Sitton Tank Co.

National Labor Relations Board - Board Decisions

Sep 17, 1971

193 N.L.R.B. 209 (N.L.R.B. 1971)

SITTON TANK CO. 209
Sitton Tank Company and Construction , Building
Material , Ice and Coal, Laundry , Dry Cleaning and
Industrial Laundry and Dry Cleaning Drivers,
Helpers, Warehousemen and Yardmen , and Allied
Workers, Local Union No. 682 , affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 14-CA-6059
September 17, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On June 21, 1971, Trial Examiner Wellington A.
Gillis issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Decision and a
supporting brief.I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions,2 and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified herein,
and hereby orders that the Respondent Sitton Tank
Company, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order as so modified:
1. Substitute the word "other" for the words "like
or related" in paragraph 1(b).3
2. Renumber paragraphs 2(b) and 2(c) as 2(d) and
2(e), respectively, and insert the following paragraphs
to be numbered 2(b) and 2(c):
"(b) Make whole employees Willie Williams, Kirk
Harry, Mathew Hunt, and Roosevelt Yancy in the
manner set forth in the section of the Trial Examiner's
Decision entitled `The Remedy.' "
"(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order."
3. Substitute the attached notice for the Trial
Examiner's notice.
i In addition , the General Counsel filed a motion to remand the case to
the Trial Examiner in order that the record be reopened and consolidated
with Cases 14-CA-6296 and 14-CA-6359 That motion is hereby denied
inasmuch as we consider such action unnecessary to the disposition of
those cases or the instant case
2 We find that the General Counsel established a prima facie case as to
the 8(a)(3) violations , which the Respondent failed to rebut
in adopting the conclusion of the Trial Examiner that the Respondent
refused to bargain in violation of Section 8(a)(5) of the Act, we do not rely
on his comments regarding the Employer 's lack of good-faith doubt. When
determining whether a bargaining order is warranted , the Board now
applies the standards enunciated by the Supreme Court in N L R B v
Gissel Packing Company, 395 U S 575 Applying those standards to the
circumstances of this case , we believe that a finding of a refusal to bargain
and a bargaining order are warranted In addition , we find it unnecessary
to pass on the Trial Examiner 's dictum in fn 16 of his Decision that a
bargaining order should issue in this case even if, contrary to the fact, the
four layoffs herein had been nondiscriminatory
3 See N L R.B v Entwistle Mfg. Co, 120 F 2d 532 (C A 4)
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees about
the Union, make promises of benefit to our
employees, and threaten them with the discontin-
uance of the practice of permitting the purchase of
auto parts and gasoline or the making of loans to
our employees based on union activities.
WE WILL NOT discourage membership in Con-
struction, Buildings Material, Ice and Coal,
Laundry, Dry Cleaning and Industrial Laundry
and Dry Cleaning Drivers, Helpers, Warehouse-
men and Yardmen, and Allied Workers, Local
Union No. 682, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or in any labor
organization, by discharging any of our employ-
ees, or in any like manner discriminating in regard
to hire and tenure of employment, or any term or
condition of employment in violation of Section
8(a)(3) of the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their Section 7 rights.
WE WILL make whole employees Willie Wil-
liams, Kirk Harry, Mathew Hunt, and Roosevelt
193 NLRB No. 32
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yancy for any loss of pay they may have suffered
by reason of our discrimination against them.
WE WILL, upon request, bargain collectively
with Construction, Building Material, Ice and
Coal, Laundry, Dry Cleaning and Industrial
Laundry and Dry Cleaning Drivers, Helpers,
Warehousemen and Yardmen, and Allied Work-
ers, Local Union No. 682, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of all employ-
ees in the bargaining unit described above with
respect to grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions
of employment, and, if an understanding is
reached, embody it in a signed agreement. The
bargaining unit is:
All employees employed at our plant in
Overland, Missouri, including truckdrivers,
but excluding office clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of
Construction, Building Material, Ice and Coal,
Laundry, Dry Cleaning and Industrial Laundry and
Dry Cleaning Drivers, Helpers, Warehousemen and
Yardmen, and Allied Workers, Local Union No. 682,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, except to
the extent that such right may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in
Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
SITTON TANK COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office , 210 North 12th Boulevard , Room 448, St.
