Coal, Gasoline and Fuel Oil Teamsters

COAL, GASOLINE AND FUEL OIL TEAMSTERS 111 ommend such action. In these circumstances, we find Jimenez does not possess supervisory authority and shall include him in the unit.' We find that all warehousemen and delivery drivers at the Em- ployer's Tampa, Florida, warehouse, including the shipping clerk, but excluding all other employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] 4 JIuam1 Paper Boat tl Mills, Inc. 109 NLRB 167 Coal, Gasoline and Fuel Oil Teamsters , Chauffeurs and Helpers, Local Union No. 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL and Stanley Gemalo. Case No. 2-CB-1150. July 12, 195.5 DECISION AND ORDER On April 19, 1955, Trial Examiner Albert P. Wheatley issued his Intermediate Report 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 copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations with the following additions and modifications : The General Counsel excepts to the Trial Examiner's failure to find that the Respondent's action causing the discharges of Gemalo and Zaza from their jobs was violative of Section 8 (b) (1) (A) as well as 8 (b) (2). We find, in agreement with the General Counsel, that the discharges did also violate Section 8 (b) (1) (A), because they had the effect of coercing and restraining other employees to join or retain membership in the Respondent Union by evidencing the Respondent's power to have the Company discharge employees upon mere request.' I Local 57, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO (International Harvester Company), 102 NLRP, 111; Clara-Val Packing Company, et at.. 87 NLRB 703, enforcement denied on grounds not relevant here 191 F. 2d 556 (C A 9) 113 NLRB No. 15. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY In light of our finding that the Respondent has violated Section 8 (b) (1) (A) as well as 8 (b) (2), and in order to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, we shall order the Respondent to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the amended Act. We also agree with the General Counsel's contention that the cir- cumstances of this case warrant that the Respondent be ordered di- rectly to inform the Company, in writing, that it has no objection to the employment or continued employment of Gemalo and Zaza by the Company, or by any other employer, subject to the proviso of Section 8 (a) (3) of the amended Act.2 ORDER Upon the basis of the entire record in this proceeding, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent Coal, Gasoline and Fuel Oil Teamsters, Chauffeurs and Helpers, Local Union No. 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, its officers, representa- tives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Attempting to cause or causing Allied Aviation Fueling of New York, Inc., or any other employer, to discriminate against em- ployees in violation of Section 8 (a) (3) of the Act. (b) In any other manner restraining or coercing employees of Allied Aviation Fueling of New York, Inc., or any other employer, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as au- thorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify Stanley Gemalo, Vito Zaza, and Allied Aviation Fuel- ing of New York, Inc., in writing, that it has no objection to the employment or continued employment of Gemalo and Zaza by Allied Aviation Fueling of New York, Inc., subject to the proviso of Section 8 (a) (3) of the Act. (b) Post in conspicuous places in its business offices and at all loca- tions where notices to its members are customarily posted, copies of 2 See: Local 257, Brotherhood of Painters, Decorators and Paperhangers of America, AFL, et al. (Wollucm Dotg & Son), 109 NLRB 821. COAL, GASOLINE AND FUEL OIL TEAMSTERS 113 the notice attached hereto marked "Appendix." I Copies of said notice to be furnished by the Regional Director for the Second Region, shall, after being signed by a duly authorized representative of the Respond- ent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail signed copies of the notice attached hereto marked "Ap- pendix" to the Regional Director for the Second Region for posting, Allied Aviation Fueling of New York, Inc., willing, at all locations where notices to the Company's employees are customarily posted. Copies of said notice to be furnished by the Regional Director for the Second Region shall, after being duly signed by an authorized repre- sentative of the Respondent, be forthwith returned to the Regional Director for such posting. (d) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein, insofar as it alleges that the Respondent has violated the Act otherwise than herein found, be, and it hereby is, dismissed. 8 In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL MEMBERS OF COAL, GASOLINE AND FUEL OIL TEAMSTERS, CHAUFFEURS AND HELPERS, LOCAL UNION No. 553, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF ALLIED AVIATION FUELING OF NEW YORK, INC. Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor elations Act, as amended, we hereby notify you that : WE WILL NOT attempt to cause or cause Allied Aviation Fueling of New York, Inc., or any other employer, to discriminate against employees in violation of Section 8 (a) (3). WE WILL NOT in any other manner restrain or coerce the em- ployees of Allied Aviation Fueling of New York, Inc., or of any other employer, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stanley Gemalo and Vito Zaza have been reinstated and made whole for the loss of pay suffered as a result of the discrimination against them. COAL, GASOLINE AND FUEL OIL TEAMSTERS, CHAUFFEURS AND HELPERS , LOCAL UNION No. 553, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for sixty (60) days from the date hereof and must not be altered, defaced , or covered by any other material. INTERMEDIATE REPORT ISSUES The primary issue herein is whether Coal, Gasoline and Fuel Oil Teamsters, Chauffeurs and Helpers, Local Union No. 553, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein called Re- spondent Union, violated Section 8 (b) (2) of the National Labor Relations Act, as amended, herein called the Act, by causing or attempting to cause Allied Avia- tion Fueling of New York, Inc., herein called Allied Aviation, to discriminate against Stanley Gemalo and Vito Zaza in violation of Section 8 (a) (3) of the Act. PROCEDURE Before discussing matters pertinent to the allegations of the complaint the Trial Examiner believes it appropriate to discuss certain procedural matters. On March 18, 1954, Stanley Gemalo filed the charge involved herein and on No- vember 3, 1954, the complaint was issued. The hearing before the Trial Examiner opened on January 10, 1955 At the opening of the hearing Respondent Union moved to dismiss the complaint on the ground that in the absence of a duly ap- pointed General Counsel of the National Labor Relations Board there was no au- thority to prosecute the complaint which had been issued. After the complaint issued the office of the General Counsel became vacant and was vacant at the time of the opening of the hearing. Upon denial of Respondent Union's motion, counsel for Respondent Union withdrew from further participation in the hearing. After counsel for Respondent Union withdrew from the hearing, the Trial Examiner re- ceived evidence bearing upon the allegations of the complaint. On January 11, 1955, counsel for the General Counsel announced that Gemalo had refused to com- ply with a certain subpena served upon him and requested an adjournment for the purpose of initiating a proceeding to require Gemalo to appear and testify. The Trial Examiner granted the request for an adjournment and such a proceeding was initiated before the United States District Court for the Southern District of New York. Counsel for Respondent Union in the proceeding before the Trial Examiner, entered an appearance on behalf of Gemalo in the proceeding before the district court and opposed the application for an order requiring Gemalo to ap- pear and testify. Thereafter, the district court entered an order requiring Gemalo to appear and testify in this proceeding. The proceedings before the Trial Examinee resumed on March 14, 1955. At this resumed hearing counsel for Respondent Union attempted to enter an appearance on behalf of Gemalo, in addition to his appearance on behalf of Respondent Union. The Trial Examiner refused to permit such an appearance on behalf of the Charg- ing Party. It then developed that counsel for Respondent Union desired to appear on behalf of Respondent Union and on behalf of Gemalo for a limited purpose only (for the purpose of trying to adjust the issues involved) and counsel for Respond- COAL, GASOLINE AND FUEL OIL TEAMSTERS 115 ent Union asserted he was under the impression that a conference for this pur- pose would be held at that time (at the resumed hearing). The Trial Examiner then indicated he believed that it was all right for counsel to appear for Respondent Union and for Gemalo for this limited purpose and a recess was taken so that counsel could explore, in the absence of the Trial Examiner, the possibilities of ad- justing the issues involved. A satisfactory adjustment did not materialize and the hearing resumed No prejudice resulted from this attempt at adjustment, but on reflection the trial Examiner believes that the interests of Respondent Union and of the Charging Party are so conflicting that counsel should not have attempted to rep- resent both even for the limited purpose of trying to adjust the issues raised by the complaint. After the hearing resumed Gemalo testified and counsel for Respond- ent Union did not participate on behalf of Gemalo, although he did participate on behalf of Respondent Union. At the conclusion of the proceedings