Seiler Tank Truck Service

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 1090 (N.L.R.B. 1992)

1090
307 NLRB No. 169
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 363 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We adopt the judge’s finding that the Respondent violated Sec.
8(a)(5) by withdrawing recognition from the Union. Member
Raudabaugh agrees with the judge’s conclusion that the withdrawal
of recognition was unlawful because: (1) the March 1989 decertifica-
tion petition was tainted; (2) the Respondent continued to bargain
with the Union for 1 year after the petition was filed; and (3) the
Respondent asserted its doubt of the Union’s continued majority sta-
tus in the context of the Respondent’s other unfair labor practices.
Member Devaney also agrees with the judge that the withdrawal of
recognition violates Sec. 8(a)(5) but finds it unnecessary to pass on
the judge’s finding that the March 1989 petition was tainted by the
Respondent’s alleged assistance regarding that petition. Member
Oviatt agrees that the withdrawal of recognition was unlawful but
relies solely on the fact that the Respondent’s good-faith doubt of
the Union’s majority support was based on the March 1989 decerti-
fication petition which the Respondent had tainted.
In the absence of exceptions, we adopt the judge’s finding that the
Respondent did not violate Sec. 8(a)(5) and (1) by instituting a new
pension and profit-sharing plan in October 1989.
In sec. I,C,2, par. 7, of his decision, the judge states that, under
contract-bar rules, the Union would have blocked the processing of
the 1989 decertification petition by executing an agreement with the
Respondent. If, however, the decertification petition were reinstated,
after the resolution of these proceedings, a contract entered into after
its March 22, 1989 filing would not bar the processing of the peti-
tion. City Markets, 273 NLRB 469 (1984).
3 Even if there were no 8(a)(3) violation as to Spradlin and Myers,
they would be entitled to a make-whole remedy by reason of the
Seiler Tank Truck Service, Inc., a Subsidiary of
Elkin Company and International Union, Unit-
ed Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–
CIO, and its Local 1176. Cases 7–CA–29101, 7–
CA–29765, 7–CA–30161, and 7–CA–30161(2)
June 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On June 7, 1991, Administrative Law Judge Walter
H. Maloney issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions and to adopt the recommended Order.
We agree with the judge that the Respondent vio-
lated Section 8(a)(3) and (1) by increasing the amount
of shop work it assigned to drivers Chris Myers and
Willie Spradlin after the 1987–1988 strike, thereby re-
ducing their regular driving hours. In so doing, we find
that the General Counsel established a prima facie case
under Wright Line that the discriminatees’ union mem-
bership and activities were motivating factors in the
Respondent’s assigning them increased shop work.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983). Thus,
Myers and Spradlin were active union adherents and
their support was well known to the Respondent; they
were the only employees to stay out for the entire
strike. Further, they were not reinstated by the Re-
spondent until 10 months after the strike. The rein-
statement was part of a settlement of unfair labor prac-
tice charges against it. The Respondent also knew that
Myers and Spradlin were two of only three drivers
who did not sign the 1989 decertification petition, and
that the Union designated the discriminatees as its
committeemen in August 1989.
Not only was the discriminatees’ union adherence
well known, but the Respondent also exhibited strong
animus against the Union. General Manager
Hammontree testified that the strike was a bitter and
destructive one. Hammontree candidly admitted that he
harbored hard feelings against the Union and always
would.
Finally, as found by the judge, the Respondent had
assigned driving work by seniority prior to the strike.
After the strike, however, when Myers and Spradlin
were its most senior drivers, the Respondent discon-
tinued its use of seniority and assigned Myers and
Spradlin more minimum-wage shop work than they
had performed before the strike. Indeed, the Respond-
ent assigned more shop work to them than to several
junior drivers. The effect of assigning Myers and
Spradlin more shop work was to decrease their driving
work.
Considered in toto, we find that the foregoing evi-
dence establishes a prima facie case that Myers’ and
Spradlin’s union affiliation or activities were moti-
vating factors in the Respondent’s assigning them
more shop work. We further find that the Respondent
failed to rebut this prima facie case by demonstrating
that Myers and Spradlin would have received the same
shop work assignments regardless of their union affili-
ation or activities. Despite the records available to it,
the Respondent proffered no documentary evidence to
rebut testimony establishing that seniority had been
followed before the strike. Nor did the Respondent
demonstrate that Spradlin and Myers received com-
parable shop work assignments prior to their reinstate-
ment. Accordingly, we agree with the judge that the
Respondent violated the Act by assigning Myers and
Spradlin more shop work after the strike, thereby re-
ducing the driving hours assigned to them with a con-
sequent reduction in pay.3
1091SEILER TANK TRUCK SERVICE
8(a)(5) violation which we have found. That is, the unilateral change
from a practice of assigning driving work by seniority was unlawful
under Sec. 8(a)(5) and that change affected these two employees.
1 The principal docket entries in this case are as follows:
Charge filed by International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America (UAW),
AFL–CIO, and its Local 1176 (the Union) against the Respondent
in Case 7–CA–29101, on March 29, 1989; complaint issued against
the Respondent by the Regional Director for Region 7 in Case 7–
CA–29101 on May 5, 1989; Respondent’s answer filed on May 17,
1989; charge filed by the Union against the Respondent in Case 7–
CA–29765 on October 10, 1989; consolidated complaint in both
cases issued by the Regional Director for Region 7 against the Re-
spondent on December 1, 1989; Respondent’s answer filed on De-
cember 21, 1989; charge filed by the Union against Respondent in
Case 7–CA–30161 on January 26, 1990, and amended charge filed
on February 8, 1990; charge filed by the Union against Respondent
in Case 7–CA–30161(2) on March 19, 1990; second consolidated
complaint issued against the Respondent by the Regional Director
for Region 7, on March 30, 1990; amended charge filed by the
Union against Respondent in Case 7–CA–30161(2) on April 2, 1990;
amended answer to second consolidated complaint filed by the Re-
spondent on April 11, 1990; third amended complaint issued against
the Respondent by the Director, Region 7, on May 31, 1990; Re-
spondent’s answer filed on June 6, 1990; hearing held in Jackson,
Michigan, on January 29–31, 1991; briefs filed with me by the Gen-
eral Counsel, the Charging Party, and the Respondent on or before
April 19, 1991.
2 Respondent admits, and I find, that it is a Michigan corporation
which is engaged at Albion, Michigan, and elsewhere in the hauling
of hazardous and nonhazardous liquid industrial waste and related
materials. During calendar year 1989, in the course and conduct of
its business it performed services valued in excess of $500,000, of
which amount services valued in excess of $50,000 were performed
for various enterprises located in States other than the State of
Michigan. Accordingly, the Respondent is an employer engaged in
commerce within the meaning of Sec. 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of Sec. 2(5)
of the Act.
3 Certain errors in the transcript are noted and corrected.
4 The Respondent also has a similar operation at Clare, Michigan,
about 100 miles away, but the two operations are not interchange-
able and the Clare facility is not involved in this dispute.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Seiler Tank Truck Service,
Inc., a subsidiary of Elkin Company, Albion, Michi-
gan, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
A. Bradley Howell, Esq. and James Rowader, Jr., Esq., for
the General Counsel.
Donald J. Cairns, Esq. and Laurie A. Petersen, Esq., of Mil-
waukee, Wisconsin, for the Respondent.
Judith A. Sale, Esq., of Southfield, Michigan, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me based on a consolidated
unfair labor practice complaint,1 issued by the Regional Di-
rector for Region 7 and amended at the hearing, which al-
leges that Respondent Seiler Tank Truck Service, Inc.2 vio-
lated Section 8(a)(1), (3), and (5) of the Act. More particu-
larly, the consolidated complaint alleges that the Respondent
discriminated against returning strikers Chris Myers and
Willie Spradlin in the assignment of work because of their
union activities, unilaterally made changes in working condi-
tions and benefits such as health insurance, bonuses, drug
testing, and profit sharing, and refused to provide the Union
with requested information relating to its health insurance
program. The consolidated complaint also alleges that the
Respondent’s bargaining representatives violated their duty to
bargain in good faith by failing to submit a tentative agree-
ment concluded with the Union to its board of directors for
approval. The Respondent denies these allegations and as-
serts further that it has a good-faith doubt that the Union still
represents a majority of the employees in the bargaining unit
so it is no longer obligated to bargain with it. On these con-
tentions the issues were drawn.3
FINDINGS OF FACT
I. BACKGROUND
A. The Unfair Labor Practices Alleged
At its Albion, Michigan facility the Respondent operates
a fleet of trucks of various sizes which haul crude oil and
hot oil to refineries from oil wells in and about Albion. Re-
spondent also hauls brine and other contaminated water pro-
duced in the course of oil drilling either to approved
dumpsites or, during summer months, to dirt and gravel
roads in the area where the water is sprayed on road beds
for purposes of dust control.4 Since 1979, the Respondent
corporation has been owned by eight stockholders—all broth-
ers and sisters who belong to the Meinerz family. It is man-
aged from Brookfield, Wisconsin, by the Elkin Company, a
partnership composed of the same eight individuals. The
Elkin Company also manages several Meinerz family hold-
ings in various industries which are located in several dif-
ferent States. Management control of the Elkin partnership,
and hence of the Respondent corporation, is vested in a man-
agement committee of six individuals who live in or about
Milwaukee and its suburbs. The membership of this com-
mittee rotates from time to time among the members of the
Meinerz family and their spouses. It is the Elkin management
committee that is frequently referred to in the record and in
this decision as the directors or the board of directors of the
Respondent. William Hammontree, a former driver for the
Respondent, is the general manager of the Albion facility. He
reports to the management committee in Wisconsin and spe-
cifically to management committee member Tim Meinerz.
