Automobile Mechanics Lodge No. 701

AUTOMOBILE MECHANICS LODGE NO. 701 577 Automobile Mechanics Lodge No. 701, International Association of Machinists, AFL-CIO and Berwyn Motor Sales , Inc. Case No. 13-CB-778. May 5, 1960 DECISION AND ORDER On November 12, 1959, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not violated the Act as alleged in the complaint and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Respondent filed exceptions and briefs and the Respondent filed a brief in reply to the General Counsel's exceptions.1 The sole issue in this case is whether the Respondent violated Sec- tion 8(b) (1) (A) of the Act by peacefully picketing the Employer's premises to compel the Employer to recognize it as the exclusive bar- gaining representative of the Employer's employees at a time when it did not represent a majority of such employees in an appropriate unit. The Trial Examiner recommended dismissal of the complaint on the ground that the Respondent represented a majority of the em- ployees during the preelection picketing, and that the objective of the postelection picketing was not recognitional. On March 28, 1960, the Supreme Court issued its decision in N.L.R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639 et al. (Curtis Brothers, Inc.),' in which the Court held that such peace- ful picketing by a union, which does not represent a majority of the employees, to compel immediate recognition as the employees' exclu- sive bargaining agent is not an unfair labor practice under Section 8(b) (1) (A) of the Act. Accordingly, as the decision of the Supreme Court in the Curtis case is controlling as to the allegations herein, we shall, in compliance therewith, dismiss the complaint without passing on the Trial Ex- aminer's findings and conclusions. [The Board dismissed the complaint.] MEMBER FANNING took no part in the consideration of the above Decision and Order. ' As stated in the Intermediate Report, the Employer is engaged in the sale and service, of automobiles in Berwyn , Illinois, and annually receives automobiles and other materials valued in excess of $100,000 from outside the State of Illinois Its annual gross sales exceed $500,000. We, therefore, find that the Employer is engaged in commerce and that it will effectuate the policies of the Act to assert jurisdiction . We further find, on the basis of the record, that Automobile Mechanics Lodge No 701, International Association of Machinists , AFL-CIO, is a labor organization within the meaning of the Act. 2 362 U.S. 274. 127 NLRB No. 85. 560940-61-vol. 127-38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDATIONS ISSUES The primary issue herein is whether picketing by Automobile Mechanics Lodge No. 701, International Association of Machinists, AFL-CIO, herein referred to as Local 701, of the premises of Berwyn Motor Sales, Inc., herein called Berwyn, since October 20, 1958, and particularly after an election conducted by the National Labor Relations Board, herein referred to as the Board, on April 10, 1959, constitutes a violation of Section 8(b) (1) (A) of the National Labor Relations Act, as amended, herein called the Act. BUSINESS INVOLVED Berwyn is an Illinois corporation having its offices, salesroom, and garage at Berwyn, Illinois, where it engages in the sale and servicing of automobiles (Berwyn is a De Soto dealer). In the course and conduct of its business Berwyn receives from outside of Illinois, annually, automobiles and other materials valued in excess of $100,000. Berwyn's gross retail sales exceed $500,000 annually. THE FACTS 1 During September 1958, Berwyn's service department employees Ray Moore, Henry Barbo, Wayne R Mayerhofer, and Leonard Hubert (it is not clear from the record whether Frank Kveton was also present) discussed among themselves whether to seek representation through Local 701. Following this discussion Hubert con- tacted Local 701's business representative, William Workman, and scheduled a meet- ing for noon on Thursday, October 9, 1958. At the meeting on October 9, which was attended by Barbo, Hubert, Mayerhofer, and Workman, an application for membership in Local 701 was signed by Mayerhofer and a further meeting was scheduled for noon the next day. Barbo and Hubert were already members of Local 701. About 10 o'clock on October 10, 1958, Berwyn (without prior notice or warning) terminated the services of Hubert and Mayerhofer. These terminations occurred on a Friday. The normal workweek at Berwyn is Monday through Saturday noon and employees usually receive their pay on Tuesdays. At noon on October 10, Business Representative Workman was informed of the terminations of Hubert and Mayerhofer and stated he would undertake to get them reinstated and would seek, on behalf of Local 701, recognition as the bargaining agent. Thereafter, Workman met with officials of Berwyn on several occasions. There is a dispute herein as to the number of such meetings, the dates on which they took place, and the details as to what was said. However, it is clear from the record that several such meetings took place between the date of the terminations and October 20, 1958, and that at these meetings Workman sought reinstatement of Hubert and Mayerhofer and sought recognition as the bargaining agent for all mechanics and bodymen and their apprentices. Workman was not successful in his endeavors. Berwyn refused reinstatement,2 and questioned the majority status of Local 701. Upon the testimony of Arthur Mravic, president of Berwyn, the General Counsel contends that Local 701 claimed a six-man unit which included the greaser, Tony Picek. In the light of the entire record the Trial Examiner is not convinced that Local 701 sought a unit which included Picek and hereby rejects Arthur Mravic's testimony to the contrary and the General Counsel's contention based thereon. The weight of the evidence tends to show that Local 701 claimed the greaser should be excluded from a unit of mechanics and Berwyn claimed he should be included. The record reveals that there were between five and seven (both inclusive) employees in the units discussed and that three of them (Barbo, Hubert, and Mayer- hofer) were members of Local 701. Local 701 claims there were five employees in the unit which it sought and 3 that it represented three of these five. The General 'After the close of the hearing In this matter counsel for Local 701 submitted a motion to correct the transcript. No opposition to said motion has been received and said motion is hereby granted. 