Midas International Corp.

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As indicated previously the principal question here is whether the appropriate unit consists of truckdrivers of Tyre and Alhambra. If the truckdrivers of Alhambra were not accreted into the unit of the drivers of Tyre there would be no basis for the claimed violations of Sections 8(a)(1), (2 ), (3), and (5) of the Act. In making a determination as to whether there has been an accretion to a bargain- ing unit all the pertinent factors should be considered . The factors supporting as well as opposing an accretion here have been set forth above. All of them have been con- sidered without producing any clear conviction as to the correct answer. However, considerations opposing an accretion are regarded as more persuasive and lead to a rejection of the proposition that Alhambra drivers were accreted into the Tyre unit of drivers. The expansion of Alhambra and the sharp reduction in the number of Tyre employ- ees with no prospect of a revival of its former manufacturing operations has been regarded as an important factor leading to the finding that the Alhambra bargaining unit designated in an agreement with Local 530 including truckdrivers is appropriate and that Local 420 has no claim on employees of Alhambra who are employed as truckdrivers, as a result of an accretion process. CONCLUSIONS OF LAW 1. Respondents Alhambra and Tyre are corporations engaged in commerce and in business affecting commerce within the meaning of the Act. 2. Local 420 and Local 530 are labor organizations within the meaning of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record it is recommended that the complaint be dismissed. Midas International Corp., Pan Enterprises , Inc., Atlantic Muf- fler, Inc., Queens Muffler, Inc. and Amalgamated Union, Local 15, affiliated with District 5. Case No. 2-CA-10054. Decenn- ber 16,1964 DECISION AND ORDER On October 19, 1964, Trial Examiner John F. Funke issued his Deci- sion in this proceeding, finding that Respondents Atlantic Muffler, Inc., and Queens Muffler, Inc., herein jointly called the Respondents, vio- lated Section 8(a) (5) and (1) of the Act by refusing to bargain with Amalgamated Union, Local 15, and recommending that Respondents cease and desist from the unlawful conduct and take certain remedial action as set forth in the Trial Examiner's attached Decision.' There- after, Respondents and the General Counsel filed exceptions and sup- porting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. I The Trial Examiner also found that Midas International Corp. and Pan Enterprises, Inc., did not participate in or authorize the unfair labor practices of the Respondents found by him, and recommended dismissal of the complaint as to them. 150 NLRB No. 51. MIDAS INTERNATIONAL CORP., ETC. 487 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs of the parties, and the entire record in the case and finds merit in Respondents' exceptions for the reasons set forth below. The complaint herein alleges an unlawful refusal to bargain since March 18, 1964, which is also the date of Respondents' refusal to mediate its differences with the Union. The Trial Examiner has found a refusal to bargain since March 5, 1964, the date of the parties' second bargaining session, assertedly on the basis of an admission to that effect by Respondents. However, we cannot find in the record either an admission of a refusal to bargain or a refusal to bargain in fact within the meaning of the Act. At the March 5 meeting, Respondents refused to submit a counter- offer, explaining that such an offer would not accomplish anything because the Union's demands were excessive, and requesting that the Union first modify its demands. As found by the Trial Examiner, the union negotiators left the bargaining table at this point. The Union made no request for a renewal of bargaining after the March 5 meeting, but did call on the services of the New York State Mediation Board.2 On March 18 the parties met with a mediator from the mediation board, at which time Respondents admittedly refused to mediate the dispute. If the Trial Examiner has construed this admis- sion as an admission of a refusal to bargain, we could not agree. Nor would we, in the circumstances of this case, find Respondents' refusal to mediate to be evidence of a refusal to bargain under Section 8 (a) (5) of the Act. The Act does not, under pain of an 8(a) (5) violation, impose ac- ceptance of mediation as a necessary element of good-faith bargain- ing.3 Respondents' refusal to mediate was not, therefore, per se a refusal to bargain within the meaning of the Act. In the proper context, a refusal to mediate might be a factor indicating an effort to avoid or to frustrate the collective-bargaining process 4 But here, the evidence is wholly inadequate to show that Respondents' negative position on mediation resulted from a rejection of the Union or re- flected a desire to delay or obstruct bargaining. Standing alone, as 2 The Trial Examiner has found that the Union, in seeking to mediate the dispute, indicated its belief that the negotiations had neither been deadlocked nor terminated as a result of the March 5 meeting. 3 Section 8(d) of the Act requires only the notification of Federal and State mediation agencies as a condition precedent to terminating or modifying a collective-bargaining agreement. 