on March 14, 1955, counsel for Respondent Union requested an adjournment for 2 weeks "for the purpose of producing testi- mony," if the matter was not otherwise disposed of by agreement in the meantime. The Trial Examiner granted this request and adjourned the proceeding until March 29, 1955. Counsel for Respondent Union did not appear at the hearing which re- sumed on March 29 and no evidence was offered on behalf of Respondent Union. A telegram from counsel for Respondent Union addressed "National Labor Rela- tions Board, Two Park Ave." New York, New York, and time stamped 6:20 p. in on March 28 was received in the Regional Office of the Board on March 29 at 9 a. m. and was i eceived in evidence when the hearing resumed that afternoon. This telegram stated "the Union does not desire to submit any further proof. We rest on the record." At the hearings before the Trial Examiner on January 10 and Mai4h 14, 1955, it was indicated that Gemalo desired to withdraw the charge herein. The Trial Ex- aminer at those times indicated that he was of the view that it was not proper for the Trial Examiner to consider such requests. During the recess from March 14 to 29 the Trial Examiner, on his own volition, reconsidered this matter and deter- mined that perhaps he was in error and concluded that he would pursue the matter further when the hearing resumed on March 29. As noted above counsel for Re- spondent Union did not appear at the hearing on March 29. Nevertheless, the hear- ing resumed and the Trial Examiner announced that assuming, aiguendo, that Gemalo's requests for withdrawal of the charge constitutes a motion to withdraw the charge within the meaning of the Board's Rules and Regulations, the Trial Ex- aminer would not consent to such withdrawal and stated his reasons for not con- senting thereto. The Trial Examiner has reconsidered the rulings made at the hearings and hereby adheres to them. However, this adherence is not a condonation of the efforts of counsel for Respondent Union to represent conflicting interests or of the lack of respect for the formal processes of governmental agencies which the conduct out- lined above reveals JURISDICTION Allied Aviation is a subsidiary of Allied Maintenance Corporation, a concern which engages, through subsidiary concerns, in maintenance and service work throughout the world. Allied Aviation is a New York corporation engaged in the transportation of aviation fuel from a depot in the vicinity of New York City to the New York In- ternational Airport at Idlewild, New York. Annually Allied Aviation transports fuel having a value in excess of $5,000,000 from the depot to aircraft at said air- port. Allied Aviation receives for this service in excess of $500,000 annually. The airport at Idlewild, New York, is used primarily by aircraft engaged in interstate and foreign commerce. The Trial Examiner finds that Allied Aviation is engaged in commerce or in a business affecting commerce within the meaning of the Act. THE FACTS CONCERNING THE DISCHARGES During the period of time material herein Stanley Gemalo and Vito Zaza were employees of Allied Aviation and drove gasoline trucks from the fuel depot to air- craft at the Idlewild airport. The members of Respondent Union, including Gemalo (the shop steward) and Zaza, at a meeting held on or about February 15, 1954, discussed ratification of a contract which Respondent Union then proposed to enter into with Allied Avia- tion This meeting was boisterous and approached a riot at one point. Gemalo 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Zaza and others were opposed to ratification of the contract and expressed their- views in no uncertain terms. Gemalo and others in expressing their disapproval of this contract used curse or swear words. As a result of their conduct at this meeting, Respondent's business agent (Al Gorman) informed Gemalo and Zaza, and he (Gorman) was going to file charges with Respondent Union against them. Thereafter Gemalo and Zaza were charged with "conduct unbecoming a union member" and, after a trial by Respondent Union, were suspended (on or about March 12, 1954) for 6 months. On or about February 16, 1954, Gorman telephoned Francis J. Dooley, in- dustrial relations director for Allied Maintenance Corporation and affiliated corpora- tions including Allied Aviation, and told Dooley about the union meeting. Gor- man told Dooley that the union membership had rejected the contract, that at the union meeting Gemalo and/or Zaza had threatened to assault him (Gorman) 1 and that he (Gorman) was going to file charges with Respondent Union against Gemalo and Zaza for threatening to assault him (Gorman). On or about March 13, 1954, Gorman telephoned Dooley and told him that Respondent Union had found Gemalo and Zaza guilty of threatening to assault him (Gorman) and had suspended them and that Dooley was to take them