The Goodyear Tire & Rubber Co.

THE GOODYEAR TIRE & RUBBER COMPANY 73 The Goodyear Tire & Rubber Company and Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93. Case 20-CA-8945 March 25, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On July 11, 1974, Administrative Law Judge Her- man Corenman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a brief, and the General Counsel filed limited cross- exceptions to the Administrative Law Judge's Decision together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in the light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(1) of the Act on October 1, 1973, by threatening its employees with discharge if they continued their support of and mem- bership in the Union, and on October 15, 1973, by coercively interrogating its employees with regard to their union membership and support. We also agree that a bargaining impasse had then occurred, which justified Respondent's unilateral institution of its eco- nomic package, and that the impasse was broken by the Union's January 4, 1974, offer to meet and bargain with Respondent. We further agree that Respondent unlaw- fully withdrew recognition from the Union on and after January 24, 1974, thereby violating Section 8(a)(5) of the Act. We do not agree, however, with the Adminis- trative Law Judge's findings that on October 15, 1973, Respondent unlawfully withdrew recognition from the Union, unlawfully bypassed the Union and bargained individually with its employees, and also utilized the impasse to undermine the Union's status as bargaining representative and as a pretext to withdraw recognition from the Union. The record shows that Respondent is a successor to Bill Deane, Inc., with respect to Deane's San Jose and Cupertino, California, stores, that it did not assume Deane's collective-bargaining agreement with the Union, and that a bona fide impasse between Respond- ent and the' Union existed prior and subsequent to Oc- tober 1, 1973, when Respondent committed the afore- saiid 8(a)(1) violations. On October 1, 1973, Cupertino Store Manager Pyeatt engaged in a conversation with store employees Sonderman and Tyran wherein, ac- cording to Sonderman's credited testimony, Pyeatt in- formed them, inter aliq that Respondent thereafter "would no longer recognize the union's contract," and later, on October 15, 1973, after being told by his dis- trict office that Sonderman and Tyran would not be discharged because of their continued union support, Pyeatt further stated to those employees that "the terms of the contract would no longer be honored until [Respondent's dispute with the Union] was settled." Tyran's version of the conversation is that Pyeatt told them that thereafter, Respondent "no longer would recognize the union." The Administrative Law Judge failed to resolve this crucial conflicting testimony, and relied on Tyran's testimony only in finding that Re- spondent then withdrew recognition from the Union and so "advis[ed] [the] employees of that fact." In these circumstances, we cannot find that such a fact has been established. Nor can we find that Respondent's October 15, 1973, coercive interrogation of and unlawful threats to the employees to the effect that they could either "go with the union or stay with [Respondent]" shows that Re- spondent "bargain[ed] individually and coercively with the employees," or that that statement evidences Re- spondent's "bad faith in bypassing the union" in order to engage in such "bargaining." The statement in itself does not constitute individual bargaining in the com- monly accepted sense, despite its unlawful character. Respondent's unlawful solicitation of its employees' views, therefore, cannot be construed as a bypassing of the Union in favor of individual bargaining.) Accordingly, since there was no withdrawal of recognition on October 15, 1973, Respondent could not then have utilized the impasse action to undermine the Union's representative status or as a pretext to with- draw recognition from it. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, The Goodyear Tire & Rubber Company, San Jose and Cupertino, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from:, I While we do not condone Respondent's unlawful conduct, we note that, subsequent to August 23, 1973, and despite Respondent's repeated offers to bargain, the Union refused even to meet with Respondent until the Union's January 24, 1974, offer to do so, basically because of the Union's adamant, but erroneous, insistence from the time Respondent took over the store in July 1973 that Respondent was bound by its predecessor's bargaining agree- ment 217 NLRB No. 10 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Interrogating employees with respect to, and threatening to discharge them because of, their union support and membership. (b) Unlawfully refusing to recognize and bargain with the Union as the employees' exclusive representa- tive. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, as the exclusive representative of its employees and, if an understanding is reached, embody such under- standing in a signed written agreement. (b) Post at its facilities at San Jose and Cupertino, California, copies of the attached notice marked "Appendix. ,2 Copies of said notice, on forms pro- vided by the Regional Director for Region 20, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immedi- ately 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. (c) Notify, the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER FANNING, concurring and dissenting in part: I agree with the majority that the Respondent vi- olated Section 8(a)(5) and (1) of the Act by withdraw- ing recognition from the Union in January 1974. I would also find, in agreement with the Administra- tive Law Judge, that Respondent had previously with- drawn recognition in October 1973. Employees Sond- erman and Tyran testified that on October 1 and again on October 15 they had conversations with Pyeatt dur- ing which the latter threatened them with discharge if they insisted on having the Union in the shop. Tyran also testified that Pyeatt told him and Sonderman that Respondent had decided that it would no longer recog- nize the Union. The testimony of both employees was credited- and relied on by the Administrative Law Judge. In my opinion, there is no conflict between Ty- ran's testimony and that of Sonderman. 2 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " I would affirm the Administrative Law Judge's Deci- sion in its entirety. APPENDIX NOTICE To EMPLOYEES POSTED by ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportunity to present evidence and state their positions, an Ad- ministrative Law Judge of the National Labor Rela- tions Board has found that we have violated the Na- tional Labor Relations Act, and has ordered us to post this notice. WE WILL NOT interrogate employees in a manner violative of the provisions of Section 8(a)(1) of the Act concerning their union membership, support, interests, or sympathies. WE WILL NOT threaten to discharge employees if they remain loyal to the union and wish to be represented by the Union. WE WILL upon request bargain with Interna- tional Association of Machinists and-Aerospace Workers, AFL-CIO, District Lodge No. 93, as the collective-bargaining representative of the auto mechanics in our Cupertino and San Jose stores, with respect to wages, hours, and working conditions and, if agreement is reached, we will reduce it to writing and sign it. WE WILL NOT in any other like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, or any other labor organi- zation, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. THE GOODYEAR TIRE & RUBBER COMPANY DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Administrative Law Judge: Upon a charge filed on February 12, 1974, by International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, Dis- trict Lodge 93, herein called the Union, a complaint issued against The Goodyear Tire and Rubber Company, herein called Goodyear or the Respondent, on April 10, 1974, alleg- ing violations of Section 8(a)(1) and (5) of the National Labor THE GOODYEAR TIRE & RUBBER COMPANY 75 Relations Act, as amended, herein called the Act. Respon- dent's answer denied that it had engaged in the alleged unfair labor practices. This matter was tried before me at San Fran- cisco, California, on May 16, 1974. All parties appeared and were afforded full opportunity to introduce evidence and tes- timony and to-examine and cross -examine witnesses, to make oral argument on the record, and to file briefs. Upon the entire record in the case, and from my observa- tion of the witnesses and their demeanor, and upon careful consideration of briefs filed by the counsel for the General Counsel and by the Respondent , I make the following: FINDINGS -OF FACT I THE BUSINESS OF THE RESPONDENT The pleadings establish, and I find, that Respondent is an Ohio corporation engaged in the manufacture of rubber tires and other related products, and has been engaged in the retail sale of tires and other related products at various facilities located throughout the United States, including facilities at San Jose and Cupertino, California. During the past year, in the course and conduct of its business operations, Respon- dent received revenues in excess of $500,000 and purchased and received goods and supplies valued in excess of $50,000 directly from suppliers located outside the State of California for its facilities located within California. In the same period, Respondent's California facilities sold goods and services valued in excess of $50,000 directly to customers located outside the State of California. At all times material herein, Respondent has been an em- ployer