Louis, Missouri 63101, Telephone 314-622-4167.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WELLINGTON A GILLIS, Trial Examiner: This case was
tried before me at St . Louis, Missouri , on May 4, 1971, and
is based upon a charge filed on January 21 and amended
February 23, 1971, by Construction, Building Material, Ice
and Coal, Laundry, Dry Cleaning and Industrial Laundry
and Dry Cleaning Drivers, Helpers, Warehousemen and
Yardmen, and Allied Workers, Local Union No. 682,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
hereinafter referred to as Local 682 or the Union,' upon a
complaint issued March 5, 1971, by the General Counsel
for the National Labor Relations Board , hereinafter
referred to as the Board , against Sitton Tank Company,
hereinafter referred to as the Respondent or the Company,
alleging violations of Section 8(a)(1), (3), and (5) and
Section 2(6) and (7) of the National Labor Relations Act, as
amended (61 Stat. 136), and upon an answer timely filed by
the Respondent denying the commission of any unfair
labor practices.
At the hearing, all parties were represented by counsel
and were afforded full opportunity to examine and cross-
examine witnesses , to introduce evidence pertinent to the
issues, and to engage in oral argument . Subsequent to the
close of the hearing, briefs were filed by counsel for the
General Counsel and the Respondent.
Upon the entire record in this case, and from my
observation of the witnesses , their demeanor on the witness
stand, and upon substantial, reliable evidence "considered
along with the consistency and inherent probability of
testimony" (Universal Camera Corp. v. N.L.R.B., 340 U.S.
474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Missouri corporation , maintaining
its only office and place of business in Overland , Missouri,
where it is engaged in the manufacture , sale, and
distribution of precast concrete septic tanks and manholes
and related products. During the year ending September 30,
1970, the Respondent made sales to (1) St. Louis County
Water Company in the amount of $8,880.29; (2) Karsten
Equipment Company in the amount of $5,115.71; (3)
Meiners Plumbing Company in the amount of $3,877.29;
(4) The Metropolitan St. Louis Sewer District in the
amount of $4,763.95; and (5) Fred M. Luth & Sons, Inc., in
the amount of $28,155.78 . These sales in the aggregate
amount to $50,793.02. Each of the first four companies
listed, St. Louis County Water, Karsten Equipment,
Meiners Plumbing , and Metropolitan St. Louis Sewer,
meets one of the Board 's jurisdictional standards, not
excepted under Siemons Mailing Service,2 for the purpose of
computing the Respondent 's indirect outflow.
The fifth, Fred M. Luth & Sons, is a Missouri corporation
operating as a sewer contractor in the St . Louis area.
The name of the Charging Party was amended at the hearing to
appear as set forth in the above caption
2 122 NLRB 81
SITTON TANK CO.
During the year ending September 30, 1970, Fred M. Luth
& Sons, Inc., purchased goods and materials in the amount
of $20,842.47 which were shipped directly from points
outside the State of Missouri. Fred M. Luth is a member of
Association of General Contractors of St. Louis and, as
such, has delegated its labor negotiations to this organiza-
tion. Employer members of the Association of General
Contractors of St. Louis, in the aggregate, annually receive
goods and materials valued in excess of $50,000 which are
shipped directly from points outside the State of Missouri.
The Respondent's argument that neither the operations
of Fred M. Luth nor the latter's membership in the AGC of
St. Louis may be relied upon in determining jurisdiction
over the Respondent was treated by the Board in its recent
Peterein and Greenlee Construction Company case.3 In that
case, the Board combined the direct inflow of two
employer-members of a multiemployer contractor's associ-
ation in order to assert jurisdiction over an excavation
contractor. As the combined inflow of the two employers
met the Board's minimum nonretail jurisdictional stand-
ards, the Board in that case found it unnecessary to
consider the direct inflow of the other members of the
contractor's association. However, as part of its reasoning
therein, the Board noted that consistently it has considered
all members of a multiemployer association who are bound
by multiemployer bargaining negotiations as a single
employer for jurisdictional purposes and reasserted the
policy of asserting jurisdiction over an employer which is a
member of an employer association where the employer's
operations alone do not meet the Board's standards but
where the association's total operations or the operations of
other members of the association, do meet the requisite
standards.4
Relying upon the same rationale as did the Board in
Peterein and Greenlee, but carrying it one step further,
recognizing that a labor dispute foreseeably would have a
substantial impact on interstate commerce whether one
member of the multiemployer association individually, or
all of the members of that association together, meet the
requisite standards, I find that, as the combined total of all
employermembers of the AGC of St. Louis exceeds the
Board's minimum nonretail jurisdictional standards, the
Respondent's services to Fred M. Luth & Sons, Inc., may
be included in determining that the Respondent meets the
Board's indirect outflow standards. Thus, as the Respon-
dent's aggregate of services to the above five employers
exceeds the Board's minimum jurisdictional standards for
indirect outflow, I find that the Board hasjurisdiction over
the Respondent, and that, at all times material to this
proceeding, the Respondent was an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