off the payroll.2 Dooley called the manager of operations at the airport (a supervisor for Allied Aviation) and told him that he (Dooley) had received a call from Re- spondent Union that Gemalo and Zaza were suspended from the Union and were to be taken off the job and that he (the manager) should tell Gemalo and Zaza that "they were finished when they completed that tour of duty." Gemalo and Zaza were discharged effective on or about Monday March 15, 1954. On March 18, 1954, Gemalo filed unfair labor practice charges against Allied Aviation and Respondent Union alleging that he and Zaza had been discriminatorily discharged in violation of the Act. On or about March 25, 1954, Allied Avia- tion reinstated and made whole Gemalo and Zaza. CONCLUSIONS It is clear from the facts outlined above that Respondent Union caused Allied Aviation to discharge employees Gemalo and Zaza for reasons other than their failure to tender periodic dues 3 uniformly required as a condition of retaining membership in Respondent Union and thereby violated Section 8 (b) (2) of the Act. However, an employee who is a union member and who engages in activities which the union considers reprehensible is not immune from all forms of com- pulsion by the union. Under the proviso of Section 8 (b) (1) (A) of the Act which reserves to labor organizations the right to prescribe rules regarding mem- bership, sanctions such as fines or even expulsion from union membership may be imposed to secure compliance with a union's rules and requirements. See Peer- less Tool and Engineering Co., 111 NLRB 853. Accordingly, Respondent Union did not violate the Act by its suspension of Gemalo and Zaza from union member- ship for swearing or cursing at a union meeting. Since the Trial Examiner finds and concludes that the evidence adduced establishes that Respondent Union violated only Section 8 (b) (2) of the Act his recom- mendations will not encompass a requirement that Respondent Union cease and desist restraining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. ULTIMATE FINDINGS AND CONCLUSIONS In summary, the Trial Examiner finds and concludes: 1. Allied Aviation is engaged in commerce or in a business affecting commerce within the meaning of the Act and it will effectuate the purpose of the Act to assert jurisdiction herein. 2. Respondent Union is, and at all times material herein has been, a labor organization within the meaning of the Act. 3. Respondent Union, by the activities outlined in this report, violated Section 8 (b) (2) of the Act and such activities are unfair labor practices within the mean- ing of the Act. 1 Gemalo testified that he did not himself threaten and that he did not know of any "threats of bodily harm addressed to various officials." Neither Zaza nor Gorman testi- fied herein. 8 The findings of fact concerning conversations between Gorman and Dooley are based upon the testimony of Dooley. Gorman did not testify herein. 8 Both employees were paid-up members of Respondent Union. CROWN DRUG COMPANY 117 4. The aforesaid unfair labor practices occurring in connection with the opera- tion of Allied Aviation's business, 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. [Recommendations omitted from publication.] Crown Drag Company and Retail Clerks International Asso- ciation, Local No. 782, AFL, Petitioner. Case No. 17-RC-2010. July 1 2,1955 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Cyrus A. Slater, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. With respect to the bargaining unit, the sole issue in this case is whether a unit limited to the employees in the Employer's divisions 1 and 2, located within the greater Kansas City metropolitan area, is appropriate, as the Petitioner requests, or whether the bargaining unit must necessarily embrace all of the Employer's stores in the States of Missouri, Kansas, and Oklahoma. The Board considered this same issue, on the same facts, and held that the more limited unit could be appropriate for bargaining purposes depending upon the outcome of a separate election.' We see no reason now to alter that earlier deci- sion. Accordingly, we find that all employees employed in the Em- ployer's stores within the Employer's divisions 1 and 2, located within the greater Kansas City metropolitan area, including pharmacists, fouiiain employees, regular part-time employees, relief employees, and employees in the RX prescription center located at 3100 Troost, Kansas City, Missouri, but excluding porters, guards, store managers, assistant store managers, fountain managers, employees of all other divisions, and supervisors as defined in the Act, may constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. However, this unit includes pharmacists, who we have found are professional employees, and we must first ascertain their desires as to 1 Crown Drug Company, 108 NLRB 1126 113 NLRB No. 17.