town, a number of Respondent's employees, including Thomas, were called one at a time into Odell's office by Bob, who introduced them to an individual in the room and then left. Each of the employees was greeted by the individual, one Craig Walker, who identified himself simply as Odell's "attorney,"5 stated that Odell was upset by information that someone was attempting to bring in a union, interrogated them about whether they wanted a union or whether they knew anyone who was sufficiently unhappy to call the Union, promised paid vacations and other improved benefits if they voted against unionization, and threatened that Odell would eliminate their overtime if they voted to unionize. Odell did not dispute the occurrence of this incident, but credibly testified that he had been unaware of it until the day prior to the hearing. Remarks like those made by Walker are clearly prohibited by Section 8(a)(1) of the Act. The question is whether or not such remarks should be imputed to Respondent even though not authorized by the latter. I find that they should. Respondent's employees knew of the close familial relationship between Odell and Bob. They also knew that Odell had given Bob access to Respondent's shop .6 Thus, when Bob called the employees to Odell's office, he created the impression, thereby giving them reason to believe, that he was acting with the latter's approval. Since Odell had placed Bob in a position to create such impression, I find that Bob should be treated as an agent of Respondent, and that Respondent should be held responsible for the conduct of Bob and his subagent, Walker. 2. About one or two weeks before the election held on July 16, Odell told several employees that if they voted to unionize he would close down the shop and convert it into a warehouse. When one of the employees pointed out to him that it was his nephew, Thomas, who had organized the employees, Odell replied that if his nephew wished to work in a union shop, he should go to work for one. I do not credit Odell's denial that he made the above statements and find that they violated Section 8(a)(I). C. Discrimination At the election on July 16, a majority of Respondent's employees voted for the Union. On the following day, Respondent discharged Thomas, allegedly because of lack of work. For the reasons noted below, I find that the discharge was motivated by Thomas' role in organizing the employees. Although Odell testified that the general aviation work, which had been performed by Thomas, began to decline about two years ago and became "real bad" about the first part of January, the record shows that 6 Odell testified that Bob made repairs in Respondent 's shop , sometimes at the request of its employees, and that at times Bob turned on the electricity for the machines in the shop 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas was hired in that month and kept until July. At least one employee, Bullock, worked overtime for several months after the discharge of Thomas. Respondent retained Richard Perez, an employee who had less senionty than Thomas and whose job duties had been performed by Thomas. Although Perez was paid less than Thomas, Respondent did not give the latter an opportunity to remain in its employ at a lower rate of pay. Not long after the discharge of Thomas, Respondent hired several new employees. For these reasons, and in view of Respondent's knowledge of Thomas' role in organizing the employees, the timing of his discharge, and Respondent's antiunion bias, I find that the discharge of Thomas was discriminato- ry and violated Section 8(a)(3) and (1) of the Act. D. Refusal to Bargain On July 24, the Union was certified as the exclusive collective-bargaining representative of Respondent's prod- uction and maintenance employees. By letter dated July 27, the Union's organizer, Lee, requested Odell to meet for purposes of negotiating a contract. Receiving no reply, Lee telephoned Respondent's plant on July 31 and August 6, spoke to Odell's wife on both occasions, and was told by her that Odell was not available but that he would return Lee's calls. Lee did not hear from Odell. Prior to the certification, Respondent had been represent- ed by a management consultant, Richard Cord. Following the certification, Respondent replaced Cord with another consultant, Arthur K. Lovatt, Jr., who so notified Lee by letter dated August 10. Lee telephoned Lovatt and they met on August 14, at which time Lee submitted a proposed contract. Lovatt stated that he would communicate with Lee after consulting Odell. Not hearing from Lovatt for several days, Lee called him and they arranged to meet again on August 21. At their meeting on that date, Lovatt expressed the view that the contract was a fair one, but stated that Odell had indicated that he needed additional financing from the U. S. Rubber Co. in order to absorb the cost of the contract. Lovatt further stated that he would call Lee. Not hearing from him, Lee telephoned Lovatt on September 29, at which time the latter stated that he no longer represented Respondent. Thereafter, the Union assigned the matter to Ullman, its secretary-treasurer. On October 8, the original complaint herein was issued. In mid-October, Ullman received a call from Odell, who stated that he had had a problem reaching agreement with Lee and requested a meeting, which was held on November 4. At the meeting, Odell stated that he saw no problem with the proposed contract other than its cost, that he planned to ask U. S. Rubber Co. for a price increase, and that he would then communicate with Ullman. Since Odell did not call him as promised, Ullman called Odell on November 15, at which time Odell stated that he had received no answer from U. S. Rubber but would call Ullman in a few days. Again not hearing from Odell, Ullman telephoned Respondent on December 1, 14, and 29, spoke to Odell's wife each time, and was assured by her that Odell would return his calls. As of the date of the hearing on February 4, 1971, Odell had not returned Ullman's calls. Odell testified that he had not yet met with U. S. Rubber, but expected to see their representatives within a few days. I agree with the General Counsel's contention that the above-described conduct by Respondent failed to satisfy its obligation to bargain in good faith, thereby violating Section 8(a)(5) and (1) of the Act. Respondent did not retain either of its labor management representatives long enough to give them a reasonable opportunity to reach agreement with the Union. It dispensed with the services of Cord after the Union won the election and was certified, and it dispensed with the services of Lovatt after he met with Lee and expressed the view that the contract proposed by the latter was fair. Thereafter, Odell communicated with the Union only once to request a meeting. It is significant that this request was made shortly after the initial complaint herein was issued . So far as the record shows, the only position taken by Odell at his meeting with Ullman on November 4 was that