engaged in commerce and in operations affecting com- merce within the meaning-of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Preliminary Statement The Union for a number of years has had a collective- bargaining agreement covering auto mechanics in a group of Goodyear stores owned and operated by Bill Deane, Inc. On May 5, 1973, Bill Deane, Inc., entered into an agreement to sell two stores, one at San Jose and the other at Cupertino located about 10 miles distant from the San Jose store, to the Respondent. while the sale was in escrow, Goodyear jointly operated the store with Deane.. T The sale was finalized on July 30, 1973, with the Respondent taking exclusive control and ownership of the two stores. On May 9, 1973, the Respondent notified the Union by letter of its interim operating agreement with Bill Deane, Inc., of the Cupertino and San Jose stores which would eventually result in the Respondent's complete ownership and control of the two stores . In this same letter, the Respondent notified the Union of its intention to continue to recognize the Union as the bargaining agent for the auto mechanics at these two stores and of its intention and desire to enter negotiations with the Union covering hours , wages, and working conditions. The May 9 letter promised the Union that it would advise it of the date that the two stores would be removed from escrow status and become the legal property of the Respondent. The purchase of the two stores was finalized on July 30, 1973. On that same date, the Re- spondent notified the Union by letter that the Respondent was now the legal owner of the two stores and that it was now "desirous of the opportunity to mutually establish with your union working conditions , hours, and wages for certain em- ployees at the above-mentioned locations." The Respondent closed the July 30 letter with a request that the Union "please advise this office as to your availability for a meeting on the above subject." It appears without dispute, and I find, that the Respondent continued in the same business operations at the two stores with the same work force and became the successor to Bill Deane, Inc., with the duty to bargain with the Union with respect to the auto mechanics employed at the two stores.` See N.L.R.B. v. -Burns International Security Ser- vices, 406 U.S. 272 (1972); Howard Johnson Co., 198 NLRB 763 (1972); Emerald Maintenance, Inc. v. N.L.R.B., 464 F.2d 698 (C.A. 5, 1972). During the escrow period from May 5 to July 30, 1973, the mechanics were paid at the wage rate specified in the Bill Deane collective-bargaining agreement and the contractual fringe benefits were paid to the Santa Clara County Automo- tive Trades Welfare Fund. After July 30, 1973, the Respond- ent continued to pay the contractual wage rate.2 Under date of August 8, 1973, the Union replied to the Respondent's letter of July 30, 1973, pointing out its position that the collective-bargaining agreement with Bill Deane, Inc., was binding on the Respondent as the successor to Bill Deane, Inc., pursuant to a "successor clause" in the agreement.3 Union Business Representative Clinton Miller, who wrote the August 8 letter, notified the Respondent that he would be pleased to meet with Mr. Kruse, the Respon- dent's assistant personnel manager, at his convenience to discuss the agreement . Mr. Miller emphasized however, that it was his position that "we do have an agreement." Kruse and Miller met on August 23, 1973, at the union office. Miller testified that he continued in his position that the Union's unexpired collective-bargaining agreement with Bill Deane, Inc., was binding on Goodyear . Kruse, however, contended that Goodyear was not bound by that agreement. Kruse told Miller that the wages exceeded the Cost of Living Council's guidelines. Kruse also told Miller that Goodyear 1 Howard W. Sonderman and Mike Tyran were the two auto mechanics employed at the Cupertino store and Mike Fox the lone auto mechanic employed at the San Jose store when the Respondent took exclusive owner- ship of these stores on July 30, 1973. Mike Tyran quit Goodyear in Decem- ber 1973. 2 There is a dispute concerning the payment of the fringe benefit amounts to the health and welfare trust fund. The store managers of the Cupertino and San Jose stores assert that they did not authorize or make any payments to the trust fund after July 30, but the trustees' business records show that the Cupertino store made payments to the trust fund for August , September, and October 1973 for the benefit of its mechanics. 3 Sec. 16(b) of the agreement between the Union and Bill Deane, Inc. provides as follows: "If this agreement is signed by members of a partner- ship, it shall apply to them and each of them individually in the event of a dissolution or termination of said partnership or in the event of a merger, consolidation or other legal change whatsoever with respect to any em- ployer, any obligations hereunder shall be binding on any assign , successor, legal representative or lessee of such employer." 