'Local 701 contended that the services of Hubert and Mayerhofer had been terminated because of their union affiliation and Berwyn contended that Mayerhofer was laid off due to lack of work and Hubert was discharged for inefficiency. 'Mechanics Hubert, Barbo, and Ray Moore, Bodyman Frank Kveton, and Apprentice Mechanic Mayerhofer. AUTOMOBILE MECHANICS LODGE NO. 7 01 579 Counsel does not dispute the contention that Local 701 represented three of these five. As noted above, the record establishes clearly that Barbo, Hubert, and Mayer- hofer were members of Local 701 at the time of these meetings. The General Counsel contends that there were six employees in the unit (which is the unit ulti- mately approved by this Board) and that Local 701 did not represent more than three of these six and that therefore Local 701 was not entitled to seek recognition. The record is adequate to support a contention that Berwyn sought a unit of six or seven employees and that Local 701 did not represent more than three of these six or seven. As noted above, the Trial Examiner rejects the contention that Local 701 sought a six-man unit. The General Counsel's argument that Local 701 was not entitled to seek recognition will be discussed later in this report. As noted above, Local 701 and Berwyn met several times without reaching agree- ment about the matters in dispute. Because of the failure to reach agreement, picket- ing of Berwyn's place of business began on October 20, 1958 4 The evidence adduced herein establishes clearly that the picketing was for a twofold purpose-to secure reinstatement of Hubert and Mayerhofer and to obtain recognition. Any contention to the contrary is hereby rejected. While the evidence is far from clear as to whether each of these purposes was of equal standing, the Trial Examiner believes and finds that the evidence adduced does not support the contention of the General Counsel that the picketing was not for the purpose of securing reinstatement or that if it was for this purpose this was a minor and insignificant objective. The picket signs which were displayed at Berwyn's place of business from October 20, 1958, to April 10, 1959, read as follows: THIS PLACE ON STRIKE AUTO MECHANICS LOCAL 701 AFL-CIO In November 1958 Berwyn filed a petition for an election and on April 10, 1959, an election pursuant to a Decision and Direction of Election of this Board was con- ducted (see Case No. 13-RM-427, unpublished). In its Decision and Direction of Election (dated March 27, 1959) the Board rejected Local 701's contention that the greaser, Tony Picek, should be excluded from the mechanics unit because the Board found that he "spends at least half of his time in mechanical duties." However, the record herein indicates that between October 10, 1958, and the date of the hearing in Case No. 13-RM-427 (December 15, 1958), the greaser took on additional duties of a mechanical nature-took over some of M^ayerhofer's duties-and that conse- quently the facts which the Board had before it when issuing its Decision and Direc- tion of Election differed from the facts as they existed at the time of the discussion noted earlier in this report. Hubert, Mayerhofer, and Barbo did not cast ballots in the election and the tally of ballots reveals there were four ballots cast and each of them was against Local 701. On April 21, 1959, a certificate of results of election issued certifying "that a majority of the valid ballots has not been cast for any labor organization appearing on the ballot. . Immediately after the close of the election (on April 10, 1959) Local 701 changed the picket signs to read: BERWYN MOTOR SALES EMPLOYS NONUNION MECHANICS HELPERS APPRENTICES AUTOMOBILE MECHANICS LOCAL 701 A.F. of L. C.I.O At the time that Local 701 changed the picket signs Business Representative Work- man told the pickets "we would change the wording on the signs. We would be * Hubert and Mayerhofer began picketing Berwyn's place of business and were joined shortly thereafter by Barbo These three have picketed continuously since October 20, 1958 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD using different signs. We would not be classed as being on strike any longer. We would be merely advertising the fact that Berwyn Motor Sales was nonunion; that they were employing nonunion help. We were doing it with the purpose of inform- ing the public that they were nonunion, in the hope that they would go elsewhere for their service work and do business elsewhere." Concurrently with the change in the picket signs, Don Burroughs (or Burrows), Senior, an official of Local 701 (Business Representative Workman's "boss") tele- phoned Larry Monahan, president of Local 731, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, and a trustee of the Joint Council of Teamsters,5 and told him about the results of the election and the change in the