3 172 NLRB No 238
4 B & M Excavating Inc, 155 NLRB 1152.
5 At the conclusion of the General Counsel' s case, counsel for the
Respondent moved for dismissal of the complaint Paragraph 5E of the
complaint alleged as unlawful that the Respondent required the repayment
in a lump sum the balance due on an employee loan As the General
Counsel's evidence failed to substantiate the Section 8(a)(l) violation
contained therein, the motion to dismiss insofar as it related to Paragraph
5E of the complaint was granted In all other respects Respondent's motion
II. THE LABOR ORGANIZATION INVOLVED
211
The parties admit, and I find, that Construction, Building
Material, Ice and Coal, Laundry, Dry Cleaning and
Industrial Laundry and Dry Cleaning Drivers, Helpers,
Warehousemen and Yardmen, and Allied Workers, Local
Union No. 682, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues 5
1. Whether on or about January 8 and 14, 1971,
Respondent's General Manager Coolbroth engaged in
interrogation and threats and other conduct violative of
Section 8(a)(1) of the Act.
2. Whether, in laying off employees Willie Williams,
Kirk Harry, Mathew Hunt, and Roosevelt Yancy on
certain specified dates in January 1971, the Respondent did
so because of their having engaged in union activity.
3. Whether the Respondent since on or about January
8, 1971,8 has refused to bargain collectively with the Union
in violation of Section 8(a)(5) of the Act.
B. Facts 7
In early 1971, at the time of the events herein pertinent,
the Respondent employed six full-time production employ-
ees plus one part-time production employee, all of whom
either drove trucks or worked in the shop breaking out
manholes, setting up manholes and septic tanks, and
pouring concrete. The Respondent's entire operation is run
almost exclusively by General Manager William Coolbroth,
Jr., for his father and owner, William Coolbroth, Sr.8
On January 4, Robert Sansone, recording secretary and
business representative for Local 682, received a telephone
call from Mathew Hunt, one of the four alleged employee
discriminatees herein, during which Hunt told Sansone that
he, along with several other employees, would like to talk
with him aboutjoining the Union and being represented by
Local 682. Sansone arranged to meet with the employees
the following evening, January 5, around 5:00 p.m.
At this meeting held at the union office, Hunt,
accompanied by alleged discriminatees Kirk Harry, Willie
Williams, and Roosevelt Yancy, asked Sansone questions
concerning the benefits of Local 682, the health and welfare
plan, fringe benefits, and pension plan. Sansone answered
the questions, apprising the employees of what the Union
represented. After an initial discussion, the employees all
indicated that they would like to join the Union, to which
Sansone suggested that they first take home the union
authorization cards, read them over, and then, if they
was denied
8 All dates hereinafter set forth refer to the year 1971
r At the conclusion of the General Counsel's case, the Respondent also
rested without putting in a case Accordingly, the factual recitation herein
is based upon the General Counsel's evidence and specifically the
testimony of his witnesses Thus, quoted testimony as it appears from time
to time herein is that of the obvious testifying witness to the conversation
8 Reference herein to Coolbroth , unless otherwise indicated, is to
William Coolbroth, Jr
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wanted to join Local 682, to return the cards to him The
four employees stated, however, that they wanted to join
right then. Hunt, to one side, read the authorization card to
Yancy, who could not read well, and then, after a few more
questions and Sansone's explanation as to the import of
their signing the cards,9 all four of the employees signed
cards authorizing the Union to represent them and to
negotiate a collective-bargaining contract. Specifically, this
card, inter alia, states that the signatory employee does:
Hereby authorize the Building Material, Construction,
Ice and Coal Drivers, Helpers, Warehousemen and
Yardmen, Local No. 682, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, to represent me, in
my behalf, to negotiate and conclude all agreements as
to hours of labor, wages, and other conditions of
employment.