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD couldn't live with the overtime provisions in the agreement providing for time and one-half and double time pay for Saturday work, and Kruse pointed out that the overtime provisions were not contained in other collective-bargaining agreements in the area. Miller testified that he proposed an alternative workweek from Tuesday through Saturday at a straight time rate of pay. Miller also testified that Kruse objected to the pending increase in the pension plan because it would far exceed the 5-1/2 percent cost-of-living allowance for the year. Miller testified that nothing else was discussed, and Kruse made no counterproposals. The meeting ended with the understanding between Kruse and Miller that Miller was to consult with the involved mechanics to "see if there was any change in their thinking and then respond." Miller concedes that he maintained the same position that fall and early winter, namely that Goodyear, as a successor, was bound by the Union's agreement with Bill Deane, Inc. Kruse testified that at the August 23 meeting, Miller took the position that Goodyear was bound by the Bill Deane, Inc., contract as successor. Kruse took the position that Goodyear was not bound by the Bill Deane contract and that it wished to negotiate the wages, hours, and working condi- tions of the mechanics. Kruse pointed out to Miller that the Union had a collective-bargaming agreement with Firestone Tire and Rubber Company with a lesser pay scale than the Bill Deane, Inc., contract. Kruse testified that Miller con- cluded the meeting by stating that he would review Good- year's position in regard to negotiating a new agreement with the involved people and would advise Goodyear as to the Union's position. On August 30, 1973, Miller directed a letter to Kruse as follows: Regarding our meeting of August 23, 1973, I am still convinced-that we have an agreement in full which is effective until October 15, 1974. When this agreement was signed with Bill Deane, which was during the Phase I period, all agreements negotiated between August 15, 1971 and November 15, 1971 were allowed to go into effect in their entirety. Reference is made to Section 16, Successor Clause, of this current agreement which makes it binding until the October 15, 1974 date. My position is that we do have a binding agreement without breaking any cost-of-living phases. Thanking you for your consideration, I remain Under date of,September 5, 1973, Kruse replied to Miller's August 30 letter, reiterating that Goodyear was willing to recognize the Union as bargaining agent for the auto mechan- ics, but maintaining that Goodyear was not bound by the Bill Deane, Inc., contract. Kruse closed the letter with a request that Miller advise him as to his availability for another nego- tiating meeting for the purpose of "establishing wages, hours, and working conditions" for the affected employees. Subsequent to the Union's receipt of the September 5 letter from Goodyear, it made no endeavor to meet again with Goodyear until January 1974. In the meanwhile, Goodyear, effective October 15, 1973, provided for the auto mechanics its so called "wage compliance and economic benefit pack- age" to replace the contractual wage and economic package. Goodyear did not first advise the Union of its action. The wage rate was not increased on October '15, as provided for in the Bill Deane, Inc., contract. Goodyear's "economic bene- fit package" involved a hospitalization program, a life insur- ance program, a pension program, short-term disability, long-term disability, sick leave, holiday, vacation, prescrip- tion drugs, and major medical. Kruse conceded that it did not advise the Union of Goodyear's action in effectuating its "wage compliance and economic benefit package," taking the position that there was no need to. B. Goodyear's Conduct in Connection with its Economic Package Howard Sonderman and Mike Tyran, the two auto me- chanics at the Cupertino, California, store testified in sub- stance and credibly that on about October 1, 1973, Store Manager Frank Pyeatt told them that beginning with Octo'. ber 16, 1973, Goodyear would no longer recognize the union contract. Sonderman credibly testified that Pyeatt told them that 'they had a decision to make whether they wanted to go with the Union or stay with Goodyear. Sonderman, with substantial corroboration from Tyran, credibly testified that they asked Pyeatt what would happen if they wanted to con- tinue to work for Goodyear, but also to have a Union in the shop, and that Pyeatt replied that the two of them would be fired. Pyeatt went on to tell them that it didn't really matter to him either way-whether there