On April 29, 1985, as a result of a Board election, the
Charging Party was certified as the bargaining representative
of about 12 to 15 truckdrivers and mechanics who work out
of the Respondent’s Albion terminal. After many months of
fruitless bargaining a strike occurred on November 17, 1987.
It ended when the Union made an unconditional offer to re-
turn to work on January 11, 1988. During the strike, two
drivers, Ed Jarosz and Ron Huzarik, crossed the picket line
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 After the consolidated complaint was issued in this case, Spradlin
was discharged but his discharge has never become part of any un-
fair labor practice proceeding and it is not part of this one.
6 This reference was not only to Seiler employees but employees
of other enterprises controlled by Elkin who were part of its health
insurance program.
and went back to work. After the strike ended, only two
drivers, discriminatees Chris Myers and Willie Spradlin,5 ac-
tually returned. The others found employment elsewhere.
During the strike the Respondent maintained its operation by
hiring replacements, most of whom continued to work after
the strike ended, although, through attrition, many are no
longer employed.
When the Respondent refused to reinstate Myers and
Spradlin, an unfair labor practice charge was filed on their
behalf as well as on behalf of other strikers (Case 7–CA–
27829, et al.). This case was settled at a hearing which took
place on November 30, 1988. As a result of the settlement,
Myers and Spradlin, as well as other strikers, were placed on
a preferential rehire list and were awarded various amounts
of backpay. The Company also agreed to resume bargaining.
Myers returned to work on December 5, 1988, and Spradlin
returned on December 19, 1988. Bargaining sessions were
held on January 13 and February 7, 1989. The General
Counsel did not move to set aside the agreement on account
of noncompliance so it remains undisturbed.
Most but not all of the relevant events in this aging case
took place in 1989 following the settlement of the earlier
Board case. The various alleged violations present separate
strands of fact which have to be individually examined but
ultimately tied into a single fabric.
Regarding the bargaining, the parties had already come to
a tentative understanding as to a profit-sharing proposal be-
fore any face-to-face negotiations resumed. Just after the
Board settlement was concluded, Respondent’s general cor-
porate attorney, Robert Sharkey, wrote a letter, dated Decem-
ber 16, 1988, to Union Attorney Judith Sale informing her
that the Company wished to adopt a profit-sharing plan. He
expressed the Company’s desire that, for tax purposes, the
plan be adopted before December 31, 1988, and sent her a
copy of a proposed trust indenture which was 42 pages in
length. He asked the Union to waive the necessity of negoti-
ating the terms of the plan since there would not be enough
time to complete such negotiations and allow the Company
to submit a plan to the Internal Revenue Service before the
end of the year. He offered to leave the general question of
retirement and pension benefits open for further negotiations
should the Union wish to negotiate different pension and re-
tirement benefits. Sale responded by letter, dated December
21, 1988, stating that union negotiators would be prepared to
recommend to its membership the acceptance of an entire
contract consisting of the proposed pension plan which had
just been forwarded to her and the Company’s prestrike Au-
gust 20, 1987 contract proposal, with five stated revisions.
There was no immediate response to this counterproposal.
Formal bargaining resumed on January 13, 1989, in the
Battle Creek law office of Attorney Robert Sharkey, who had
represented the Respondent in prestrike negotiations. At this
meeting the Respondent had a bargaining committee which
also consisted of Jack Sherman, vice president of Elkin, Tim
Meinerz, Frank Verito, a member of the Elkin management
committee, and Hammontree. The Union was represented by
International Representative Gary Klein, Sale, an employee
committeeman, and the president of Local 1176. After an ex-
change of somewhat acrimonious remarks, the parties began
to go over the text of the Company’s August 20, 1987 con-
tract proposal. They all read it together line by line and para-
graph by paragraph to determine if anyone still had any dis-
agreement with the text. For the most part, the parties agreed
on both the concept and the language of the August 1987,
proposal but there were some specific exceptions. Whenever
they reached a clause or paragraph which presented a dis-
agreement, they simply noted the disagreement and pro-
ceeded to the rest of the proposal. The two areas which pre-
sented problems were checkoff and health insurance. As to
other items, company representatives agreed to insert a provi-
sion protecting the handicapped in the nondiscrimination
clause and the Union agreed to delete certain verbiage in the
general purposes clause.
By the end of the January 13 meeting the parties had com-
pleted a review of the entire August 20, 1987 proposal which
had served as the matrix for their discussions. The health in-
surance issue was again raised and the Union asked the
Company to put together a proposal on this subject. The
Union also stated that it would review the Company’s
insistance that there be no checking off of dues. As it was
getting late in the evening, Sherman told union representa-
tives that they needed more time to prepare a health insur-
ance proposal. Klein said that he would not give the Com-
pany a reply on the subject of checkoff until it had received
a health insurance proposal. Klein then asked company rep-
resentatives whether there were any outstanding disagree-
ments other than on the checkoff and health insurance ques-
tions and was assured that there were none. Sale suggested
that all parties initial the portions of the written proposal on
which there was agreement, but Meinerz refused, saying that
he would only sign a final agreement. Klein then repeated
his earlier question as to whether there was a tentative agree-
ment on all subjects other than checkoff and health insur-
ance. He was again assured that there was agreement except
on those items. However, Meinerz added that any final
agreement would have to be taken to the board of directors
for approval.
On January 18, Sherman wrote Klein a letter in which he
stated:
Enclosed is the information you requested on our in-
surance program that covers our employees at Seiler
Tank Truck Service, Inc.
The premium increase of 25% in 1988 was totally
absorbed by Seiler with no increase in cost to the em-
ployees.
Per our discussion at our January 13th meeting, we
will consider any recommendations you have that might
reduce or minimize future increases in the cost of our
insurance. On January 1st, 1988 this program covered
168 employees in six different operations and locations.
The breakdown consists of 66 single coverage and 102
family coverage.6
He attached a copy of the existing plan to the letter.
On January 30, Sale wrote Sharkey a letter in which she
stated, in part:
1093SEILER TANK TRUCK SERVICE
7 Among the evidence on this point is Meinerz’ testimony that, at
the time of the February 7 meeting, there were only two open items,
health insurance language and checkoff. Moreover, in a letter to
Sale, infra, dated March 27, Sharkey, in discussing the no-strike/no-
lockout provision, makes no reference to any negotiations on the
point at the two sessions which took place in his office in January
and February. He restricts his justification for inserting this article
in the contract to prestrike discussions reported to him by Verito.
We urge you to have the Company’s proposal on
health insurance prepared and available for discussion
at the [forthcoming February 7] meeting, if not before.
We also urge you to secure authority for the people at
the bargaining table to enter into an agreement at that
meeting. There is no dispute between the company and
the union as to all matters in the contract that we dis-
cussed apart from dues checkoff and insurance. We
should be able to signify our tentative agreement as to
all of these other items while the insurance and dues
check-off matters are being resolved.
At the February 7 meeting, the parties began negotiations
by discussing health insurance. Meinerz asked Klein if he
had obtained any insurance quotes from other insurance com-
panies. Klein replied that he had sent copies of the Respond-
ent’s level of health insurance benefits to two or three com-
panies and they were going to provide him with premium
quotes but none had done so as yet. Klein then asked the
Company if it had any specific proposal on that topic. They
replied that they did not, whereupon Klein proposed that arti-
cle 12, as it appeared in the old August 1987 proposal, be
adopted. Company negotiators recessed briefly and returned
with a statement that the Company wanted to reserve the
right either to revise present level of health insurance bene-
fits, if it felt it necessary in the light of changed insurance
costs, or to pass along a premium increase to employees.
Sale wrote out a proposed clause along that line on a piece
of paper and handed it to company negotiators. They re-
turned with another handwritten proposal, whereupon the
Union made a third proposal. Company negotiators said they
liked the Union’s counterproposal, but needed time to recast
it into language which would conform to their program.
However, they voiced agreement with the concept contained
in the handwritten documents and agreed to mail the Union
a copy of their own proposed health insurance language.
Klein insisted that he would not agree on the issue of dues
checkoff until he saw the copy of the Company’s insurance
language.
As the meeting broke up, Klein again asked if the parties
had an agreement provided that the health insurance and
checkoff problems were resolved. Meinerz and Verito ac-
knowledged that, if those problems were resolved, there was
a complete agreement, but Meinerz reiterated that he would
have to take the agreement to the Elkin board of directors
or management committee for final approval. Klein then stat-
ed that he felt that there was a tentative agreement which he
would recommend to his membership. The draft proposal
from which the parties were working contained nothing
about a no-strike/no-lockout agreement nor did its appendix
set forth any classification or wage rate for a category of em-
ployee known as a crude oil driver. I credit union witnesses
that neither of these questions was mentioned during either
meeting in January and February.7
On February 15, Sharkey mailed to Sale a copy of the lan-
guage of a management proposal on health insurance to be
used as article 12 of the contract. He asked for a union re-
sponse. He also faxed the document to her at the same time.
On February 20, Sale replied to Sharkey by letter, stating
that the Union accepted the proposed article 12 language and
withdrew its demand for checkoff. In her letter she also stat-
ed:
With these two agreements, all outstanding matters
are resolved. Accordingly, Mr. Meinerz may proceed
with the preparation of the entire contract, as he offered
to do at our last meeting. You said that you believed
that could be done in the next few days. As soon as
we receive the document we will review it. Assuming
that it is consistent with our agreements, we will
present it for ratification by the membership at once.