Each employee turned over his signed card to Sansone.
Sansone told the men that as soon as Coolbroth returned to
town he would contact him, show him the authorization
cards, and attempt to get the Company to recognize Local
682 as the bargaining representative for Sitton Tank's
employees.
Three days later, January 8, Coolbroth having returned,
Sansone went to the plant, introduced himself to Cool-
broth, and told him that he was there on behalf of his
employees, that four of his employees wanted Local 682 to
represent them. Coolbroth asked the names of the four
employees, and Sansone obliged by giving him their names
and telling Coolbroth that they had signed union authoriza-
tion cards. Coolbroth asked to see the cards, and Sansone
showed them to him. After Coolbroth looked them over, he
returned them to Sansone, saying that he could not do
anything at the present time because his father was out of
town. Sansone presented Coolbroth with a recognition
agreement, stating that it contained a standard recognition
clause, suggesting to Coolbroth that he talk with his father,
check with his counsel if he wished, and indicating that he
(Sansone) would give him about a week
A few hours later, around 1:00 p.m., when Hunt went
into the office to get his clipboard, Coolbroth asked Hunt
what he thought about the Union Hunt answered, saying
that he thought it was a good idea, that it had a lot of
benefits. Coolbroth then told Hunt that he was going to get
some insurance and hospital benefits for the employees,
that the additional cost would not matter as he would go up
on his prices. Coolbroth also told Hunt that there would be
no more auto parts for the employees, no more loans, and
no more gas, and that by doing away with taking out
advances in pay it would be a lot easier on the Company's
bookkeeping. to
On this same date, January 8, as Harry was picking up his
clipboard in the office, Coolbroth asked him "What is this
Union deal? Is this the road you want to follow, is this the
9 As Harry testified, Sansone told them that "This card we would sign
would be a power of attorney that would last for I year which would give
him and the Teamsters Union the right to bargain for us as an individual
with Sitton Tank Company in all labor relations"
10 This was in reference to the Respondent's long-established practice of
extending loans to its employees, and permitting the repayment by weekly
pay deductions, and to the company practice of permitting employees to
buy auto parts and gas for their personal use, and paying for such items by
road you want to follow?" Hunt answered in the
affirmative Coolbroth then asked Hunt when it was that
Sansone had come out to the shop. Hunt answered that it
was Tuesday, and Coolbroth then asked, "Did everybody
know about it?"
On or about January 13 Sansone went back to the
Respondent's office and talked with Coolbroth, who told
Sansone that his father was still out of town. When, in reply
to Sansone's question, Coolbroth indicated that his father
was expected back in a week or so, Sansone said he would
give him another week.
On January 14, when Yancy went to pick up his weekly
paycheck" he found that $25 had been deducted that
week. Yancy asked Coolbroth why he had hit his check so
heavy that week when the week before he had deducted
only $ 10. Coolbroth replied, "Well, Rose, you ain't with me
and I got to get mine, got to clean this up . . . I guess you
guys got what you all wanted."
Later the same day, when Williams went to pick up his
check after work, Coolbroth told him then he had to let him
go. When Williams inquired as to whether this was a layoff
or a discharge, Coolbroth replied that he could take it
anyway he wanted to.
On January 15, about 1.00 p.m., Coolbroth gave Harry
his paycheck and said he did not need him any more. Harry
asked Coolbroth when he was to come back, and Coolbroth
said he did not know.12
On Monday, January 18, around 8:30 a.m, Coolbroth
told Yancy, "Rose, I'm going to have to let you go. I tried to
be nice to you guys." Yancy said "okay." Coolbroth told
him that he could work the rest of the day if he wanted to,
that he would not take anything out of his check.