picket signs and asked him (Monahan) to inform the Joint Council of Teamsters that Local 701 was not striking but "were merely advertising the fact that [Berwyn] employed nonunion help and so forth, because [Local 701] wanted to uphold the working conditions and standards of people in other shops" and asked him to inform the Joint Council of Teamsters that Local 701 did not want any de- liveries or pickups stopped or any interference with anyone carrying on normal busi- ness with Berwyn. Monahan passed this information to Ray Schoessling, president of the Joint Council of Teamsters, who in turn had a secretary in his (Schoessling's) office telephone this information to Teamsters locals having direct contact with Berwyn. During the early part of the week beginning April 13, 1959, Business Representa- tive Workman informed Mr. Fulton, an official of the DeSoto Dealers Association (of which Berwyn is a member),6 of the results of the election and the change in the picket signs and that Local 701 "no longer sought recognition" as the bargaining agent for employees of Berwyn. On April 23, 1959, Berwyn filed the charge involved herein and on the same date the Board's Regional Director forwarded a copy thereof to Local 701 and re- quested a written account of the facts and a statement of position. Local 701 re- sponded by letter dated May 28, 1959. Local 701 sent a copy of this letter to Ber- wyn. The letter reads as follows: In respect to the charge filed by the employer in the above-entitled case, this is to inform you that our purpose in picketing the Company premises is to in- form the public that the employees of the employer are nonunion mechanics, helpers and apprentices. Automobile Mechanics Lodge No 701 has numerous agreements with the competitors of this Employer, therefore it is necessary for us to take the action complained of by the Employer if we are going to protect the wages and working conditions which have been negotiated in the locality. We are not attempting to organize the employees of this Employer nor do we seek recognition by the Employer. We have notified other Unions that the purpose of the picketing is to pub- licize that which is stated on the signs carried by our pickets and that said pickets are not for the purpose of keeping people from crossing the picket line. On the basis of decisions of the National Labor Relations Board (Radio Broadcast Technicians, Local Union No. 1264, et al. (WKRG-TV, Inc.), 123 NLRB 507), may we urge that this charge be dismissed. Immediately after the election and the change of picket signs Local 701 instructed its pickets not to discuss the picketing or answer any questions concerning this matter and to refer inquirers to Local 701 business representatives. In June or July 1959 picket Henry Barbo reported to Business Representative Workman that em- ployee Ray Moore had conferred with him (Barbo) and had indicated that three of Berwyn's employees were interested in joining Local 701. Workman told Barbo that Local 701 would not attempt to represent employees of Berwyn and would not ac- cept applications for membership from Berwyn's employees until 1 year after the election-not before April 1960-and that he (Barbo) should relay this information to Moore and other inquirers and tell them that if they wanted more information they should contact him (Workman). Barbo did as instructed by Workman 5During October 1958 when Local 701 was seeking reinstatement and recognition, Local 731 of the Teamsters at the same meetings sought recognition as the bargaining agent for "all parts men and porters . . ." and consequently was well aware of the prevailing situation. 8 Fulton had attended some of the October meetings between Local 701 and Berwyn and was aware of the situation. AUTOMOBILE MECHANICS LODGE NO. 7 01 581 General Counsel's witness, Ray Moore, testified, on direct examination that he met picket Barbo one day-"I can't say whether it was before the last election, or after the last election. I don't know the exact date"-and asked him (Barbo) "how long was he going to walk out there, kidding him" and Barbo answered, "All you got to do is sign your name and we will have the union in, and that's it. We'll quit walking." Moore testified further that later that day Barbo called him and said, "If I [Moore] was interested in joining the Union, I could find a union representative down at a certain restaurant.. . .. During cross-examination Moore fixed the date of this conversation at last summer-about June or July 1959. Later during cross- examination Moore tried to evade answering when this conversation occurred. Still later he testified it could have occurred in March 1959. Under questioning by the Trial Examiner, Moore testified he did not know the month in which this conversa- tion took place and that he could not state for sure whether it was before or after the election but that he thought it was after the election He also testified it did not occur as long ago as March 1959. Moore testified further (in response to questions by the Trial Examiner) that about the same time as the conversation noted above Barbo also told him (Moore) it did not make any difference whether he (Moore) joined Local 701 as he (Barbo) was drawing a substantial sum of money per week "anyhow, the same as if he was working." Local 701's witness, Henry Barbo, denied specifically and generally that he had the conversation alluded to by Moore. Barbo testified that in May 1959 Moore indicated to him that Berwyn's mechanics were interested in joining Local 701 and that he told Moore (then, and after conferring with Business Representative Work- man) that he (Moore) should see Workman about such matters. On the