Before Sale wrote the letter of February 20 letter, she and
Sharkey had also come to these conclusions during a tele-
phone conversation. While these matters were under discus-
sion by company and union representatives, a decertification
petition was being signed by employees at the Albion facility
with full knowledge on the part of Hammontree.
On February 22, a management committee meeting took
place at the Elkin office in Brookfield, Wisconsin, a suburb
of Milwaukee. At this time contract negotiations at the
Albion facility were discussed. Tim Meinerz, a member of
the management committee, testified that they recommended
to the committee that the contract which had been agreed on
with union negotiators be adopted. There were some dissents.
Scott Meinerz wanted the provision of the nondiscrimination
clause relating to handicapped employees stricken because he
felt it might cause some trouble with the Department of
Transportation. Tim Meinerz voiced the opinion that he did
not feel that there would be any problem in getting the
Union to agree with this change. Another board member
wanted to insert a no-strike/no-lockout provision. The board
then agreed to adopt the contract with those two changes.
Later on, Hammontree, who was not at the meeting, received
the proposal and noted that there was no provision in its ap-
pendix for a job classification and wage rate pertaining to a
new classification of driver—crude oil hauler—that had been
utilized since the previous summer after the Respondent
bought out another company and took over customers for
whom the Respondent was employing crude oil haulers. Al-
though nothing was said at the February 22 board meeting
on this subject, Hammontree asked his superiors to include
in their contract draft an item containing this classification
together with the Respondent’s existing pay rate.
In mid-March, a 19-page contract proposal, generated from
the computer at the Respondent’s Brookfield office, was pre-
pared and sent to Sharkey in Battle Creek for transmission
to the Union. The draft which was transmitted had the three
changes requested by members of the management com-
mittee and Hammontree. Despite the fact that several com-
pany representatives had reviewed it before transmission, it
also omitted the text of the pension plan to which the parties
had already agreed in December or any reference to the plan.
By letter, dated March 17, Sharkey transmitted the pro-
posal to Sale with a cover letter, which read:
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Sharkey was aware of the petition on March 15 before it was
docketed at the Regional Office. On that date, he wrote the Regional
Director a letter which read, in pertinent part:
The Employer has recently become aware and has reasonable
grounds to believe that the employees no longer wish to be rep-
resented by the United Auto Workers. In fact, we understand
that the majority of the employees have petitioned the NLRB re-
questing that an election be conducted.
In the interest of fairness to the employees and the Company,
we request that such an election be conducted.
On March 30, the Regional Director dismissed the decertification
petition because of the pendency of the blocking charge in this case.
This is the draft contract that we have revised and
we will present to the Board of Directors of Seiler Tank
Truck Service, Inc. If there are any changes, please get
back to us by the first part of next week.
The letter and revised proposal evoked an angry response
on the part of Sale. She tried to phone Sharkey to speak with
him about the changes but he was not available and did not
return her calls. In a letter, dated March 22, 1989, she noted
that the draft contained three changes which were not agreed
to during collective bargaining. She stated:
The first of these [the omission of handicap language
in the nondiscrimination clause] may have been an
oversight. The last two [insertion of a no-strike/no-lock-
out provision and the crude oil hauler classification] ob-
viously were intentionally added despite the fact that
they were never proposed at the bargaining table and,
accordingly, were never discussed by the parties. The
document which was to have been prepared by you for
our review was to have been merely an incorporation
of the changes in the contract to which we agreed. It
was not to have been a document which contained new
provisions. Unless you remove this new material, i.e.
Article VI ‘‘No Strikes or Lockouts’’ and the ‘‘Crude
Oil Hauling’’ classification in Appendix A, and add
‘‘handicap to Article II,’’ we will have no choice but
to pursue our remedies before the National Labor Rela-
tions Board.
Frankly, I am outraged that you could have unilater-
ally made such significant changes in the document.
Your doing so signals your intention not to enter into
a collective bargaining agreement with the UAW. I will
wait until Monday, March 27, for your response to this
request to make the contract document conform with
our agreement. If I do not hear from you by that time
we will file unfair labor practice charges.
On this same date, Calbert England, a driver at the Albion
operation, filed a decertification petition in Case 7–RD–2350.
The petition was dated March 15 but was not docketed until
the March 22.8 In a reply letter to Sale dated March 27,
Sharkey said:
Thank you for pointing out the inadvertent omission
of the ‘‘handicap’’ matter in Article II of the proposed
contract. I’ll make certain the proper language is in-
serted in the proposed contract.
The matter involving no strike/no lockout is one that
Mr. Verito advises me has been discussed with the
Union in the past. The employees were very upset and
claimed they had been locked out while the employer
. . . asserted the position that the strike was ongoing.
As a result we had a rather extensive and expensive
NLRB administrative proceeding. To prevent that type
of harm to the employees and the employer we have
proposed that a no strike/no lockout agreement be in-
cluded in any contract. If you review the matter you
will see that there is a provision for an expedited arbi-
tration process to quickly resolve any disputed matters.
The new classification you mentioned of ‘‘Crude Oil
Hauling’’ is one that has been around for months. By
the Appendix we are simply attempting to state what
presently exists. During the time the UAW has been
representing the employees additional lines of business
have been developed by the company and additional
employees added. This was information which was
made known to you and the members of Local 1176
some time ago.
Since I was not able to discuss this matter by tele-
phone with you by the deadline you imposed, I have
taken the liberty of dictating this letter and having it
telefaxed to your office. Hopefully we will be able to
discuss the matter soon.
Turning to other matters, the employer presently has
reasonable cause to believe that Local 1176 of the
UAW does not represent the majority of its employees
within the certified class. We have been contacted by
the National Labor Relations Board indicating that the
employees have petitioned to decertify the Union. We
believe the employees should be permitted to choose
whether they will continue to be represented by the
UAW and will so indicate to the National Labor Rela-
tions Board.
The next communication between the parties was the unfair
labor practice charge which the Union filed in this case on
March 29.
Sharkey wrote Sale on March 31, saying that the omission
of the language relating to handicap discrimination was a
clerical error and expressed the opinion that he did not think
the other two changes were significant. He said he would
give her a call to see if they could resolve the matter infor-
mally. It should be noted that the Union made no mention
of the omission of the pension plan from the Respondent’s
contract proposal. At the hearing, Klein testified that their
failure to do so was an oversight on the Union’s part. It had
simply not noticed that this provision was missing from the
document.
On April 4, after receiving the charge filed by the Union,
the Respondent held another management committee meeting
in Brookfield. The committee voted to delete from its con-
tract proposal the earlier changes which the Union found ob-
jectionable. It inserted these revisions in the data bank in its
word processor. A new contract proposal embodying these
deletions (and the addition of ‘‘handicap’’) was prepared and
sent to Sharkey for transmission to the Union. On April 13,
Sharkey sent the revised contract to Sale and followed it up
with a letter, dated April 19, which read:
On April 13, 1989, we sent you by fax transmission
and by regular mail a revised contract. We would ap-
preciate the benefit of your client’s position at your ear-
liest convenience.
1095SEILER TANK TRUCK SERVICE
9 England no longer works for the Respondent. He was hired after
the strike ended as a driver. In June 1989, shortly after the second
decertification petition was filed, he was promoted to a supervisory
position known as pusher. He quit in June 1990.
10 Since there was no contract, there could be no bar and this mat-
ter was irrelevant.
As I indicated earlier, Seiler Tank Truck Service,
Inc., would like to resolve these matters without the
need for further protracted litigation.
Please contact me at your earliest convenience.
Sale never responded to this letter. Although the parties had
communications with each other from time to time in the
months to come, the matter of the contract was never again
discussed, either orally or in writing, in any meaningful way.
The revised proposal transmitted in April again omitted any
reference to the agreed-upon pension plan. The Company ex-
plained at the hearing that this omission—its second—was
again an oversight and insisted that it has never receded from
its position of including this matter in a final agreement.
Klein testified that the Union never responded to this pro-
posal because it felt that, by omitting any mention of the
pension plan from the proposal for the second time, the Re-
spondent was evidencing the fact that it really did not want
to conclude a collective-bargaining agreement.
While the first Board case was still pending and before the
settlement took place on November 30, 1988, a decertifica-
tion effort was taking place at the Respondent’s plant under
the general direction of driver Calbert England.9 England’s
testimony is somewhat confused about which events in the
decertification effort took place during the first petition filing
and which took place during the second one. The first peti-
tion was filed in the fall of 1988. England obtained from a
friend who worked in a foundry the number of the Board of-
fice in Detroit, phoned the office, and spoke with a Board
agent. The Board agent sent him RD petition forms and sug-
gested language which should appear on a petition to be cir-
culated among employees together with a showing of interest
necessary to support an RD petition. According to England,
the Board agent told him that he had to have seven copies
of the signatures. He also suggested that England check to
see when an open period might exist under the contract bar
rules.10
In order to fill out the Board form, England had to get
some information from Hammontree. Specifically, he needed
to know the identity of the current collective-bargaining
agent in order to complete an item found on the form. When
this discussion took place, Hammontree asked for a copy of
the signatures which would be collected. England furnished
him the list after they were collected. England filled out the
petition in his own handwriting but obtained the services of
the company secretary (known in the record only as Mary
Jo) to type out the sheet which was circulated for employee
signatures. He dictated to her the language which appeared
at the top of the sheet. Mary Jo obtained Hammontree’s per-
mission before providing this clerical assistance.
Signatures were collected by laying the supporting petition
form on a table in the driver’s room next to the office so
that drivers could sign before or after they went out on runs.