Unexplained is Yancy's reply to Coolbroth that "we made
an agreement to take off at noon time." An hour later,
about 9.30 a.m., as Hunt was changing his clothes,
Coolbroth approached him and told him that the Company
had lost two or three contracts and that he would have to let
him go, that he could not afford it. Coolbroth told Hunt
that he could work the rest of the day if he wished. Hunt
worked a half day and left.
On January 21, Sansone again visited the Respondent's
operations where he talked this time with both Coolbroth,
Jr., and Coolbroth, Sr. In reply to Sansone's question of
what they intended to do, Coolbroth, Sr., who did most of
the talking on this occasion, stated that, as far as he was
concerned, the Company's business was bad and that "he
would have to close the doors if he went union." When
Sansone asked if he meant that the Company did not want
to sit down and negotiate a contract with the Union,
Coolbroth, Sr., indicated that that was correct. Sansone
then inquired as to the status of the four people whom he
understood had been discharged. Coolbroth, Sr., replied
that the Company did not have any business and that they
did not need these four individuals. When Sansone asked if
weekly pay deductions
11 Although Friday, January 15, would have been the normal payday,
the employees apparently were paid on Thursday, January 14, because of
Martin Luther King's birthday
11 Harry's testimony as to Coolbroth's reply is that "he said he didn't
know, i guess He didn't give an exact date" In his pretrial affidavit, Harry
indicated that Coolbroth's reply was "Yes, I will recall you when we start
up again "
SITTON TANK CO
they were "discharged or what," Coolbroth, Sr., made no
answer. Sansone then asked if Coolbroth were taking the
employees back, and, receiving a negative reply, stated to
Coolbroth that he had no alternative but to file unfair labor
practice charges with the National Labor Relations Board
At that point, Coolbroth, Sr., stated that, as far as he was
concerned, the Company did not come under the Board's
ruling. Sansone said that he felt that it did, that he would
find out by filing charges, and also that he would take
economic recourse by setting up a picket line, to which
Coolbroth, Sr, told him to do what he had to do.
At some point during this discussion, Coolbroth stated
that he could not understand why these people wanted to
go union, that he had been fair with them and had loaned
them money. Sansone made a reference to fringe benefits,
to which Coolbroth, Sr., said that he thought the Company
was going to talk about getting the employees some benefits
such as health and welfare, pension, and insurance plans.
Toward the end of the conversation, Sansone asked
Coolbroth if he were sure that he did not want to sign the
recognition agreement and bargain with the Union.
Coolbroth replied that he did not, and, upon Sansone's
again repeating his request to bargain and receiving a
negative reply, he stated that Coolbroth left him no
alternative but to take economic recourse
That evening, January 21, Sansone contacted Hunt and
asked that all four of the employees meet him at his office.
Sansone apprised the men of the Company's refusal to
recognize the Union as the bargaining representative.
Sansone recommended that they go on strike, with which
recommendation the employees agreed Unfair labor
practice charges were filed the same day against the
Respondent and, in an amendment filed on February 23,
the Union charged a refusal to bargain since January 21 in
a unit of "all production and maintenance employees of the
employer's Overland, Missouri facility, including truckdri-
vers, but excluding office clerical and professional employ-
ees, guards and supervisors as defined in the Act."
Thereafter, on February 4, a union picket line consisting
of the four discriminatees was established at the Respon-
dent's plant. The picketing continued until the first part of
March when the Union learned that an unfair labor
practice complaint was going to issue based upon the
Union's charges against the Respondent. Thereafter,
around the middle of March, all four employees were called
back to work. 13
C Analysis and Conclusions
The General Counsel contends that upon learning of the
union activity of these four employees, the Respondent
engaged in unlawful interrogation and threats, discrimina-
torily discharged the four employees because of their union
activity, and thereafter refused to bargain in good faith.
The Respondent, in refuting the complaint allegations,
asserts that the alleged Section 8(a)(1) conduct is isolated in
nature, the four layoffs were economically necessitated by
seasonal business decline, and, concerning the refusal to
bargain, asserts, (1) that "they have not convinced the
213
Company that they represent a majority of employees in
any appropriate unit," and (2) the Union never made a
demand in "any" unit.
