O'Reilly Enterprises

National Labor Relations Board - Board Decisions

Jul 14, 1994

314 N.L.R.B. 378 (N.L.R.B. 1994)

378
314 NLRB No. 68
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We find it unnecessary to pass on the judge’s finding that the
statement by Elizabeth O’Reilly, the Respondent’s president, to em-
ployee Annette Baibal that ‘‘without the Union . . . it would be
family again’’ constituted a violation of Sec. 8(a)(1), since such a
finding would be cumulative and does not affect the remedy.
2 The Union also proposed small increases in the Respondent’s
contributions to existing pension and annuity funds covering the em-
ployees, an additional holiday, and minor revisions in the vacation
package and in several other contract provisions.
O’Reilly Enterprises, Inc. and Local 917, Inter-
national Brotherhood of Teamsters, AFL–CIO.
Cases 29–CA–16631 and 29–CA–17169
July 14, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On November 15, 1993, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record in light of the
exceptions and briefs and has decided to adopt judge’s
rulings, findings,1 and conclusions as modified, and to
adopt the recommended Order of the administrative
law judge as modified herein.
The judge concluded that General Counsel had es-
tablished that the Respondent’s overall conduct indi-
cated that it wanted to frustrate a renewal agreement
with the Union and that it thereby failed to bargain in
good faith. We disagree.
The judge, in reaching his conclusion, in essence
found that the Respondent’s bargaining table conduct
was tainted by the fact that the Respondent’s proposals
at the bargaining table had to be cleared with Elizabeth
O’Reilly, the Respondent’s president who, prior to the
negotiations, had engaged in coercive acts which made
it clear to the unit employees that she wanted to get
rid of the Union. This, coupled with the Respondent’s
unlawful 15-cent-per-hour wage raise given to the em-
ployees in September 1992, led the judge to his con-
clusion that the Respondent’s overall conduct indicated
a desire to frustrate a renewal agreement with the
Union.
As the judge noted, in determining bad-faith bar-
gaining, the Board examines the totality of the employ-
er’s conduct, including conduct at and away from the
bargaining table. Optica Lee Borinquen, 307 NLRB
705, 717–721 (1992). In the instant case, the Respond-
ent’s conduct at the table seemed to indicate that the
Respondent was willing to compromise with the Union
in an effort to arrive at a collective-bargaining agree-
ment. At the first negotiating session, one of the
Union’s main proposals was that the 50-cent-per-hour
contribution, which the Respondent paid into the em-
ployees’ welfare fund, be given to the employees di-
rectly in the form of a raise.2 At the second session,
the Respondent presented its proposals. No progress
was made during the third session. However, at the
fourth and last session, the Respondent modified its
proposals and offered to give the employees the 50-
cent wage raise, spreading it through a 3-year period.
The Respondent also stated it would continue to nego-
tiate with the Union.
We do not agree with the judge’s conclusion that the
Respondent’s away from the bargaining table conduct
is sufficient to warrant a conclusion that the Respond-
ent’s efforts indicated a desire to frustrate agreement.
Thus, although O’Reilly’s coercive conduct, together
with Respondent’s pre-impasse implementation of pro-
posals are part of the totality of the Respondent’s con-
duct, they are not sufficient, when weighed against the
Respondent’s willingness to compromise at the bar-
gaining table, to warrant the conclusion that the Re-
spondent was seeking to avoid agreement. Accord-
ingly, we dismiss the allegation that the Respondent
failed to bargain in good faith for the renewal of the
contract.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
O’Reilly Enterprises Inc., Manhasset, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Delete paragraph 1(a) and renumber the following
paragraphs.
379O’REILLY ENTERPRISES
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT grant wage increases to our employ-
ees who are represented by the Union, without having
bargained in good faith thereon with the Union.
WE WILL NOT coercively interrogate any of our em-
ployees as to their support of the Union.
WE WILL NOT create the impression among any of
our employees that we are keeping under surveillance
their activities on behalf of the Union.
WE WILL NOT ask any of our employees to sign a
petition to be used by us to avoid bargaining with the
Union.
WE WILL NOT in any way promise benefits to our
employees to induce them to sign such a petition.
WE WILL NOT fail to make payments to the welfare
fund as required under our contract with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL bargain in good faith with the Union as
the exclusive representative of our drivers and mechan-
ics concerning wages, hours of work, and other terms
and conditions of their employment.
WE WILL make payments to the welfare fund as re-
quired and WE WILL make whole with interest any em-
ployee who suffered losses as a result of our failure to
make such payments.
O’REILLY ENTERPRISES, INC.
Kevin Kitchen, Esq. and Tracy Belifore, Esq., for the General
Counsel.
Gary C. Cooke, Esq. (Horowitz & Pollack, P.C.), of South
Orange, New Jersey, for O’Reilly Enterprises, Inc.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The con-
solidated complaint alleges that O’Reilly Enterprises, Inc.