The decertification question was regularly and repeatedly dis-
cussed among the drivers and England asked some drivers to
sign. When he collected a sufficient number on the sheet, he
had a copy xeroxed for Hammontree, attached the list to the
Board petition form, and sent it in to the Regional Office.
The RD petition filed in the fall of 1988 was dismissed be-
cause of the pendency of the charge in the earlier Board
case.
In February 1989, while negotiations were in progress in
pursuance of the settlement agreement of the first Board
case, England revived the decertification effort. Hammontree
admits that he was aware of this effort, asked for a copy of
the completed signature page, and received it from England.
Again signatures were collected from drivers by leaving the
petition page on the table in the drivers room so that they
could sign before or after going out on runs. The petition
form was left on the table for nearly a week. Anyone passing
the table could look at the form and determine who had
signed and who had not done so. A total of 11 employees
out of an estimated 14-man bargaining unit signed. All the
dates of the signatures were either February 20 or 22, 1989.
For reasons unexplained in the record, the petition and the
accompanying showing of interest were not filed with the
Board until March 22, 1989. On receipt of the charges in this
case, the petition was dismissed because the petition was
blocked.
As noted previously, Myers went back to work on Decem-
ber 5, 1988, and Spradlin returned on December 19. In terms
of tenure, both men ranked far above all the other drivers,
with the exception of two who had returned during the strike,
because the remaining employees in the bargaining unit had
been hired either during or after the strike. Spradlin had first
come to work for the Respondent in May 1984, and Myers
started in November 1979.
Spradlin did not haul crude oil. He drove a transport truck
that hauled waste water from wellsites either to approved dis-
posals or to county roads for dust spraying during summer
months. He was a union member and went on strike when
the strike began on November 17, 1987. He was discharged
on February 10, 1990. Myers hauled both oil and water. For
the most part he drove a straight one-piece unit which could
transport 55 barrels. On occasion he drove a tractor trailer
but this was an exceptional situation. He also went out on
strike at its inception and stayed out untill the Union called
it off. On August 4, 1989, about 8 months after Spradlin and
Myers had returned to work following the settlement agree-
ment, the Union notified the Respondent that both men had
been appointed union committeemen. In the period of time
at issue in this case, they were the only employees on the
Respondent’s payroll who had absented themselves from em-
ployment during the entire period of the strike.
From the Respondent’s point of view, the strike was a bit-
ter and distructive one. In his testimony, Hammontree
claimed that strikers tried to torch company trucks, pulled re-
placement drivers out of trucks, threatened the families of re-
placement drivers, broke car windows, tore out the radio
tower of the Company’s intercom system, spied on replace-
ment drivers, flattened tires of company trucks, broke win-
dows on trucks, and caused the Company to lose customers
to the point where it was on the verge of bankruptcy. He did
not allege, nor did any other company witnesses, that either
Myers or Spradlin had personally engaged in such activity.
However, Hammontree admitted on the stand that he still
harbored hard feelings toward the Union and always would.
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 When a driver is assigned shop work at the minimum wage, he
has the option of accepting it or punching out and going home.
Sometimes Spradlin took the latter option, since he often felt it was
not worth his while to work for $3.35 an hour. Respondent’s drivers
can also be assigned to runs on which they can ‘‘make time,’’ i.e.,
get paid for hours in excess of those actually worked. The Respond-
ent has certain contracts with customers who call for the perform-
ance of specified tasks in a stated period of time. Billing is handled
on the basis of the number of hours the contract calls for. If a driver
assigned to these premium runs can finish the job in fewer hours
than the contract calls for, he is still entitled to full compensation
based on the contract time.
Respondent’s drivers report each morning at 7:30 a.m. and
are dispatched from the Albion facility based on requests
from oil producers which have been received the previous
evening or early the same morning. In many instances, the
Respondent has ongoing orders for drivers and equipment
that extend beyond a single call. One of the functions of its
pushers is to go out in the field and solicit business each day
after they have finished dispatching drivers. The Respondent
operates on an on-call basis and may receive requests for
trucks and drivers at any time of the day or night. If a driver
is in the field on another call and becomes available, he may
be dispatched by radio. It is not unusual for a driver to be
summoned from home, either in the evening or on a week-
end, to respond to a customer’s call. Because the Respondent
must have drivers available for emergency calls, it permits
drivers who have not been dispatched in the morning to re-
main at the terminal doing other work. They may be per-
forming routine maintenance or cleaning on their trucks or
they may only be assigned to make-work projects, such as
sweeping up the garage. When on call, a driver receives
whatever pay rate is assigned to the work in question, wheth-
er it be water hauling, hot oil work, or crude oil hauling.
When working in the shop on what are essentially make-
work projects, he receives only the minimum wage which, in
every instance, is far less than one half the rate for any driv-
ing assignment.
Spradlin testified credibly that before the strike he was
regularly dispatched as a driver and that when work was
slow seniority among drivers controlled assignments.11 He
complained that when he returned to work after the strike he
was last to be dispatched. He testified, and the Respondent
agreed, that after the strike when he was second in seniority
there were no assignments based on seniority. It was the Re-
spondent’s contention that it never observed seniority in
making daily assignments. Respondent’s witnesses said that
it was often difficult to assign work to Spradlin because he
did no oil hauling and was limited in his capabilities to haul-
ing water and also because, in one or two instances, cus-
tomers had complained about Spradlin and had insisted that
the Company refrain from sending him to their jobsites.
Myers had a wider reportoire than Spradlin. He was the
senior driver in the facility. He testified credibly that, before
the strike, he generally had his own area and was assigned
to make deliveries or to haul oil in that area everyday. He
was among the first to be assigned and, if there was not
enough work on a particular day in his area, he would be
sent to another one. He corroborated Spradlin’s statement
that, before the strike, the Company observed seniority in
making assignments. He also testified that there was only
one pay class at that time and that any variations in rates
paid to drivers were based on seniority, not upon the type
of commodities they hauled.
During the strike, the Respondent acquired four multiaxle
trucks of a type which they never had before. Myers com-
plained that he has never been assigned to drive one or to
train to drive one. He also testified that, after the strike, he
often did not receive an assignment until midday and would
be receiving minimum wage for shop time until being dis-
patched. He complained that, after the strike, he was as-
signed to more scut work—cleaning up oil spills, cleaning
out truck tanks, and ‘‘pulling bottoms,’’ i.e., removing water
and sludge from crude oil tanks.
Based on the voluminous pay and assignment records
which were placed in the record, both the General Counsel
and the Respondent submitted statistical charts showing the
comparative hours worked by Myers and Spradlin vis-a-vis
other drivers. The General Counsel limited his chart to those
drivers who performed comparable tasks to the ones per-
formed by the two discriminatees. Respondent’s chart, pre-
pared on a weekly basis for 1989, shows that in comparing
both total hours and chargeable hours worked by Myers and
Spradlin against those worked by other drivers, the names of
the two discriminatees fell at various rankings for each week
throughout the year. Some weeks Myers or Spradlin would
rank high among the total driver complement in hours
worked and in other weeks one or both would be in the mid-
dle or at the bottom. The tables were prepared on the basis
of hours worked, not income derived.
The chart prepared by the General Counsel compared the
two discriminatees against five other employees—Neil Eng-
land, Klemanski, Obenour, Ratliff, and Wolfe—who drove
similar runs. It was broken down by calendar quarters. It
showed that, of these seven employees (including Myers and
Spradlin), the two discriminatees had a lower average num-
ber of hours worked per week in 1989 than any of the others
did. Neil England had the highest average hours worked
—64 per week. Of the five drivers on the chart who are not
parties to this case, the lowest average weekly number of
hours worked was 63. However, Spradlin averaged only 51
hours a week and Myers averaged just under 58.
The General Counsel also introduced a chart which fo-
cused on shop pay, the gravamen of the complaints by
Spradlin and Myers. Their income from shop pay in 1989,
computed at the minimum wage, was markedly higher than
that of any other employee—$490 for Spradlin and $480 for
Myers—as compared with $380 for the next highest recipi-
ent. From these statistics I conclude that Spradlin and Myers
had markedly more shop hours assigned to them than any of
the other employees in the bargaining unit during the first
year of their reemployment following the settlement agree-
ment.
Despite the fact that Sharkey had questioned the Union’s
status in his letter to the Regional Director and again to Sale,
the Respondent continued to communicate with the Union
from time to time. As Sharkey put it in his testimony:
Things were going back and forth. We were in the
strange predicament of trying to negotiate people on the
one hand [sic] but not knowing whether or not they
really represented their people on the other, and this
non-representation issue had been going on for a long
time.
1097SEILER TANK TRUCK SERVICE
As he put it, ‘‘we were engaged in a little fence straddling.’’
Even as late as January of the following year, the Respond-
ent was willing to meet with the Union because, as Sharkey
testified, ‘‘things may well have worked out.’’
In August 1989, the Respondent treated its employees to
a steak fry which took place in the garage at the Albion fa-
cility. When Myers arrived at the party, Hammontree called
him over, thanked him for doing a good job, and handed him
an envelope containing two $50 bills. Other employees also
received cash payments at the party, ranging from $20 to
$100. These sums were reported as income to the Internal
Revenue Service on the W-2 forms of each employee. In
previous years, the Respondent has given cash bonuses to
employees at Christmas parties but it has never done so on
any other occasion. There is no contention that the Union
was notified in advance of the distribution of this bonus or
that it was given an opportunity to bargain about it.
In the late fall of 1989, the Respondent instituted a sub-
stance abuse program for all of its employee drivers and con-
tract drivers. The program was designed by an organization
known as Bridgeway Center, Inc., which made an hour-long
presentation at an employee meeting on November 30, 1980.