he needed time to attempt to obtain a pnce increase from a large customer so that he could absorb the cost of the proposed union contract. But although Odell promised to communicate with Ullman, he did not do so despite a number of telephone calls by the latter. I find that such conduct, when viewed in the context of Respondent's opposition to unionization and its unfair labor practices found above, is indicative of an attempt to evade a contract with the Union through the use of dilatory tactics. But even if it were assumed that Respondent was not deliberately engaging in evasive tactics, it nevertheless fell short of discharging its statutory obligation to bargain. Odell's single meeting with Ullman obviously did not satisfy that obligation. Moreover, although the Union acquiesced in Respondent's request for time to discuss a price increase with its customer, Respondent could not expect an indefinite postponement of negotiations. If it failed to obtain an answer from its customer , it was under an obligation to notify the Union about the situation. Upon notification, the Union would have had an opportunity to request a meeting with Respondent for an exchange of ideas which might result in a contract. At such a meeting, the Union might have been able to demonstrate that the increased contract costs anticipated by Respondent could be offset by other savings. It might have persuaded Respondent to make a counterproposal . Or Respondent might have persuaded the Union to scale down its demands. In United States Cold Storage Corp., 96 NLRB 1108, the Board stated : "It is elementary that collective bargaining is most effectively carried out by personal meetings and conferences of parties at the bargaining table." And in American Federation of Television and Radio Artists, etc. v. N.L.R.B., 395 F.2d 622, 628 (C.A.D.C.), the Court stated: "It is indeed a fundamental tenet of the act that even parties who seem to be in implacable conflict may, by meeting and discussion , forge first small links and then strong bonds of agreement ." I find that Respondent's dilatory conduct, even if not intended as a device to evade a contract; violated Section 8(a)(5) and (1) of the Act. Respondent's sole defense is that there is no evidence that the Union dealt with an authorized agent of Respondent corporation or was "officially" refused recognition. As president and owner of Respondent, Odell was its agent, TRED-AIR OF CALIFORNIA, INC. 675 and his failure to bargain with the Union is attributable to Respondent. Normandy Square Food Basket, Inc., 163 NLRB 369, fn. 2. CONCLUSIONS OF LAW A. By interfering with, restraining, and coercing its employees, as found herein, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. B. By discharging Thomas E. Lopp because of his union activity, as found herein, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. C. By failing and refusing to bargain with the Union, as found herein, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. D. The aforesaid unfair labor practices affect com- merce within the meaning of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Affirmatively, I recommend that Respondent offer to Thomas E. Lopp immediate and full reinstatement to the position which he held at the time of his discharge or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, dismissing if necessary an employee hired subsequent to the date of such discharge. I further recommend that Respondent make Lopp whole for any loss of earnings suffered because of the discharge by paying to him a sum of money, with interest, equal to that which he would have been paid by Respondent from the date of his discharge to the date on which Respondent offers reinstatement as aforesaid, less his net earnings, if any, during said period. The loss of earnings under the order recommended shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. 1 also recommend that Respondent bargain in good faith with the Union as the certified representative of its employees. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 7 ORDER Respondent, Tred-Air of California, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating, threatening, or promising benefits to its employees. (b) Unlawfully discharging employees or otherwise unlawfully discriminating in regard to their hire, tenure of employment, or any term or condition of employment. (c) Unlawfully failing or refusing to bargain collectively with Teamsters Automotive Workers Local 495 as the certified representative of its employees. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of any right guaranteed in Section 7 of the Act. 2. Take the following affirmative action: (a) Offer to Thomas E. Lopp immediate and full reinstatement to his former or a substantially equivalent position, and make him whole for any loss of earnings he may have suffered by reason of Respondent's discrimina- tion against him, in the manner set forth in the section herein entitled "The Remedy." (b) Notify the above-named employee, if 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. (c) Preserve and make available to the Board or its agents on request, for examination and copying, all payroll records and reports, and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Recommended Order. (d) Upon request, bargain collectively with Teamsters Automotive Workers Local No. 495 as the certified representative of its employees and embody in a signed contract any understanding reached. (e) Post at its plant in Bellflower, California, copies of the attached notice marked "Appendix." 8 Copies of said notice on forms provided by the Regional Director for Region 21, after being signed by a representative of the Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 21, in writing, within 20 days from the receipt of this Decision what steps have been taken to comply herewith .9 7 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 8 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." 9 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read- "Notify the Regional Director for Region 21, in writing , within 20 days from the date of this Order, what steps have been taken to comply herewith " 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection; and To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT unlawfully discharge employees or otherwise discriminate against them because of their union activities. WE WILL NOT unlawfully question, threaten, or promise benefits to our employees. WE WILL OFFER to take back Thomas E. Lopp to his old job and pay him for all the wages he lost because of his discharge. WE WILL, upon request, bargain collectively with Teamsters Automotive Workers Local No. 495 as the certified representative of our employees. Dated By TRED-AIR OF CALIFORNIA, INC. (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone 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 matenal. Any questions concerning this Notice or compliance with its provisions, may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5254.