(the Respondent) has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act). The Respondent is alleged to have
failed to make benefit fund payments required under its con-
tract with Local 917, International Brotherhood of Teamsters,
AFL–CIO (the Union) to have failed to bargain in good faith
with the Union in renewal contract negotiations, to have
given its employees a raise without bargaining thereon with
the Union, and to have independently coerced its employees
in the exercise of the rights guaranteed them by Section 7
of the Act. The answer filed by the Respondent puts those
allegations in issue.
The hearing was held in Brooklyn, New York, on June 22
and July 20 and 21, 1993. Upon the entire record, including
my observation of the demeanor of the witnesses, and after
consideration of the briefs filed by the General Counsel and
the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent is a New York corporation engaged in
providing school bus transportation services. In its operations
annually, it meets the Board’s standard for asserting jurisdic-
tion.
The pleadings establish that the Union is a labor organiza-
tion as defined in the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent and the Union had a collective-bargaining
agreement, effective September 1, 1988, to August 31, 1992,
which covered the drivers and mechanics employed by the
Respondent.
B. Alleged Coercion by the Respondent’s President
The General Counsel’s witnesses testified as to the fol-
lowing incidents of coercive conduct by the Respondent’s
president, Elizabeth O’Reilly. O’Reilly did not testify.
In May 1992, she told a driver, Annette Baibal, that
‘‘without the Union . . . it would be family again.’’ In Mid-
Mountain Foods, 291 NLRB 693, 695, 698 (1988), the
Board adopted, inter alia, a finding that the employer there
violated Section 8(a)(1) of the Act when its personnel direc-
tor told an employee that he would be okay if he ‘‘stayed
away from the wrong crowd,’’ referring to the union in-
volved in that case. O’Reilly’s remark in the instant case
similarly interferes with employees’ Section 7 rights as it
impliedly suggests that the employees would receive more
favorable treatment as family members if they abandoned the
Union.
On June 5, 1992, O’Reilly asked a driver, Charles Stein,
to sign a petition to enable the Respondent to sever its rela-
tions with the Union. When he hesitated, she told him that
she would take good care of him if he signed it. By solic-
iting his signature on such a petition, the Respondent has en-
gaged in an unfair labor practice as defined in Section
8(a)(1) of the Act. See American Linen Supply Co., 297
NLRB 137 (1989). By offering Stein unspecified benefits as
an inducement to him to sign the petition, the Respondent
has engaged in an unfair labor practice as defined in that
same section. See Western Health Clinics, 305 NLRB 400
(1991).
On June 11, 1992, O’Reilly told Stein that she understood
that he had been talking to other drivers about the petition.
He responded that he had urged them not to ‘‘drop away
from the Union.’’ O’Reilly’s remark to Stein created the im-
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pression that the Respondent had engaged in surveillance of
his activities in support of the Union. See Kenya Knitting
Mills U.S.A., 302 NLRB 545 (1991). In context, O’Reilly’s
remark also implicitly invited a response as to the extent of
Stein’s activities on behalf of the Union and thus constituted
coercive interrogation thereof. See Royal Midtown Chrysler
Plymouth, 296 NLRB 1039 (1989).
C. The Renewal Contract Negotiations; the Raise on
September 1 and the Discontinuance of Payments
to the Welfare Fund
In the summer of 1992, the Union met with the Respond-
ent to negotiate a contract to replace the one scheduled to
expire on August 31, 1992. There were four sessions con-
ducted between the Union’s president assisted by an em-
ployee committee and counsel for the Respondent. O’Reilly
did not attend.
Each of the sessions lasted about 15 minutes. At the first
session, held on June 17, 1992, the Union submitted its pro-
posals in writing. It sought small increases in the contribu-
tions by the Respondent to a pension fund and to an annuity
fund covering the unit employees. It also sought an addi-
tional holiday, minor revisions in the vacation package, and
in several other contract provisions. It offered to waive the
50-cent-per-hour welfare fund payments and sought to have
that money given to the employees as a raise; it stated that
the 50-cent-an-hour contribution was inadequate to maintain
the welfare fund. The attorneys representing the Respondent
told the Union that they would review those demands with
O’Reilly.
At the second session, the Respondent informed the Union
that it wanted a wage freeze for 2 years with provision for
wage-reopener talks in the third year. It rejected the Union’s
demands for increases in the amounts to be contributed to the
pension and annuity funds and it advised the Union that it
would keep for itself the 50-cent-an-hour contribution to the
welfare fund, instead of giving it as a wage raise to the unit
employees, as the Union had sought. The Respondent re-
jected the Union’s other proposals. The Union threatened to
call a strike and were informed that the Respondent does not
have the money to meet the Union’s demands. The Union
did not ask to examine the the Respondent’s books to verify
that claim. The session ended after several employee griev-
ances were discussed.
At the third session, no progress was made. Some griev-
ances were discussed.