4 See, e g , Greater New York Broadcasting Corporation, 48 NLRB 718, 742, 768-769 ; The H. H. Ritzwoller Company, 15 NLRB 15, 25-26, enfd. with modification 114 F. 2d 432 (C.A. 7). 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the record shows it does, Respondents' refusal to mediate was not inconsistent with a genuine acceptance of the Union as the employees' bargaining representative, and a willingness to meet with the Union on request and bargain in good faith for an agreements In short, the record does not establish that Respondents refused to bargain with the Union in violation of the Act. Accordingly, we shall dismiss the complaint.0 [The Board dismissed the complaint.] 5 See Pool Manufacturing Company, 70 NLRB 540, 550 footnote 11. Cf. N.L.R.B. v. Columbian Enameling & Stamping Co., Inc., 306U. S. 292, 297-299. 6 We therefore find it unnecessary to consider the Trial Examiner 's comments pertain- ing to matters which are extraneous to those discussed herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed June 4 , 1964, and an amended charge filed July 8, 1964, by Amalgamated Union, Local 15, affiliated with District 5, herein called Local 15, against the above-named Respondents, the General Counsel issued- a complaint alleg- ing Respondents refused to bargain with Local 15 in violation of Section 8(a)(5) and (1 ) of the Act. The answer of Respondents denied the commission of unfair labor practices and, as affirmative defenses, asserted Local 15 broke off bargaining negotiations , threatened Respondents with charges of unfair labor practices, engaged in conduct which was not compatible with its status as a bargaining representative and that Respondents Atlantic and Queens were not engaged in commerce within the meaning of the Act.1 This proceeding, with the General Counsel and the Respondents represented, was heard before Trial Examiner John' F. Funke at New York, New York, on Septem- ber 1, 1964.2 At the conclusion of the case the General Counsel engaged in brief oral argument and the parties were given until October 7 to file briefs. A brief was received from the Respondents on October 5. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENTS Respondent Midas is an Illinois corporation having its principal place of business at Chicago, Illinois, where it is engaged in the manufacture , sale, and distribution of mufflers, tailpipes, and related products . During the past year Midas sold and dis- tributed products valued in excess of $50,000 from its various places of business to States of the United States other than the States in which said places of business were located and to foreign countries. Respondent Pan is a Delaware corporation having its principal place of business at Chicago, Illinois. Midas is the sole stockholder of Respondent Pan. Respondent Atlantic is a New York corporation having its principal place of busi- ness in the Borough of Queens , City and State of New York, where it is engaged in the retail sale and distribution of exhaust systems, shock absorbers , and other related products. Pan is the sole stockholder of Atlantic. Respondent Queens is a New York corporation engaged in the retail sale and dis- tribution of exhaust systems, shock absorbers , and related products . Pan is the sole stockholder of Queens. Respondents Pan, Atlantic, and Queens admit that certain of their officers and directors are common to each of these corporations. I find the Respondents Midas, Pan, Atlantic, and Queens to be a completely integrated enterprise engaged in commerce within the meaning of the Act. 1 The General Counsel's motion to strike the affirmative defenses was denied. 2 Unless otherwise noted all dates refer to 1964. MIDAS INTERNATIONAL CORP., ETC. 489 H. LABOR ORGANIZATION INVOLVED Local 15 is a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. The facts The only respondents directly involved in this proceeding are Respondents Atlantic and Queens. After the opening of the hearing the parties submitted a stipulation much of which is relevant to the issues herein. (General Counsel's Exhibit No. 2.) This stipulation reads: IT Is HEREBY STIPULATED AND AGREED by the undersigned parties that: 1. All installers, including the assistant manager, employed by Atlantic Muffler, Inc., herein called Atlantic, at its store at 72-09 Queens Boulevard, in the Borough of Queens, and City and State of New York, exclusive of supervisors as defined in Section 2(11) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151 et seq., herein called the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. All installers, including the assistant manager, employed by Queens Muf- fler, Inc.; herein called Queens, at its store at 137-07 Northern Boulevard, in the Borough of Queens, and City and State of New York, exclusive of vacation replacements and all supervisors as defined in Section 2(11) of the Act, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. On January 24, 1964, a majority of. the employees in the unit described above in paragraph 1, by a secret election conducted under the supervision of the New York State Labor Relations Board, herein called SLRB, designated and selected Amalgamated Union, Local 15, affiliated with District 5, herein called the Union, as their representative for the purposes of collective bargaining with Atlantic, and on January 30, 1964, SLRB certified the Union as the, exclusive collective bargaining representative of the employees in said unit, and at all times since said date, the Union, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in said unit for the purposes of collective bargaining. 