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National Labor Relations Board v. Mars Sales & Equipment Co.

decided: July 21, 1980.

NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
MARS SALES & EQUIPMENT CO., RESPONDENT



Application for Enforcement of an Order of the National Labor Relations Board

Before Wood, Circuit Judge, Markey, Chief Judge,*fn* and Cudahy, Circuit Judge.

Author: Wood

This appeal involves a National Labor Relations Board application for enforcement of its order dated June 13, 1979 issued against Mars Sales & Equipment Company (Company).*fn1 The Board, substantially adopting the recommended order of the Administrative Law Judge,*fn2 concluded that the Company violated Section 8(a)(1) of the National Labor Relations Act (Act) by attempting to negotiate directly with Company employees; by soliciting grievances directly from an employee; by requesting information from an employee concerning what contract terms he wanted; by telling Company employees that the Company had discharged employees who engaged in a protected strike; and by telling a non-Union employee that the Company had offered better insurance and retirement benefits, and better wages to the employees if they would get out of the Union. The Board also found that the Company violated Section 8(a)(1) and (3) of the Act by discharging striking employees Neaville and Metzger for engaging in a protected strike. The issues on appeal are whether the Board's findings are supported by substantial evidence, whether the Board's remedy of reinstatement and back pay for Neaville and Metzger is proper, and whether the Board abused its discretion by asserting its jurisdiction in this case.

Background

Mars Sales & Equipment is a small, seven-employee corporation involved in the nonretail sale, distribution, and service of food processing equipment. Located in Centralia, Illinois, the Company serves customers predominantly in two counties in southern Illinois. The Company is family owned and managed. The Company's stock is owned in equal shares by Nathan Rothschild, the Company president, and his wife Beverly, the Company's secretary-treasurer. Nathan, Beverly, and their son, David, constitute the Company's board of directors. David and his brother Jeff also serve as employees of the Company.

Two employees of the Company, Lenard Neaville, a warehouseman, and Victor Metzger, a truckdriver, were members of Teamsters Local Union 50, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union). The Company was under a duty to bargain with the Union with respect to this two-man bargaining unit. The collective bargaining agreement between the two-man unit and the Company expired on May 23, 1978. Neaville and Metzger began what the Company concedes was a protected economic strike on July 12, 1978.

Section 8(a)(1) Violations

The events involved in this case occurred in the months prior to and during the strike of the Company. The ALJ found and the Board agreed that a variety of statements and other conduct of the Company during this period were unfair labor practices in violation of Section 8(a)(1) of the Act.*fn3 Our inquiry is limited to whether "on the record as a whole there is substantial evidence to support (the Board's) findings. . . . " Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S. Ct. 456, 466, 95 L. Ed. 456 (1951).

The ALJ and the Board found that the Company prior to the strike violated Section 8(a)(1) by attempting to negotiate directly with employees who were Union members, by soliciting an employee's grievances, and by inquiring and obtaining directly from an employee the contract terms he wanted, at a time when the employees were represented by an exclusive bargaining representative.

The record reveals that some time before the expiration of the agreement, employees Neaville and Metzger informed the Union what they desired in a new contract. Company president, Nathan Rothschild, later told Neaville and Metzger that the requested contract terms were unacceptable. Later still, as Neaville testified, President Rothschild stated to the two employees

that he didn't see why we needed the union, that he didn't like working through a third party, that he would draw up a contract between ourselves and take it to his lawyer and have it certified and notarized and everything, and we would just have our own individual contract, that there was no sense of us paying union dues to the union, the union wasn't doing us any good anyway, and that we wouldn't that he wasn't going to agree with the union, that we was going to agree together first off before we talked to the union.

The record also reveals that President Rothschild told Metzger that he should bring his grievances directly to him before going to the Union.*fn4 Finally, there was testimony that President Rothschild asked employee Metzger what terms he desired in the contract. Metzger responded that he wanted more money and a retirement plan. This all occurred despite the Company's concession that it was under a duty to bargain with the Union as the employees' exclusive bargaining representative.

This conduct by the Company, which is based on testimony the ALJ and the Board relied on and credited, substantially supports the findings that the employer ignored the Union and negotiated directly with individual employees. It also supports a conclusion that the Company attempted to undermine the Union's role in the grievance procedure and impliedly promised a remedy, independent of Union involvement, for grievances. It is established that such conduct constitutes a violation of Section 8(a)(1), which forbids interference with the right of employees to bargain collectively through representatives of their choice and protects against interference with employees in their organizational efforts. See Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 684, 64 S. Ct. 830, 833, 88 L. Ed. 1007 (1944) (ignoring bargaining representative); NLRB v. Everbrite Electric Signs, Inc., 562 F.2d 405, 408 (7th Cir. 1977) (bargaining directly with individual employees); NLRB v. Tom Wood Pontiac, Inc., 447 F.2d 383, 384-85 (7th Cir. 1971) (usurping union's role in grievance procedure). Therefore, we grant enforcement of these aspects of the Board's order.

The ALJ and the Board also found that the Company violated Section 8(a)(1) of the Act during the strike by telling employees that the striking employees had been discharged for engaging in the strike and by telling a non-Union employee of the Company that the striking employees had been offered better ...


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