The Respondent distributed to its employees a document en-
titled ‘‘Substance Abuse Policy Manual’’ which outlined the
provisions of its plan in question-and-answer form. The plan
took effect December 1, 1989. It stated in pertinent part:
(a) No driver shall be on duty if the driver uses any
controlled substances.
(b) No driver shall be on duty if he tests positive for
use of a controlled substance.
(c) Any person who tests positive for use of a con-
trolled substance is medically unfit to operate a com-
mercial vehicle.
(d) Any person’s refusal to be tested for use of a
controlled substance is deemed a positive test.
The new policy manual provision stated that a driver could
exempt himself from the provisions of the policy if he could
demonstrate that he was taking drugs pursuant to a prescrip-
tion of a doctor.
The new policy then went on to outline a program of pre-
employment drug testing, testing of a driver when there was
reasonable cause to believe that he might be using drugs, a
mandatory drug test for all drivers at their next regular med-
ical examinations, and random testing thereafter. The policy
statement went on to say that the Company had established
an employee assistance program which was essentially a
booklet concerning the effect and consequences of controlled
dangerous substances. The notice informed employees that
this information could be found in a booklet which was
being made available in the office. However, the Company
announced that it did not have a rehabilitation program and
any driver who either tested positive or refused to take a
drug test could be terminated immediately.
As in the case of the August bonus, there is no contention
that the Union was notified in advance of the establishment
of this program nor was it offered an opportunity to bargain
concerning its provisions. The Respondent insists that the
program was being instituted at that time as a result of regu-
lations imposed on it by the U.S. Department of Transpor-
tation and submitted a copy of those regulations as an appen-
dix to its brief.
Until June 30, 1989, the Respondent offered its employees
a comprehensive health and dental insurance plan through the
Lincoln National Life Insurance Corporation of Ft. Wayne,
Indiana. This plan covered not only the Respondent’s em-
ployees but many other individuals employed by various
Elkin subsidiaries. Two basic changes occurred in health in-
surance coverage on that date. The dental portion of the Lin-
coln National plan was removed and coverage was changed
to another carrier, EBC. There is no contention in the brief
of the General Counsel or the Charging Party that this
change in dental insurance carriers resulted in a change in
benefits, although this allegation was made in the third con-
solidated complaint. With respect to accidental injury bene-
fits, the former Lincoln National plan provided full coverage.
The new plan provided that accidental injuries of less than
$300 would be covered only on an 80–20-percent basis, with
the employee picking up 20 percent of the bill.
On August 4, 1989, Klein wrote to Hammontree asking for
an updated copy of the Company’s health, life, and dental in-
surance policies. His letter was referred to Meinerz, who re-
plied on September 26, as follows:
Enclosed herewith are booklets explaining our health
and dental plans.
We are awaiting new health booklets from Lincoln
National which should be available within the next 30
days. The changes reflected in these booklets would be:
(1) dental coverage is now being handled through EBC
(coverage is exactly the same as what we offered
through Lincoln National) and (2) the $300 full pay ac-
cident benefit is now handled as any other claim. Ev-
erything else within the plan remains the same.
I am sorry for the delay in providing the health
booklets. I will forward you a copy as soon as they be-
come available.
The information contained in Meinerz’ September 26 letter
was the first notification which Klein had received of any
change in insurance carriers or benefits.
There was no bargaining on either of these topics. When
the issue of coinsurance arose in this trial, the Respondent
stated that, upon noticing the change in its new accident ben-
efit coverage, it researched its claims for accidential injuries
under $300 and found that there had been none. Accordingly,
it decided to coinsure this amount and pay the 20-percent
employer share of any claim which might be filed under this
amount. However, it did not notify the Union of its decision
until the time of the trial and admitted that there have been
no minor accident claims since the onset of the new policy
which had required such payments. On November 2, 1989,
Meinerz forwarded to Klein a copy of the new Lincoln Na-
tional health plan booklet that he had received on October
31, 1989. Klein’s response was a letter, dated November 6,
contending that any changes in employee insurance benefits
would be viewed by the Union as a violation of the law.
Hammontree testified that, in August 1989, an employee
named Ed Rose told him that the Respondent’s drivers were
interested in having a profit-sharing plan. He added that, if
the Company did not begin to offer such a plan, he would
quit. In fact, he did quit. In October 1989, the Respondent
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
implemented a pension/profit-sharing plan which the Re-
spondent asserts, without contradiction, is the same plan
which the parties agreed upon in December 1988.
Sometime late in 1989 or early in 1990, the Respondent
retained the assistance of labor counsel to assist it in the de-
fense of the pending unfair labor practice complaint. How-
ever, it continued to employ Sharkey as well. On November
16, 1989, Sale wrote Sharkey, suggesting that the parties re-
turn to the bargaining table and attempt to resolve ‘‘their
many differences.’’ She informed him that the UAW was
prepared to meet as soon as possible. Two months later, on
January 19, 1990, Sharkey replied:
In follow-up to your recent letters suggesting a meet-
ing between labor and management we ask that you
specify several dates in the near future when UAW rep-
resentatives would be available to meet with manage-
ment representatives. As you know, the holiday time is
always difficult for planning meetings when manage-
ment’s representatives are located from Wisconsin to
Florida. However, we look forward to the opportunity
to meet now.
. . . .
P.S. Please note that by this letter management does
not waive any position it has taken concerning its obli-
gation or duty to meet with and negotiate with rep-
resentatives of the UAW.
To this letter, Sale responded on February 6 that union rep-
resentatives would be available any time after February 23.
Early in February 1990, Willie Spradlin was fired after a
sharp verbal exchange with Hammontree. On February 12,
1990, Klein wrote the following letter to Hammontree:
It has been brought to my attention that there was a
verbal altercation between you and Willie Spradlin on
Friday or Saturday.
I am requesting that you inform me in writing of any
action you took against Mr. Spradlin. This is to include
his current status, his entire employment record (includ-
ing disciplinary record), and a detailed explanation of
the Company’s position of the above incident.
The reply to Klein’s letter was supplied by Respondent’s
labor counsel, Donald J. Cairns on March 16, 1990. It read:
Seiler Tank Truck Service, Inc., will not provide you
with the requested information. Moreover, the Company
will not provide the United Automobile, Aerospace,
Agricultural Implement Workers of America (UAW)
with any other information nor will it recognize and
bargain with the UAW over wages, hours, and condi-
tions of employment covering Seiler Tank Truck Serv-
ice employees at Albion, Michigan. Whatever ‘‘major-
ity status’’ may have existed prior to 1989, it is clear
that as of February 20, 1989, and continuing to present
date, the UAW has not enjoyed support among a major-
ity of the unit employees.
B. Analysis and Conclusions
General background
Before addressing the specifics of the third consolidated
complaint which was issued by the General Counsel, it
would be well to advert to an overarching inconsistency in
the Respondent’s position which affects its defense to all the
allegations levelled against it. Throughout the relationship
with the Union which was litigated in this proceeding, the
Respondent took the position, on the one hand, that it had
satisfied its duty to bargain with the Union, as required in
the settlement it entered into in the initial Board case in
1988, and that it continued in good faith to bargain until
March 1990 when, for the first time, it categorically refused
to bargain by refusing a demand for information relating to
the February 1990, discharge of Spradlin.
On the other hand, the Respondent told both the Board
and the Union, as early as March and April 1989, that it en-
tertained a good-faith doubt as to the Union’s continued ma-
jority status. It reiterated this position on several subsequent
occasions. Their asserted doubt was occasioned, in principal
part, by a collection of employee signatures in support of a
decertification petition filed with the Board on March 22,
1989. In one statement in this record the Respondent asserted
that it began to harbor its doubt of the Union’s majority sta-
tus as early as February 22, 1989, when it was furnished
with a copy of the signatures which accompanied the form
that England filed with the Board. Sharkey, the Respondent’s
attorney, called the Respondent’s position ‘‘fence strad-
dling,’’ admitting that the Respondent still continued to deal
with the Union for nearly a year after coming to the conclu-
sion that the Union no longer represented its drivers and me-
chanics at Albion. It did so because it felt that something
worth while still might come from continued negotiations. In
other words, the Respondent was willing to put aside its
doubts on the representation question if it could get a con-
tract to its liking with a minority union.
‘‘Fence straddling’’ is the one position the Respondent
was not entitled to take. Bolton-Emerson, Inc., 293 NLRB
1124 (1989), enfd. 899 F.2d 104 (1st Cir. 1990). An em-
ployer may negotiate a collective-bargaining agreement only
with the majority representative of its employees. If it comes
to the conclusion that a bargaining representative with whom
it is dealing no longer represents its employees, it must break
off those negotiations and let the processes of the Board de-
termine if its assessment is correct. When an employer con-
tinues to carry water on both shoulders, negotiating at times
and acting at other times as if there were no union in the
shop, it undermines any assertion of good faith on two
fronts. Its bargaining effort becomes tainted and so does its
refusal to bargain.