At the last session, held on August 27, 1992, shortly be-
fore the expiration date of the contract, the Respondent of-
fered to spread a 50-cent-an-hour wage increase over a 3-
year period, in lieu of the 50-cent-an-hour welfare fund con-
tribution. The Union rejected the offer. The meeting ended
with the Respondent advising that it remains willing to meet
again for further negotiations. The Union, in a circular it dis-
tributed to unit employees that same day, stated that the Re-
spondent’s final proposal was a ‘‘complete disgrace.’’ The
Union authorized a strike to begin on September 8, a week
after the scheduled expiration of the contract.
On September 1, 1992, the Respondent gave each unit em-
ployee a 15-cent-an-hour raise. It also ceased contributing to
the welfare fund. The contract between the Respondent re-
quired these payments.
The Respondent effected those changes without notice to
the Union.
The Respondent contends that impasse was reached in ne-
gotiations on August 27 and that its grant of a 15-cent-an-
hour raise on September 1 was consistent with its offer, on
August 27, to spread a 50-cent-an-hour raise over 3 years in
lieu of welfare fund contributions. That contention overlooks
the fact that the Respondent’s counsel, on August 27, stated
that the Respondent was willing to meet again, thereby mak-
ing clear that there was no impasse. The Union’s threat to
conduct a strike a week later patently was aimed at its get-
ting a further concession. There was obviously no impasse
reached. The granting of a 15-cent-an-hour raise on Sep-
tember 1 was aimed at forestalling a strike. It was done with-
out prior notice to the Union. In the absence of impasse, the
unilateral grant of the 15-cent-an-hour raise on September 1
and the discontinuance of welfare fund payments were in
derogation of the Respondent’s obligation to bargain collec-
tively. See Days Hotel of Southfield, 306 NLRB 949, 956
(1992).
The complaint also alleges that the Respondent’s overall
conduct constituted bad-faith bargaining.
In Bradford Coca-Cola Bottling Co., 307 NLRB 647
(1992), the Board stated that the essential determination to
be made concerning a party’s alleged failure to bargain in
good faith is whether the party’s overall conduct indicates
that it was endeavoring to frustrate the possibility of reaching
an agreement.
The record in the present case discloses that the Respond-
ent’s president had, by coercive acts, made it clear to the unit
employees prior to the start of renewal contract negotiations,
that she wanted to be rid of the Union.
Sandwiched between those coercive acts by O’Reilly and
the unlawful unilateral grant of a 15-cent-an-hour raise on
September 1 were the four negotiating sessions. These ses-
sions were conducted, on behalf of the Respondent, by coun-
sel who advised the Union that they would clear all pro-
posals with O’Reilly, the very one who wanted the Union
out of her way. I thus find that the Respondent’s overall con-
duct indicated that it wanted to frustrate a renewal agreement
with the Union and that it thereby failed to bargain in good
faith with the Union.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
as defined in Section 8(a)(1) of the Act by having:
(a) Coercively interrogated employees as to their support
for the Union.
(b) Impliedly provided employees benefits to induce them
to withdraw their support of the Union.
(c) Solicited its employees to sign a petition to remove the
Union as their collective-bargaining representative.
(d) Created the impression among its employees that it has
kept their union activities under surveillance.
(e) Engaged in the conduct described in paragraph 4
below.
4. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act by having:
381O’REILLY ENTERPRISES
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 The contract requires the Respondent to pay 50 cents an hour for
each hour worked by the unit employees. The welfare fund had as-
sumed that all these employees work a 40-hour week. The record
indicates that they may not work a full week.
3 If 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.’’
(a) Granted its employees a wage raise without having bar-
gained collectively thereon with the Union, their exclusive
collective-bargaining representative.
(b) Failed to bargain in good faith with the Union for a
renewal contract.
On the above findings of fact and conclusions of law and
the entire record, I issue the following recommended1
ORDER
The Respondent, O’Reilly Enterprises, Inc., Manhasset,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with Local 917, Inter-
national Brotherhood of Teamsters, AFL–CIO (the Union).
(b) Granting a wage increase to its employees who are
represented by the Union, without having bargained in good
faith thereon with the Union.
(c) Coercively interrogating any of its employees as to
their support of the Union.
(d) Creating the impression among any of its employees
that it is keeping under surveillance their activities on behalf
of the Union.
(e) Asking any of its employees to sign a petition to be
used to avoid bargaining with the Union.
(f) Impliedly promising benefits to its employees to induce
them to sign such a petition.
(g) Failing to remit to the welfare fund payments as re-
quired under its contract with the Union.
(h) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain collectively with the Union as the
exclusive representative of its drivers and mechanics con-
cerning wages, hours of work, and other terms and condi-
tions of their employment.
(b) Remit payments to the welfare fund as required under
its contract with the Union2 in the manner set forth in
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979), and make whole its employees for any losses they
suffered as a result of its failure to make contractually re-
quired fund payments with interest thereon as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Manhasset, New York, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
of the date of this Order, what steps the Respondent has
taken to comply.