was a union in the shop or not-that he had just been relating to them what had been told him. The two were told by Pyeatt that he would have to know their decision-whether they were going to go with the Union or stay with Goodyear by October 16, 1973. Sonder- man and Tyran told Pyeatt that they would like to have some time to make their decision and they would let him know by October 15. Sonderman testified that on October 15, which was his day off, he made a special trip to the store so that he and Mike Tyran could give Pyeatt their decision together. Sonderman testified credibly, with substantial corroboration from Tyran that on this occasion, Frank Pyeatt asked him and Tyran "if we had made our decision-and we said that indeed we had; that we decided to stay with the Union. He then shook both of our hands and told us it had been a pleasure working with us-and we asked him if this meant that we were fired-and he said, no, that he felt that by our decision-we were quitting. We told him we were not quit- ting and that if he wanted us to leave, he'd have to fire us. He then assured us that this could be the case, but that he would have to call the district office to get authorization to do so." Sonderman credibly testified that Pyeatt then made a phone call and came back and said the district office could not give him an instant decision, but would let him know in a few minutes. In 20 to 30 minutes, Pyeatt returned from the office and told Sonderman and Tyran that the decision was that they could continue to work for Goodyear, but that the terms of the contract would no longer be honored.' ' Auto mechanic Tyran substantially corroborates Sonderman's tes- tmiony concerning Pyeatt's October 15 conduct Tyran adds that when Pyeatt called- Sonderman and him in near the end of September, he told THE GOODYEAR TIRE & RUBBER COMPANY Store Manager Pyeatt testified that having learned from Mr. Kruse of the new benefit program on Friday, October 19, 1973, when Kruse came, to his store with San Jose Store Manager Hansen, Pyeatt then met with auto mechanics Sonderman and Tyran in the evening of that same day and explained to them the new economic package that Goodyear was instituting effective October 15, 1973, to replace the wage and fringe benefits of the union contract.5 Pyeatt further testified that he-told Sonderman and Tyran that he was in- structed by the Company to go on a compliance basis, i.e., institute the Goodyear economic package to replace the eco- nomic terms of the union contract. Pyeatt told the employees that literature explaining the complete benefit package would be received from Mr. Kruse's office the following week. Pyeatt admitted he told the employees that they had a choice of going Goodyear or going Union. Pyeatt testified that at the Friday, October 19 meeting, the employees advised him they would like till the following Monday to make a decision which Pyeatt explained as follows: Basically that the Goodyear Tire and Rubber Com- pany could no longer negotiate with the Union and that they would have to decide whether they wanted to com- ply with the wages and hours that we had set forth with the Company benefits or to go with the Union. Taking into account all of Pyeatt's testimony as well as the testimony of Sonderman and Tyran to the contrary, I must discredit Pyeatt's conclusionary testimony in answer to gen- eral questions by Respondent's counsel that he never made a statement to anyone that the Goodyear store would no longer operate with a union; that he never made a statement to anyone that they should withdraw their membership in or support of the Union; and that he never made a statement to anyone that they would be discharged if they did not with- draw their membership in or support for the Union. I fully credit the testimony of Sonderman and Tyran con- cerning their conversations with Pyeatt which they place as having occurred on or about October I and 15 and which Pyeatt places as having occurred on October 19. It is clear that they are referring to the same conversations. I find that in the conversation between Pyeatt and Sonderman and Tyran on or about October 1, 1973, Pyeatt threatened to discharge Sonderman and Tyran if they chose to have a union in the shop: I find that this threat amounted to the coercion and restraint of employees in violation of Section 8(a)(1) of the Act. I also find that in the conversation which Sonderman and Tyran place on October 15, 1973, Pyeatt, by asking them if they made a decision to stay with the Union and by indicat- ing to them that their decision to remain with the Union was equivalent to a decision to be discharged or to quit their employment with Goodyear, thereby coercively interrogated then with respect to their union membership and support and threatened them with discharge for supporting the them that Goodyear had decided that it would no longer recognize the Union. 