While the Respondent was assertedly attempting to work
out a contract at the bargaining table to comply with the set-
tlement agreement in the previous Board case, it was also ac-
tively assisting an effort, undertaken by employees who had
been hired during or after the strike, to get rid of the Union
entirely. While the initial spark for these decertification ef-
forts came from driver and later Supervisor Calbert England,
that spark was fanned into a lambent flame by Hammontree
1099SEILER TANK TRUCK SERVICE
on two different occasions. Company clerical personnel and
facilities were made available by Hammontree for the typing
of petitions which were needed to accompany the filing of
the decertification forms. Hammontree asked England during
both signature campaigns for copies of the petitions after
they were signed. The collection of signatures lasted, in each
instance, for a number of days, as blank sheets were placed
in the open in the driver’s room next to the company office
where the identities of signers (and nonsigners) could be eas-
ily ascertained by anyone passing through the area. While the
General Counsel did not allege the sponsorship of decerti-
fication petitions as separate violations of the Act, such spon-
sorship was readily demonstrated in the record and is further
indication of the lack of good faith with which the Respond-
ent went about performing its duty to bargain.
Lastly, the specific allegations in the third consolidated
complaint must be viewed against a background of the in-
tense antiunion animus on the part of an employer who had
emerged, bloody but unbowed, from a bitter 2-month strike.
Hammontree minced no words when he testified that the
strike was seriously damaging to the Company and that he
would never forget the physical and economic depradations
that he felt the Union was responsible for causing. He was
the Respondent’s principal supervisor, so his attitude and
outlook are significant, if not controlling, background factors
in evaluating the several violations, both of Section 8(a)(3)
and (5), which the General Counsel has alleged.
II. THE REFUSAL OF THE RESPONDENT TO BARGAIN
IN GOOD FAITH
The Respondent is charged with making several unilateral
changes in working conditions, none of which is dependent
upon specific proof of subjective bad faith, as well as a flat
refusal to recognize the Union any further when it declined
to furnish Klein with information regarding Spradlin’s dis-
charge. It is also charged with refusing to submit a tentative
agreement arrived at through negotiations to the Respond-
ent’s board of directors for final approval. For these viola-
tions the General Counsel requests a remedy directing the
Respondent’s negotiators to submit their agreement with the
Union to the directors for their approval and to recommend
that it be approved. The General Counsel specifically dis-
claimed any intention of pursuing a theory which would re-
quire the Respondent to execute the collective-bargaining
agreement negotiated with the Union at the two final ses-
sions which took place in January and February 1989.
In addressing the last-recited allegation first, it should be
noted that all parties seem to agree that the Respondent’s ne-
gotiators had arrived at only a conditional or tentative agree-
ment at the bargaining table and that they had informed the
Union that any final agreement was dependent on approval
by the Elkin management committee or board of directors
which met periodically at Elkin headquarters in Wisconsin.
Some but not all of the members at the Elkin management
committee were also members of the Respondent’s bar-
gaining team.
If the agreement hammered out during negotiations was
only a tentative one, then either party had the right to reject
it after presentation to its principal. Certainly, if the agree-
ment were rejected by the union membership when it was
presented by union representatives, no unfair labor practice
would have occurred, provided negotiators on the other side
were apprised in advance of this internal requirement. The
General Counsel and the Charging Party seem to believe that
the tentative agreement was never presented to the board of
directors and that company negotiators should be forced to
present it. The record simply does not bear out this conten-
tion. The terms and conditions of the agreement were in fact
presented to the directors and, in some particulars, were re-
jected.
Certain counterproposals along the lines of a no-strike/no-
lockout clause and the deletion of ‘‘handicap’’ as a basis for
a contractual claim of discrimination were made, as was
Hammontree’s later request for insertion of a job classifica-
tion and pay rate for crude oil haulers. The Company had
every right to go back to the Union with these requested
modifications. It is understandable that the Union may have
felt that it had been ‘‘sandbagged’’ by these counter-
proposals, inasmuch as it had already withdrawn its proposal
for checkoff on receipt of company language on health insur-
ance. However, Meinerz’ reservation of the right to submit
the entire package to the Elkin board of directors for final
approval preserved the Company’s position in this regard.
Notwithstanding these obstacles, the parties to this pro-
ceeding did in fact reach a final and complete understanding
with respect to a contract. Following the filing of the unfair
labor practice charge, the Respondent prepared yet another
written proposal which deleted the provisions to which Sale
had objected. Sharkey forwarded this draft to her on April
4. With the sole exception of the pension and profit-sharing
clause, this document constituted the complete agreement
which had been reached by the parties. See Cowles Pub-
lishing Co., 280 NLRB 903 (1986).
The Respondent claims that the omission of the pension
and profit-sharing section from its April 4 submission to the
Union was again an oversight. This explanation is highly
suspect. It can acquire credence only in light of the fact that
the Union also failed to note the omission of this provision
from the earlier draft and did not bring the matter to
Sharkey’s attention earlier. However, the Union could have
done so, either in writing or by telephone, after receiving the
April 4 draft but it did not. The validity of the Respondent’s
explanation need not be resolved because the Company
strongly maintains that it never withdrew the pension and
profit-sharing proposal to which the parties had noted their
assent in December, long before the January and February
negotiating sessions took place, and stood ready throughout
its dealings with the Union to include such a provision in its
contract. Accordingly, while the April 4 document itself does
not fully represent the complete agreement between the par-
ties, that document, plus the earlier agreement on pension
and profit sharing, does constitute a complete agreement.
Respondent argues in its brief that the Union really did not
want a contract in the first place and that it is only com-
plaining now about the Respondent’s actions during negotia-
tions so that it can keep alive an unfair labor practice case
and block the processing of a decertification petition. This
argument misses the mark, since the same result could be
achieved by the Union with a signed contract under the
Board’s contract-bar rules. Closer to the mark is the problem
which the Union might have in getting this contract or any
contract ratified by the members of a bargaining unit who
have soured on it. However, the Board has frequently held
that a requirement for contract ratification is one which a
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union takes upon itself voluntarily, so when or whether ratifi-
cation ever takes place is a matter into which neither the
Board nor this employer may inquire. North Country Motors,
146 NLRB 671 (1964); Houchins Market of Elizabethtown,
155 NLRB 729 (1965); M & M Oldsmobile, Inc., 156 NLRB
903 (1966), enfd. 377 F.2d 712 (2d Cir. 1967); London Chop
House, 264 NLRB 638 (1982).
When, in March 1990, the Respondent’s labor counsel
wrote to the Union stating that it had withdrawn recognition,
it was guilty of a violation of Section 8(a)(1) and (5) of the
Act. An employer cannot withdraw recognition on the basis
of a good-faith doubt of the Union’s continued majority sta-
tus when it has contributed to the undermining of the
Union’s majority status. While its actions in so doing were
not alleged in this case as an unfair labor practice, these ac-
tions may be assessed in determining the existence vel non
of a defense of good-faith doubt. Moreover, whenever good-
faith doubt of the continuing majority status of a labor orga-
nization is asserted, it must be done in a context free and
clear of collateral unfair labor practices. Abby Medical/Abby
Rents, 264 NLRB 969 (1982); Cypress Lawn Cemetery
Assn., 300 NLRB 609 (1990). As discussed infra, the Re-
spondent committed a series of unfair labor practices from
the time it agreed in a Board proceeding to bargain in good
faith until the day it formally refused to bargain at all. Ac-
cordingly, it was not privileged to discontinue its relationship
with the Union by withdrawing recognition but was under a
continuing obligation to continue trying to work out a con-
tract.
Throughout the year which followed the settlement agree-
ment in the earlier Board case, the Respondent often con-
ducted its personnel relations as if there were no union in the
shop with which it was obligated to bargain. It made several
unilateral changes in wages and working conditions without
going through any pretense of bargaining.
(a) It has long been held that the implementation of a
health insurance plan is a mandatory subject of bargaining.
General Motors Corp., 89 NLRB 779 (1950); W. W. Cross
& Co., 77 NLRB 1162 (1948), enfd. 174 F.2d 875 (1st Cir.
1949). The identity of the health insurance carrier is as much
a mandatory subject of bargaining as is the level of benefits
to be enjoyed by employees. Connecticut Light Co, 196
NLRB 967 (1972), rev. 476 F.2d 1079 (2d Cir. 1973); Aztec
Bus Lines, 289 NLRB 1021, 1036 (1988). In the case at
hand, the Respondent changed its dental plan from Lincoln
National to EBC without bargaining with the Union about
the change. This omission on its part was a violation of Sec-
tion 8(a)(1) and (5) of the Act.
Regarding the accidental injury provision of its medical
plan, a change without bargaining also occurred. Under the
new plan, employees were required to pay 20 percent of the
cost of the first $300 of an accidental injury benefit, whereas
previously the entire cost was insured by Lincoln National.
On the face of it, this would appear to be a change in bene-
fits which violated the Act because it had not been the sub-
ject of collective bargaining before it was effectuated. The
Respondent claims that there was no change at all because
it decided to pick up the difference. In a letter to Klein of
September 26, 1989, in which he forwarded a copy of the
new health and dental plan booklets, Meinerz explained that
‘‘(2) the $300 full pay accident benefit is now handled as
any other claim. Everything else within the plan remains the
same.’’ Its belated statement that it was going to pick up the
difference was never put in writing and never actually imple-
mented in any actual case. This was simply a defense, con-
jured up out of whole cloth, to provide cover in an unfair
labor practice proceeding. Nor is it a defense to the Respond-
ent that Lincoln National made the change on a systemwide
basis without consulting the Respondent. The Respondent
could have paid an additional premium to the carrier and re-
tained the former coverage. It was not a helpless pawn in the
hands of its insurance carrier. Of course, it could have noti-
fied the Union and bargained about the change. It did none
of these things, and because of its omission, it violated Sec-
tion 8(a)(1) and (5) of the Act.