That Coolbroth, within hours of having learned that four
of his seven employees had signed up with the Union,
engaged in unlawful interrogation of his employees is well
established. Thus, on January 8, after Sansone left the
Respondent's office, Coolbroth asked Hunt what he
thought about the Union. Upon Hunt's reply that he
thought it was a good idea, adverting to its benefits,
Coolbroth countered with the statement that he was going
to get some insurance and hospital benefits for the
employees. Coolbroth followed this with the admonition
that there would be no more auto parts for the employees,
no more loans, and no more gas. Later, Coolbroth
questioned Harry about the Union and as to whether this
were the road he wanted to follow. Several days later,
Coolbroth continued his antiunion expressions by telling
Yancy, in reply to the latter's question as to why Coolbroth
had deducted so much from his paycheck, that "You ain't
with me . . . got to clear this up . . . I guess you guys got
what you all wanted." These statements stand unrefuted in
the record, for Coolbroth, who was present during the
entire proceeding, was not called to testify.
This conduct not only constitutes a violation of Section
8(a)(1), it also establishes union animus on the part of the
Respondent, supplying in part the motivation for the
subsequent termination of the four union adherents. I find,
as alleged in the complaint, that Coolbroth's asking Hunt
what he thought about the Union constitutes unlawful
interrogation, that his statement to Hunt that he was going
to get benefits for the employees constitutes a promise of
benefits, that Coolbroth's warning that there would be no
more auto parts, no more loans, and no more gas
constitutes unlawful threats, that Coolbroth's question of
Harry as to the Union and whether this were the road he
wanted to follow is unlawful interrogation, and finally that
Coolbroth's statement to Yancy that "You ain't with me
. got to clear this up . . . I guess you guys got what you
all wanted" is an unlawful threat, each of which constitutes
interference, restraint, and coercion of employees in the
exercise of their rights and, as such, a violation of Section
8(a)(1) of the Act.
As to the alleged discriminatory discharges, I again have
little trouble finding a violation. Williams had been
employed since November 1970, Harry since July 1970,
Yancy since early 1970, and Hunt off and on for 6 years.
All four were terminated without prior notice of any kind
and within 10 days of Coolbroth's learning of their union
advocacy and their having signed union authorization
cards and shortly after his engaging in unlawful interroga-
tion and threats. While the evidence indicates that, at least
in the case of Hunt, Coolbroth may have alluded to the
economic necessity of a layoff when making the termina-
tion, such statements are self serving and, by themselves,
have no probative value. Apart from Coolbroth's having
told Williams at the time of his hire, that there was a
possibility that he "might get laid off after business got
slower," and Coolbroth , Sr.'s assertion to Sansone on
13 The record is totally void of evidence revealing the circumstances
under which the four employees were recalled by the Company
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 21 that business was bad and that he did not need
these employees, there is no record evidence to support
such assertion by Coolbroth or to affirm the Respondent's
position that these layoffs were in fact economically
necessitated by a seasonal business decline. The Respon-
dent's true motives for these terminations may well be
found in the coercive conduct alluded to above and, on
January 21, in refusing Sansone's request to bargain, in
Coolbroth, Sr.'s, expressed fear of having to "close the
doors if he went Union," plus his lack of understanding as
to why these employees wanted to go union when he had
been so fair with them. I find, under these circumstances,
that in terminating the employment of Willie Williams on
January 14, Kirk Harry on January 16, Mathew Hunt on
January 18, and Roosevelt Yancy on January 18, 1971, the
Respondent did so because these employees had signed up
with the Union. Accordingly, I find their discharges to be
discriminatory and in violation of Section 8(a)(3) of the
Act.
With respect to the Section 8(a)(5) allegation, the facts
also are quite simple. On January 8, Sansone apprised
Coolbroth that he represented four of his seven employees,
showed Coolbroth upon request the four union authoriza-
tion cards which his employees had signed, and requested
that the Respondent execute an agreement recognizing the
Union as the collective-bargaining representative. As
already noted herein, these cards clearly and without
ambiguity state their purpose on their face, specifically
authorizing the Union to represent the employee for the
purpose of negotiating and concluding agreements as to
hours, wages, and other conditions of employment.