5 In granting the new fringe benefit package, Goodyear did not grant the 25-cents-per-hour wage increase which was effective October 15, 1973, under the terms of the union contract. Goodyear also discontinued paying overtime rate for Saturday work. With the institution of its own benefit package, Goodyear discontinued making payments to the trust fund speci- fied in the Union's contract with Bill Deane, Inc. 77 Union. I find that by such conduct the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. C. The Refusal to Bargain Although the Union took the adamant position till the end of 1973 that Goodyear was bound by the Bill Deane, Inc., contract, under the successorship clause,' nevertheless, on January 4, 1974, Union Business Representative Miller di- rected the following letter to the attention of Mr. Kruse, Goodyear's authorized representative. This letter is in regard to the collective bargaining agreement covering certain employees at your San Jose and Cupertino stores which come under the jurisdiction of District Lodge 93, I. A. M. & A. W. Contrary to what our attorney has advised us and because of the costs involved in pursuing this matter through the courts, we are willing to establish working conditions, hours and wages for the employees at these two stores. Please advise me as soon as possible as to your availa- bility for meeting on the above subject. Under date of January 24, 1974, Mr. Kruse directed a letter to Mr. Miller replying as follows: This letter is in response to your letter of January 4, 1974. At the time The Goodyear Tire & Rubber Com- pany entered into escrow with Bill Deane, Inc. for the purpose of becoming the rightful and legal owners of the business located at 490 South First Street, San Jose, California and 10980 Saratoga-Sunnyvale Road, Cuper- tino, California, it advised you that it would recognize your Union as the bargaining agent for certain em- ployees in the above-stated locations. Also, advice was again given at the close of the escrow period. The Company did enter into negotiations with your Union at that time for the purpose of establishing wages, hours and working conditions for certain employees in the above-stated locations. An impasse was reached in those negotiations. Since the impasse occurred, you have asked to negotiate wages, hours and working conditions for certain em- ployees in the above-stated locations. However, it now appears that you no longer represent a majority of our employees in either facility. It is conceded by Mr. Kruse that Goodyear unilaterally instituted changes in the wages, hours, and working condi- tions effective October 15, 1973. Kruse testified that having 6 Thus, the Union's attorney, W. Robert Morgan, by a letter dated Octo- ber 24, 1973, to Goodyear, pointed out his opinion that Goodyear was bound by the Bill Deane, Inc., contract by reason of the successor clause contained in that contract. And on December 10, 1973, Mr. Morgan dropped a note to Goodyear's law department at Akron, Ohio, with an enclosed copy of a California court decision which he hoped would convince Goodyear that they were bound by the union contract with Bill Deane, Inc. Goodyear made no reply to the December 10 letter and on January 14, 1974, Morgan requested a reply 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heard no response from the Union to his letter of September 5 expressing a willingness to negotiate, and faced with a pending 25-cents-per-hour wage increase effective October 15, 1973, under the Bill Deane, Inc., contract with the Union, he was faced with the position of either accepting all or part of that contract or establishing conditions of employment on his own. Accordingly, Kruse concedes he met with the store managers on Friday, October19, 1973, reviewed with them his decision, told the managers what the conditions of em- ployment would be, and instructed them to meet with the employees and explain the decision to them. In further expla- nation of his reason for unilaterally instituting the Goodyear economic package effective October 15, 1973, Kruse testified that he came to the conclusion that Goodyear had no obliga- tion to deal with the Union on October 15, 1973, when Good- year was faced with a decision of whether to follow the wage strictures of the existing agreement, or to establish Good- year's own conditions. Kruse explained further that the rea- son for this was that Goodyear had been completely unsuc- cessful in negotiating with the Union, and the Union had taken the adamant position that Goodyear had to accept the Deane contract. Kruse further conceded that Goodyear's "wage and com- pliance package" was a "unilateral change"-and Goodyear felt it no longer had any duty to deal with the Union because an impasse had been reached and he had information one employee had stated he did not wish to be