(b) On December 1, 1989, the Respondent instituted a
sweeping program of drug testing which provided, among
other things, that any employee who refused to cooperate by
not taking a drug test could be summarily discharged. It did
not even go through the motions of bargaining about this re-
vision in its personnel practices. Its defense was similar to
the one advanced with respect to its unilateral change of in-
surance coverage, namely that it was obligated to adopt this
plan because of new Department of Transportation (DOT)
regulations and had no lawful choice but to do what it did
whether the Union liked it or not.
Alcohol and drug testing plans are mandatory subjects of
bargaining. Johnson-Bateman Co., 295 NLRB 180 (1989). At
the time the Respondent implemented its drug testing plan in
December 1989, there were many discretionary matters in-
volved in its plan which were not mandated in the require-
ments of the DOT Regulations. The Respondent implemented
its drug testing plan a year before the regulations required it
to do so. The regulations relied upon by the Respondent and
submitted as an appendix to its brief apply only to drivers
who operate interstate vehicles which have a gross vehicle
weight rating or a gross combination weight rating of 26,001
or more pounds. The Respondent operates trucks of various
sizes and descriptions, and it is not at all clear from the
record that all of them, or indeed any of them, fall within
the weight categories covered by the DOT regulations. The
Respondent’s plan does not provide for a rehabilitation pro-
gram but could have, and an experienced negotiator in this
area of industrial relations might well find other deficiencies
and other possibilities which could be talked about during a
meaningful bargaining session. Moreover, the plan at issue
calls for possible dismissal for a violation, something the
regulations do not require. This matter as well could have
been discussed in negotiations but it was not because the Re-
spondent elected to implement the entire plan unilaterally.
Accordingly, by instituting its drug testing program on De-
cember 1, 1989, without notifying the Union and offering to
bargain with it concerning the provisions of the plan, the Re-
spondent again violated Section 8(a)(1) and (5) of the Act.
(c) In August 1989, the Respondent held a steak fry for
its Albion employees and rewarded each one who attended
the event with cash bonuses ranging from $20 to $100. There
is no suggestion that these bonuses were discussed with the
Union or that the Union even knew about them until after
they were distributed. The Respondent seeks to justify its ac-
tion by pointing out that, in previous years, it had a practice
of distributing cash bonuses to employees at its annual
Christmas party and that the action complained of by the
General Counsel was just another part of its standard, ongo-
1101SEILER TANK TRUCK SERVICE
ing practice. Christmas did not take place in August at the
Respondent’s shop in any year before 1989. Accordingly, by
distributing cash bonuses to employees without bargaining
about the matter with the Union, the Respondent here vio-
lated Section 8(a)(1) and (5) of the Act. Koenig Iron Works,
282 NLRB 717 (1987), enfd. 681 F.2d 130 (2d Cir. 1988).
(d) It is a violation of Section 8(a)(1) and (5) of the Act
for an employer to refuse to furnish to a union any informa-
tion which is relevant and necessary for the Union to have
in order to fulfill its duty as bargaining representative. It is
also an unfair labor practice for an employer to furnish such
information on a timely basis. American Model & Pattern
Co., 277 NLRB 176 (1985); Advertiser’s Mfg., 294 NLRB
740 (1989). In early August, Klein requested a copy of the
Respondent’s dental and medical plans. He received nothing
until September 26 and was then furnished only a copy of
the old medical plan and the new dental plan. The Respond-
ent did not send him a copy of the new medical plan. While
the Respondent may have had an excuse for not providing
the new Lincoln National plan because it had not received
a copy from its insurance carrier, there was no excuse for
taking more than 7 weeks to provide the other information.
By its delay in furnishing such information, the Respondent
violated Section 8(a)(1) and (5) of the Act. The information
requested of the Respondent in February 1990, relating to
Spradlin’s discharge was certainly relevant to the Union’s re-
sponsibility to represent Spradlin in pressing a grievance or
protesting a discharge. Since there was no contract in effect
at the time, the matter was critical to the negotiation of a
grievance on an extracontractual basis. The Respondent’s
only justification for denying the Union this information was
that it felt that the Union was no longer the bargaining rep-
resentative of unit employees. Since, as found above, that
contention is without merit, the defense asserted by the Re-
spondent which follows from its faulty premise is equally
without merit. Accordingly, by refusing to furnish the Union
with requested information pertaining to Spradlin’s discharge,
the Respondent herein violated Section 8(a)(1) and (5) of the
Act.
(e) At or about the time of the August 1989, steak fry,
Hammontree had a private conversation with driver Ed Rose,
at which time Rose complained that the Company did not
have a pension or profit-sharing plan and that he would
eventually quit if the Company did not put one into effect.
The question of the adoption of such a plan had been the
subject of an exchange of correspondence between Sharkey
and Sale the previous December, at which time Sharkey told
Sale that, for tax purposes, the Company wanted to have an
immediate answer from the Union as to the acceptability of
its proposed plan so that IRS could be notified and the plan
put into effect before the close of 1988. Sale agreed to the
plan but apparently it was not implemented, since Rose com-
plained 9 months later about the absence of any plan in the
Company’s fringe benefit package.
Hammontree admitted at the hearing on cross-examination
that, in October 1989, the Company put a pension and profit-
sharing plan into effect. Whether it was the same plan nego-
tiated with the Union the previous December or some other
plan is unclear from the record. What is clear is that there
was no discussion with the Union in the fall of 1989 con-
cerning the plan or its implementation. Respondent claims
that it was entitled to take this action unilaterally since the
parties were then at impasse and it was privileged to act uni-
laterally in such circumstances. However, the Respondent
was, at that time, guilty of committing several serious unfair
labor practices and the implementation of the plan took place
in that context. A party may not declare or invoke the exist-
ence of an impasse to justify its unilateral actions when it
has committed unfair labor practices leading up to the al-
leged impasse. Nu-Southern Dyeing & Finishing, 179 NLRB
573 (1969); Cypress Lawn Cemetery Assn., supra.
However, an alternative defense is available to the Re-
spondent. In December, the Union actually consented to the
adoption of the plan so its implementation, however tardy,
can hardly be said to have taken place without either bar-
gaining or agreement. Accordingly, I will recommend the
dismissal of so much of the amended consolidated complaint
which alleges that the Respondent here violated the Act by
unilaterally implementing a pension and profit-sharing plan
in the fall of 1989.
(f) The General Counsel alleges that the Respondent was
guilty of an unlawful refusal to bargain when, in January
1989, as Spradlin and Myers were returning to work, it
changed its prestrike method of assigning work to drivers
from using seniority as a criteria for dispatch to a policy of
ignoring seniority for assignment purposes. There is no dis-
pute that, since January 1989, the Respondent has ignored
time in grade or seniority as a basis for making daily work
assignments. This is one of the major complaints asserted by
Myers and Spradlin, and Hammontree and others agree with
them on this point as to the Respondent’s postsettlement op-
erations. The factual issue is what the Respondent did before
the strike began in 1987.
Both Spradlin and Myers were emphatic that daily assign-
ments were made each morning by the pushers on a seniority
basis before the strike. Since they were among the most sen-
ior drivers, they were regularly dispatched early in the day
and had little shop time at which they worked the minimum
wage. Hammontree is equally emphatic that the Respondent
never used seniority as a factor in job assignments, either be-
fore or after the strike, and he was backed up in his conten-
tion by driver Edward N. Jarosz, a former striker, who re-
turned to work during the strike and was later promoted to
pusher.
In this conflict of views, I discredit Hammontree, whose
obvious and intense bitterness colored all of his testimony.
Myers impressed me as a particularly reliable witness, both
on the basis of the internal consistency of his testimony, the
high repute in which he was and is held even by the Re-
spondent’s supervisors, and his demeanor. Accordingly, I
conclude that the Respondent did alter its hiring practice fol-
lowing the strike after Spradlin and Myers returned to work
by ignoring seniority as a factor governing daily dispatch.
The net effect of this change was to deprive Myers and
Spradlin of assignments which they otherwise might have.
By altering working conditions in this regard without bar-
gaining about them with the Union, the Respondent here vio-
lated Section 8(a)(1) and (5) of the Act.
The reduction of hours of regular driving work assigned
to Spradlin and Myers in violation of Section 8(a)(3)
of the Act
The General Counsel alleges that the Respondent discrimi-
nated against returning strikers Spradlin and Myers, reducing
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 F. W. Woolworth Co., 90 NLRB 289 (1950).
their wages by reducing the number of regular hours worked
by each of them. As noted above, all drivers are com-
pensated on the basis of two different wage rates. While
driving on an assignment, they receive the rate attached to
the type of assignment they are given, whether it be hauling
brine, hauling crude oil, or doing ‘‘hot oil’’ work. When
there is no driving work available, they are allowed to stay
in the shop and perform routine maintenance chores for
which they are paid the Federal minimum wage. This dis-
parity—between the minimum wage and the regular driving
rates—has always been quite pronounced.
The Respondent placed summaries in the record, drawn
from weekly payroll sheets, showing that Spradlin and Myers
worked hours comparable to those worked by other drivers,
some weeks working a little less and some weeks working
a little more than others. This contention misses the point of
the General Counsel’s argument. While Spradlin and Myers
may have worked comparable hours with other drivers, they
were not paid comparable wages because a significant pro-
portion of those hours was compensated only at a low shop
rate.