Without raising any question of any kind, Coolbroth
merely begged off until his father returned from out of
town. When refusing to recognize the Union and to
negotiate a contract on January 21, Coolbroth, Sr., could
only venture as a reason for such refusal that the
Company's business was bad and that "he would have to
close the doors if he went union." 14 Thus, at no time during
the conversation with Sansone did Coolbroth, Sr., raise any
doubt as to the validity of the cards, the union's
representative status, the sufficiency of the demand for
recognition, nor did he indicate a question existed as to the
unit sought. The arguments as to majority and failure of the
demand to state a unit were first raised by counsel at the
hearing and in his brief. In view of all the circumstances,
and the fact that these four employees constitute a majority
of any unit, be it production and maintenance or an all-
employee unit, as set forth in the Union's February 23
amended charge, I find such argument to be without merit.
As recognized by the Board in its recent Nat Harrison
Associates case,15 the important question concerning
whether a union's demand sufficiently identifies the unit for
which bargaining is sought, is whether the employer knows
that he is being asked to bargain with the union as a
representative of a certain group of employees. The Board
there held that all the surrounding circumstances must be
14 Coolbroth, Sr 's, assertion on this occasion that, as far as he was
concerned, the Company did not come under the Board's ruling, was not
made in reply to the Union's request to bargain, but rather in answer to
Sansone's expressed intent to file unfair labor practice charges as to the
four alleged discriminatees
15 Nat Harrison Associates, Inc, 177 NLRB No 24
considered "as no magic words are needed in this field of
law." Except for the office clerical, which category is
normally not included with production employees, Respon-
dent here employs but two categories of employees, two
shop employees and five truckdrivers who also work as
shop employees. Of the four union authorization cards, two
were signed by truckdnvers and two by shop employees.
Together they constitute a majonty of the Respondent's
employees. Thus, Coolbroth could in no way have been
misinformed or confused as to whom, or what unit, the
Union was seeking to represent.
I find, as alleged in the complaint, that "all employees of
Respondent including truckdrivers employed at its Over-
land, Missouri, plant, excluding office clerical employees,
professional employees, guards and supervisors as defined
in the Act" constitutes a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
The record amply demonstrates, and I find, that on
January 8, at which time the Union made its initial
bargaining demand and request for recognition, the Union
represented a majonty of the Respondent's employees in
the above appropriate unit. I further find, for reasons
above, that the Respondent, in refusing to bargain with the
Union on January 8, did not have a good-faith doubt of
majority but was seeking time to undermine the Union.
Such conduct constitutes a refusal to bargain within the
proscription of Section 8(a)(5) of the Act, and I so find.
If there ever were a case warranting the issuance of a
bargaining order as a remedy for a Section 8(a)(5) refusal to
bargain, in my opinion this is one . And, as the Supreme
Court has held, a bargaining order is appropriate where an
employer rejects a union card majority while at the same
time it is committing unfair labor practices that tend to
undermine the Union's majonty and make a fair election
an unlikely possibility. N.L.R.B. v. Gissel Packing Co., 395
U.S. 595. In view of the Respondent's interrogation,
threats, discriminatory discharge of all four union adher-
ents, and bad-faith refusal to bargain, I find that this case
falls well within the purview of the Court's Gissel
rationale.is Accordingly, as the Respondent's unfair labor
practices are so coercive and pervasive as to destroy the
conditions necessary for a free election and, as the
employee sentiment as expressed through their union
authorization cards is, in my opinion, a more reliable
measure of employee desires on the issue of representation
than an election in this case , I find that a bargaining order
is warranted.17
Upon the basis of the foregoing findings of fact, and
upon the record as a whole, I make the following:
CONCLUSIONS OF LAW
1. Sitton Tank Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Construction, Building Material, Ice and Coal,
16 1 would recommend that a bargaining order issue in this case even if,
contrary to the fact, the four layoffs herein had been nondiscriminatory
Gibson Products Company of Washington Parish, LA, Inc, 185 NLRB No
74
17 Lou De Young's Market Basket, Inc., 181 NLRB No 10
SITTON TANK CO. 215
Laundry, Dry Cleaning, and Industrial Laundry and Dry
Cleaning Drivers, Helpers, Warehousemen and Yardmen,
and Allied Workers, Local Union No. 682, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen And Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed by
Section 7 of the Act, the Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of
employment of Willie Williams, Kirk Harry, Mathew Hunt,
and Roosevelt Yancy, thereby discouraging membership in
and activity on behalf of a labor union, the Respondent has
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. All Respondent's employees employed at its Over-
land, Missouri, plant, including truckdnvers, but excluding
office clerical employees, professional employees, guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
6. On January 8, 1971, and at all times thereafter, the
Union was the exclusive selected and designated represent-
ative of all employees in the above-described unit, for the
purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
7. By refusing on January 8, 1971, and at all times
thereafter, to bargain collectively with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the appropriate unit, the Respondent has
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act
THE EFFECT UPON COMMERCE OF THE UNFAIR
LABOR PRACTICES
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices , it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act.