represented by the Union.' Kruse testified that another reason for refusing to meet with the Union in addition to the reasons set forth in his January 24, 1974, letter to Union Representative Miller-namely impasse and lack of union majority-was that he had treated the Union's January 4, 1974, letter, stat- ing the Union's willingness to bargain, as a request for recog- nition, and he was waiting for the Union to file an election petition with the Board. - D. Analysis and Conclusionary Findings It is not disputed, and I find, that Goodyear is the succes- sor to Bill Deane, Inc., with respect to ownership and opera- tion of the Cupertino and San Jose stores. It is clear and undisputed that Goodyear as the successor to Bill Deane, Inc., notified the mechanics and the Union that pending negotiations, that wages and benefits would remain the same and that nothing would change. It is especially clear and undisputed that Goodyear, on May 9, 1973, shortly after it entered into the agreement to purchase the San Jose and Cupertino stores from Bill Deane, Inc., and again on July 30, 1973, when the sale to Goodyear was finalized, notified the I Kruse testified that in mid-September 1973, Mr Denny Jones, assistant district manager, retail, told him that one employee no longer wished to be represented by the Union. Kruse testified that he did not talk to the em- ployee in question Jones testified that in the month of September 1973, there was a need for a tire man or mechanic at the San Jose store Jones testified that he was in the San Jose store on September 6, 1973, and had a conversation with Mike Fox, the mechanic at the San Jose store, and inquired of Fox as to whether his brother was still available. Jones testified that he explained to Fox the fact that the store was not union, that it was "compliance" and would be covered by company benefits. Fox, according to Jones' testimony, stated "that he lust as soon that he had a company program " Union of its desire to-negotiate its own agreement with the Union to'replace the Bill Deane, Inc., agreement. I find that Goodyear was on sound legal ground in announcing its desire to negotiate an agreement to replace the Bill Deane, Inc., agreement with the Union. It is now well established that, absent an agreement by the successor to"assume a collective- bargaining agreement covering the affected employees, the successor is not bound by its predecessor's contract with the Union, but the successor must nevertheless recognize and bargain in good faith with the Union with respect to the wages, hours, and working conditions of the employees repre- sented by the Union. N.L R.B. v. Burns International Security Services, Inc., 406 U.S. 272 (1972); Anita Shops, Inc., d/b/a Arden's, 211 NLRB 501 (1974); Ranch-Way, Inc., 183 NLRB 1168 (1970); Spruce Up Corporation, 209 NLRB 194 (1974). Cf. Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, Hotel & Restaurant Employees & Bartend- ers International Union, AFL-CIO, 417 U.S. 249 (1974). It developed, however, and I find that, from the time that Good- year took exclusive ownership and control of the two stores to January 4, 1974, the Union took the adamant position that Goodyear was bound by the Bill Deane, Inc., agreement with . the Union covering the auto mechanics employed at the two stores it had purchased from Bill Deane, Inc. Consequently, I find that as a result of the Union's adamant position, a genuine impasse accrued justifying Goodyear's unilateral ac- tion in instituting its own economic package effective October 15, 1973, covering wages and fringe benefits at the two stores. In such a situation, the employer instituting such changes will not ordinarily be held in violation of Section 8(a)(5) of the Act. N.L.R.B. v. United Clay Mines, 219 F.2d 120 (C.A. 6, 1955); N.L.R.B. v. U.S. Sonics Corp., 312 F.2d 610 (C.A. 1, 1963); Almeida Bus Lines, Inc, 333 F.2d 729 (C.A. 1, 1964); N.L.R.B. v. Intracoastal Terminal, Inc. and Louisiana Proc- essing Company, Inc., 286 F.2d 954 (C.A. 5, 1961); Carnation Company, 192 NLRB 237, 239 (1971); Empire Terminal Warehouse Company, 151 NLRB 1359 (1965). However, coincident with the institution of such changes, Goodyear Store Manager Pyeatt approached unit employees directly and informed them that Goodyear would no longer recognize the Union and that the employees must make a decision as to whether to go with the Union or stay with Goodyear, and the employees were given to understand that any decision to go with the Union would result in their loss of employment. Mr. Pyeatt's conduct not only coerced and restrained em- ployees in their Section 7 rights as hereinabove found, but also evidenced Goodyear's bad faith in bypassing the Union to bargain individually and coercively with the employees. While impasse may suspend the duty to bargain, it is not carte blanche for an employer to attempt to undermine