basis of observations of witnesses and analysis of the record herein, especially in the light of Moore's equivocal testimony and uncertain memory, the Trial Examiner believes and finds Barbo a more reliable witness than Moore. There has been no affirmative effort by Local 701 to obtain recognition from Berwyn since November 1958. Conclusions There is no doubt herein that initially one of the purposes of the picketing which followed the October 1958 meeting was to obtain recognition. The General Counsel contends that at this time the Union was seeking recognition in a six- rather than a five-man unit and that, accordingly, the picketing was by a minority union for the purpose of obtaining recognition and, therefore, unlawful under the doctrine an- nounced in Curtis Brothers, Inc., and Alloy Manufacturing Company? The Trial Examiner has already rejected the major premise upon which the General Counsel relies, namely, that Local 701 sought recognition in a six-man unit. While this Board ultimately found the six-man unit (rather than the five-man unit) an appro- priate one for collective-bargaining purposes and Local 701 did not represent a majority of the employees in this unit, only by giving retroactive effect to the Board's finding can it be said that the picketing was by a minority union Absent such retro- active effect it was picketing by a union which represented a majority in the unit sought and the unit sought was not clearly an inappropriate unit. Coupling these facts with the fact that there was an additional major objective of the picketing, which was a legitimate and well-recognized reason for picketing, the Trial Examiner rejects any argument that the picketing was from its inception unlawful because it was by a minority union for recognition. The only remaining issue herein is whether the motive of Local 701 in picketing after the election (after April 10, 1959) was to bring pressure upon Berwyn and its employees and thus force recognition. If so, under Curtis Brothers, Inc, and sub- sequent cases following the Curtis doctrine a violation of Section 8(b)(1)(A) of the Act has been established; otherwise, it has not been proved. One of the normal, foreseeable results of picketing is to induce a willingness or readiness on the part of an employer to grant recognition. However, such normal, foreseeable consequence is a rebuttable presumption. See Radio Broadcast Tech- nicians, Local Union No. 1264, et at. (WKRG-TV, Inc.), 123 NLRB 507. In the present case, the Trial Examiner is of the opinion that the presumption has been rebutted. In the light of the findings of fact made in this report the only evidence supporting the General's Counsel's contention that the object of the picketing after 7 Drivers, Chauffeurs, and Helpers Local 659, et at (Curtis Brothers, Inc ), 119 NLRB 232, and International Association of Machinists, Lodge 942, AFL-CIO (Alloy Manu- facturing Company, et at ), 119 NLRB 307. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 10, 1959, was recognition is the fact that Local 701 continued to picket after the election8 The Trial Examiner believes this insufficient to sustain the General Counsel's burden of proving that the purpose of the picketing was to secure recogni- tion. Furthermore, as noted above, the affirmative evidence adduced herein tends to establish that this was not the object of the picketing after April 10, 1959, and that Local 701's actions after the election were not designed to coerce employees to choose Local 701 as their bargaining agent. In view of the foregoing, it is believed that the complaint, in its entirety, should be dismissed. [Recommendations omitted from publication.] 8 Absent the testimony of Moore (which the Trial Examiner has rejected ) there is no affirmative evidence that Local 701's object in the postelection picketing was to secure recognition. Sears, Roebuck and Company and Local 688, Warehouse & Dis- tribution Workers, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica. Cases Nos. 14-CA-2045 and 14-RC-3463. May 5, 1960 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION On October 23, 1959, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that Sears, Roebuck and Company, the Respondent in Case No . 14-CA- 20451 had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner further recommended that a challenge to the ballot of Jewel Lamb, which was cast in a Board-directed election , be overruled and that her vote be opened and counted.' Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. 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 Inter- mediate Report, the exceptions and brief, and the entire record in the case, and finds merit in Respondent 's exceptions. Accordingly, we adopt the findings, conclusions , and recommendations of the Trial 1 On January 9, 1959, a Board-directed election in Case No. 14-RC-3463 was held, in which the employees at Sears' pool stock warehouse in St. Louis , Missouri , voted on whether they would be represented by Local 688. In this election 24 votes were cast for Local 688 and 23 against Local 688, with 2 ballots challenged. One challenge was over- ruled by the Board, and that ballot was ordered opened and counted. The Board further directed that a hearing be held on the second challenged ballot in the event the counting of the first should not be dispositive of the election. Upon opening and counting said ballot, it was determined that 24 votes had been cast for the Petitioner and 24 against the Petitioner. Accordingly, a hearing on the second challenged ballot was scheduled by an order dated June 11, 1959. Said order also consolidated the representation case with Case No. 14-CA-2045. 127 NLRB No. 84.