It having been found that the Respondent discriminatori-
ly discharged employee Willie Williams on January 14,
1971, Kirk Harry on January 15, 1971, and Mathew Hunt
and Roosevelt Yancy on January 18, 1971, thereby
violating Section 8(a)(1) and (3) of the Act, and taking
cognizance of the fact that all four employees have since
been reinstated to their former jobs, it is recommended that
the Respondent make each of them whole for any loss of
pay he may have suffered by reason of the discrimination
against him, by making payment to each of a sum of money
equal to the amount he would have earned from the earliest
date of the discrimination to the date that he was reinstated,
less net earnings during said period, to be computed on a
quarterly basis in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289, and shall include
the payment of interest at the rate of 6 percent to be
computed in the manner set forth by the Board in Isis
Plumbing & Heating Co., 138 NLRB 716. In this regard, it is
further recommended that the Respondent preserve and,
upon request, make available to the Board or its agents for
examination and copying, all payroll records and reports,
timecards, and all other records necessary to compute the
amount of backpay.
Having found that the Respondent on January 8, 1971,
and at all times thereafter has refused to bargain
collectively with the Union as the duly designated
representative of the employees in an appropriate unit, it is
recommended that the Respondent, upon request, bargain
collectively with the Union as the exclusive representative
of said employees, and, if an agreement is reached, embody
such understanding in a signed agreement.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 18
Respondent Sitton Tank Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees about the
Union, unlawfully promising its employees benefits,
unlawfully threatening its employees with the discontin-
uance of its practice of permitting the purchase of auto
parts and gasoline and the making of loans.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, except in a
manner permitted by the proviso to Section 8(a)(3) of the
Act.
(c) Discouraging membership in, and activity on behalf
of, Construction, Building Material, Ice and Coal, Laundry,
Dry Cleaning, And Industrial Laundry and Dry Cleaning
Drivers, Helpers, Warehousemen And Yardmen, And
Allied Workers, Local Union No. 682, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers Of America, or any other
labor organization, by discharging any of its employees, or
in any like manner discriminating in regard to the hire or
tenure of employment or any term or condition of
employment, in violation of Section 8(a)(3) and (1) of the
Act.
18 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and Order , and all objections thereto
shall be deemed waived for all purposes.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Refusing to bargain collectively with Construction,
Building Material, Ice and Coal, Laundry, Dry Cleaning,
and Industrial Laundry and Dry Cleaning Drivers, Helpers,
Warehousemen and Yardmen, and Allied Workers, Local
Union No. 682, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive collective-bargaining representa-
tive of the employees in the above-described appropriate
unit with respect to grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of
employment in violation of Section 8(a)(5) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive collective-bargaining representative of all the
employees in the above-described appropriate unit, with
respect to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment,
and embody in a signed agreement any understanding
reached.
(b) Post in conspicuous places at its Overland , Missouri,
plant , including all places where notices to employees are
customarily posted, copies of the attached notice marked
"Appendix." 19 Copies of said notice, on forms provided by
the Regional Director for Region 14, shall, after being duly
signed by an authorized representative of the Respondent,
be posted by it, as aforesaid, immediately upon receipt
thereof and maintained for at least 60 consecutive days
thereafter. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.20
19 In the event that the Board's Order is enforced by a Judgment of a 20 In the event that this recommended Order is adopted by the Board
United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed, this provision shall be modified to read.
Order of the National Labor Relations Board" shall be changed to read "Notify the Regional Director for Region 14, in writing , within 20 days
"Posted Pursuant to a Judgment of the United States Court of Appeals from the date of this Order, what steps the Respondent has taken to
Enforcing an Order of the National Labor Relations Board " comply herewith "