a union's status as bargaining representative and thus insure that there will be no resumption of bargaining. It is well established that the duty to bargain embraces the negative duty not to deal with the employees, especially where the dealings with the employees are calculated to undermine the collective-bar- gaining representative. See, e.g., Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678 (1944). While the impasse created by the Union's adamant insistence from July 1973 to January 1974 that the Bill Deane contract was binding on Goodyear justified Goodyear's unilateral institution of its economic wage and fringe benefit package, it did not justify Goodyear's THE GOODYEAR TIRE & RUBBER COMPANY 79 withdrawal of recognition from the Union as collective-bar- gaining representative in October 1973 as was done by Good- year in this case.' Goodyear's withdrawal of recognition was again clearly manifested in Kruse's January 24, 1974, letter to Union Representative Miller, which closed with these words: "However, it now appears that you no longer represent a majority of our employees in either facility." In view of Pyeatt's coercive and -restraining conduct vis-a-vis employees Sonderman and Tyran in October 1973, hereina- bove described, which was calculated to cause their with- drawal from membership and support for the Union, Good- year's conclusion that the Union no longer represented a majority of its employees was -obviously in bad faith. More- over, the record establishes without dispute that all three employees in the unit, namely Sonderman, Tyran, and Fox were at all times during their employment by Goodyear mem- bers in the Union. Additionally, employee Michael Fox's remark to Supervisor Jones, as testified by Jones, that he liked Goodyear's fringe benefit package better than the Union's, reportedly made to Supervisor Jones in September 1973 by Fox, hardly justifies the conclusion that Fox had withdrawn his membership in, or support for, the Union.' In sum, I find that Goodyear utilized the impasse as a means to with- draw recognition from the Union, and to attempt to under- mine the Union as the collective-bargaining representative. While an impasse may justify an employer's unilateral change in economic benefits, it does not justify coercive direct dealing with the employees to compel their alienation from the union, nor does it justify withdrawal of recognition from the union as was the case here. N.L.R.B. v. E. L. Dell, Jr., Trading as WaycrossMachineShop, 283 F.2d 733 (C.A. 5, 1960); Sharon Hats, Inc., supra; Kit Manufacturing Company, Inc, 138 NLRB 1290 (1962). 1 find, therefore, that by withdrawing recognition from the Union on and after October 15, 1973, and by refusing to meet, deal, and bargain with the Union on and after January 24, 1974, Goodyear has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent found to constitute unfair labor practices as set forth in section III, above, occurring in connection with the operations of the Respondent described 8 See, e.g., Boeing Airplane Company, etc, 80 NLRB 447, 454, Sharon Hats, Inc., 127 NLRB 947, 956 (1960). 9 But in any event when this remark was reportedly made to Jones in September 1973, there were three mechanics in the unit, two in the Cuper- tino store, and one in the San Jose store in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain col- lectively in good faith with the Union as the exclusive repre- sentative of its employees in an appropriate unit, I will recom- mend that, upon request, the Respondent bargain collectively with the Union concerning rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, reduce it to writing and sign it. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAw 1. Respondent, The Goodyear Tire & Rubber Company, is an employer engaged in commerce within the meaning of Seciton 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their feelings and support for the Union and by threatening their discharge if continued their union membership or loyalty, the Respond- ent coerced and restrained employees in the exercise of their rights set forth in Section 7 of the Act; and the Respondent thereby engaged in unfair labor-practices within the meaning of Section 8(a)(1) of The Act. 4. The auto mechanics employed in the Respondent's Cupertino and San Jose stores constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 5. By withdrawing recognition from the Union on or about October 15, 1973, as collective-bargaining representative and advising employees of that fact, and by refusing to meet and bargain with the Union at all times after January 24, 1974, with respect to the wages, hours, and working conditions of its auto mechanics in the Cupertino and San Jose Goodyear stores, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and 8(a)(1) of the Act. [Recommended Order omitted from publication]