The summaries placed in the record by the General Coun-
sel bear out the existence of significant disparities in shop
hours between Spradlin and Myers, on the one hand, and the
shop hours worked by other employees. These disparities
necessarily had a marked impact on earnings. According to
Hammontree and others, Myers was a good driver and a
versatile one so there was no excuse for such disparity in his
assignments. Spradlin was assertedly a poor driver who
drove only water trucks and was persona non grata at a cou-
ple of jobsites, so, according to the Respondent, he did not
get as many assignments as he might otherwise have re-
ceived because of his own limitations as an employee. More-
over, Hammontree complained that both Spradlin and Myers
refused overtime and weekend work and that Spradlin often
went home during the day rather than continue to work at
the minimum wage, something he was privileged to do under
the Respondent’s policy but which apparently Hammontree
did not like. The latter allegations, even if factually true,
have no bearing on the nub of the General Counsel’s argu-
ment, which is that both drivers received an excessive
amount of low paid shop time in lieu of driving assignments.
Such demonstrable facts, introduced into the record in this
case from the pay records of both discriminatees, occurred
against a background of intense animus. Spradlin and Myers
were the only employees on the Respondent’s payroll who
stayed out during the entire period of the strike. They had
not been reinstated until an unfair labor practice case was
settled some months after the strike ended. Both were Union
committeemen and both were among a handful of drivers in
the shop who did not sign the decertification petitions, a fact
well known to Hammontree, who had been furnished with
lists of drivers who had signed in support of the two decerti-
fication efforts. Moreover, both discriminatees were senior
employees in the shop at a time when the Respondent’s as-
signment practices had been changed to do away with senior-
ity as a factor in making daily assignments, a personnel
change which accommodated the end which the Respondent
set about to achieve. Accordingly, I conclude that, by reduc-
ing the number of regular driving hours assigned to Spradlin
and Myers because of their membership in and activities on
behalf of the Union, the Respondent violated Section 8(a)(1)
and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent Seiler Tank Service, Inc., a subsidiary of
the Elkin Company, is now and at all times material here has
been an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL–
CIO, and its Local 1176, and each of them, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time truckdrivers, helpers,
mechanics, and hot oilers employed by the Respondent at or
out of its Albion, Michigan facility, excluding all office cler-
ical employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material, the Union has been and is the ex-
clusive collective-bargaining representative of all of the em-
ployees in the unit found appropriate in Conclusion of Law
3 for the purpose of collective bargaining, within the mean-
ing of Section 9(a) of the Act.
5. By withdrawing recognition from the Union as the ex-
clusive collective-bargaining representative of the employees
employed in the unit set forth above; by refusing to furnish
the Union with certain information which is necessary and
relevant to the performance of its function as bargaining rep-
resentative and by undue and unjustified delay in furnishing
other information; by unilaterally discontinuing its former
work assignment practice of using seniority as a factor in
making daily assignments; by unilaterally changing health in-
surance carriers and by unilaterally changing the coverage of
its accidental injury insurance program; by unilaterally insti-
tuting a drug testing policy; and by paying cash bonuses to
employees without first notifying the Union and offering to
bargain over the subject of cash bonuses, the Respondent
violated Section 8(a)(5) of the Act.
6. By reducing the driving hours of Willie Spradlin and
Chris Myers because of their membership in and activities on
behalf of the Union, the Respondent herein violated Section
8(a)(3) of the Act.
7. The aforesaid unfair labor practices also constitute vio-
lations of Section 8(a)(1) of the Act and have a close, inti-
mate, and adverse effect on the free flow of commerce with-
in the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent herein has engaged in
certain unfair labor practices, I will recommend to the Board
that it be required to cease and desist therefrom and to take
certain affirmative actions designed to effectuate the pur-
poses and policies of the Act. I will recommend that the Re-
spondent be required to make whole Willie Spradlin and
Chris Myers for any loss of earnings which they may have
sustained by reason of the discriminations practiced against
them, in accordance with the Woolworth formula,12 with in-
terest thereon at the rate prescribed by the Tax Reform Act
of 1986 for the overpayment and underpayment of income
taxes. New Horizons for the Retarded, 283 NLRB 1173
1103SEILER TANK TRUCK SERVICE
13 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.
14 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.’’
(1987). I will also recommend that the Respondent be re-
quired to recognize the Union and to bargain collectively in
good faith with it as the exclusive collective-bargaining rep-
resentative of its employees, and, if agreement is reached, to
embody the terms and conditions of the agreement into a
signed, written document. But for the concession on the
record by the General Counsel that this is not an 8(d) case,
I would have recommended to the Board that the Respondent
now be required to sign a contract containing the agreement
that it had reached with the Union in April 1989. I will rec-
ommend that the Respondent be required to cease and desist
from making unilateral changes in the wages, hours, and
terms and conditions of employment of its employees and
that it reinstate working conditions that it unilaterally discon-
tinued in 1989. I will also recommend to the Board that the
Respondent be required to post the usual notice, informing
its employees of their rights and of the results in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Seiler Tank Truck Service, Inc., a sub-
sidiary of Elkin Company, Albion, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with International
Union, United Automobile, Aerospace and Agricultural Im-
plement Workers of America (UAW) AFL–CIO and its
Local 1176, as the exclusive collective-bargaining representa-
tive of its full-time and regular part-time drivers and mechan-
ics employed at its Albion, Michigan facility.
(b) Failing and refusing to provide the Union, in a timely
fashion, with all of the information that the Union requests
which is relevant to the Union’s responsibility to act as the
exclusive collective-bargaining representative of the Re-
spondent’s Albion, Michigan truckdrivers and mechanics.
(c) Unilaterally discontinuing its practice of utilizing se-
niority as a factor in making daily assignments, or unilater-
ally changing any work assignment practice.
(d) Unilaterally changing its health insurance carrier or
unilaterally changing any term of its health insurance pro-
gram.
(e) Unilaterally instituting a drug or alcohol abuse testing
program.
(f) Unilaterally paying bonuses or implementing any other
change in wages, hours, or terms and conditions of employ-
ment; provided that nothing herein shall be construed to re-
quire the Respondent to discontinue the payment of any
wage or benefit or to recoup the payment of any wage,
bonus, or benefit heretofore given to its employees.
(g) Discouraging membership in or activities on behalf of
International Union, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America (UAW), AFL–
CIO, or its Local 1176, or any other labor organization, by
reducing the driving hours of employees or otherwise dis-
criminating against them in their hire or tenure.
(h) By any like or related means interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and bargain collectively in good faith with
the Union as the exclusive collective-bargaining representa-
tive of its full-time and regular part-time drivers and mechan-
ics employed at its Albion, Michigan facility, and, if agree-
ment is reached, embody the same in a written, signed docu-
ment.
(b) Furnish the Union forthwith all of the information it
requested concerning the discipline and discharge of Willie
Spradlin, and any other information it may request which is
relevant to its statutory duty as bargaining representative of
the Respondent’s drivers and mechanics.
(c) Restore the practice of utilizing seniority as a factor in
the daily assignment of drivers and maintain that practice in
effect until the Union agrees to a discontinuance of the prac-
tice or the Respondent has bargained to impasse in good
faith with the Union concerning that practice.
(d) Make whole Willie Spradlin and Chris Myers for any
loss of pay or benefits suffered by them by reason of the dis-
criminations found here, with interest, in the manner de-
scribed above in the remedy section.
(e) Preserve and, on request, make available to the Board
and its agents for examination and copying all payroll and
other records necessary to analyze the amounts of backpay
due under the terms of this Order.
(f) Post at the Respondent’s Albion, Michigan facility cop-
ies of the attached notice, marked ‘‘Appendix.’’14 Copies of
the notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees 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.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
Insofar as the consolidated amended complaint alleges
matters which have not been found to be unfair labor prac-
tices, the consolidated amended complaint is hereby dis-
missed.
1104 DECISIONS OF THE 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 Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with the Inter-
national Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW), AFL–CIO and
its Local 1176, as the exclusive collective-bargaining rep-
resentative of the full-time and regular part-time drivers and
mechanics employed at our Albion, Michigan facility.
WE WILL NOT fail or refuse to provide the Union, in a
timely fashion, with all of the information that the Union re-
quests which is relevant to the Union’s responsibility to act
as the exclusive collective-bargaining representative of the
full-time and regular part-time drivers and mechanics em-
ployed at our Albion, Michigan facility.
WE WILL NOT unilaterally discontinue our practice of uti-
lizing seniority in making daily work assignments or unilat-
erally change any work assignment practice.
WE WILL NOT unilaterally change health insurance carriers
or the terms of our health insurance program.
WE WILL NOT unilaterally institute a drug or alcohol abuse
testing program.
WE WILL NOT unilaterally pay bonuses or implement any
other changes in wages, hours, or terms and conditions of
employment.
WE WILL NOT discourage membership in or activities on
behalf of International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
AFL–CIO, or its Local 1176, or any other labor organization,
by reducing the driving hours of employees or otherwise dis-
criminating against them in their hire or tenure.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL recognize and bargain collectively in good faith
with the Union as the exclusive collective-bargaining rep-
resentative of our full-time and regular part-time drivers and
mechanics employed at our Albion, Michigan facility and, if
agreement is reached, embody the same in a signed, written
document.
WE WILL furnish the Union forthwith all of the informa-
tion it requested concerning the discipline and discharge of
Willie Spradlin and any other information it may request
which is relevant to its statutory duty as bargaining rep-
resentative of the full-time and regular part-time drivers and
mechanics at our Albion, Michigan facility.
WE WILL restore the practice of utilizing seniority as a fac-
tor in the daily assignment of drivers and maintain that prac-
tice in effect until the Union agrees to a discontinuance or
we have bargained to impasse in good faith with the Union
concerning that practice.
WE WILL make whole Willie Spradlin and Chris Myers for
any loss of pay or benefits which they may have suffered by
reason of the discriminations found in this case, with interest.
SEILER TANK TRUCK SERVICE, INC., A SUB-
SIDIARY OF ELKIN COMPANY