Banner Tire Co., Inc.

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