4. On January 24, 1964, a majority of the employees of Queens, in the unit described above in paragraph 2, by a secret ballot election conducted under the supervision of SLRB, designated and selected the Union as their representative for the purposes of collective bargaining with Queens, and on January 30, 1964, SLRB certified the Union as the exclusive collective bargaining representative of the employees in said unit, and at all times since said date, the Union, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in said unit for the purposes of collective bargaining. 5. On February 7, 1964, a meeting was held at the office of Nathan Gold- man, attorney for Atlantic and Queens. The purpose of this meeting was to negotiate the wages, hours and other terms and conditions of employment of the employees in the units described above in paragraphs 1 and' 2. Nathan Goldman and Marc Vosk, Vice-President of Atlantic and Queens, represented Atlantic and Queens. Nathan Nass, President of Local 15, Benjamin Ross, Gen- eral Manager of Local 15, and Oliver Adkins, an employee of Atlantic, repre- sented the Union. 6. On March 5, 1964, a meeting was held in the office of Nathan Goldman for the same purposes as the meeting described above in paragraph 5 and attended by the same individuals. 7. Midas International Corp. is a Delaware corporation. 8. Copies of the following documents have been examined and initialed by the parties to this Stipulation and are stipulated to be authentic: (a) The SLRB certifications described above in paragraphs 3 and 4. (b) List of names of officers and directors of Midas International Corp. and its principal subsidiaries including Atlantic, Queens and Pan Enter- prises, Inc. (c) The Decision and Order of SLRB in the following cases: (1) West Farms Service Center, 23 SLRB No. 27 (2) Max Rosenstock, Inc., 23 SLRB No. 47 (3) Akap, Inc. operating Aly's Hat Box, 24 SLRB No. 2 (4) Commack Car Wash, Inc., 26 SLRB No. 59 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (5) North Shore Car Wash, Inc., 26 SLRB No. 60 (6) Charles Eagle Holdings, Inc., 26 SLRB No. 65 (7) Geoghan & Harrs, Inc., 27 SLRB No. 11 (d) Title 18, U.S.C., Sec. 1951 (e) Section 380, New York State Penal Law (f) Opinion of New York Supreme Court in Yellin v. Schaefer, 46 LRRM 2723. (g) Excerpts of examination of Benjamin Ross in Yellin v. Schaefer, 46 LRRM 2723. 9. This Stipulation shall be part of the record in the hearing in this case and findings may be made on the basis of this Stipulation and the facts herein set forth. However, this Stipulation is entered into without prejudice to the right of any party to object at the hearing to the admission in evidence of any docu- ment or record referred to in this Stipulation on any ground other than authen- ticity and of any fact on the grounds of irrelevancy or immateriality, and with- out prejudice to the right of any party hereto to introduce additional evidence material to the issues in this case, whether or not such issues are dealt with or otherwise touched upon by the Stipulation. Nathan Nass testified that at the first meeting between the parties above referred to they "spoke in general about contracts and the union" and bargained. Local 15 submitted a list of conditions which Vosk said he would have to refer to Chicago. (The bargaining concerned both the Atlantic and Queens units.) Vosk testified that after the question of identities was resolved Ross asked him if he represented Midas nationally and told him that he (Ross) was anxious to represent the Midas shops all over the country. Vosk stated that he represented only Atlantic and Queens and Ross told him he had two forms of contracts. Ross then listed his demands. Vosk stated that after Ross left the room at the conclusion of the meeting, he returned and told Vosk that if he "could deliver the other Midas shops, he would give me a favorable contract." Before the next meeting Vosk sent Local 15's demands to the Chicago auditors who told him they were to high. Nass testified that at the second meeting, held March 5, Respondents said the demands were too high and either he or Ross asked for a counteroffer. When they were told there was no counteroffer the union negotiators left. Vosk testified that at the second meeting he and Goldman showed the proposed contract to the union negotiators and said they thought the demands excessive. When a counteroffer was requested, Vosk told them he did not think that any counteroffer would be reasonable in view of the demands and suggested modified demands first be submitted. At this point Ross threatened to file unfair labor practices against Respondents and negotiations were terminated. Vosk's exact testimony at this point is important. It reads: . And we asked that they instead come to us with other demands, with another series of demands which were more reasonable. And if they came to us with another series of demands, we would then discuss them. At this point the union said, no, they would not. They insisted on a counter-offer. And what then transpired, as I recall, was that Mr. Ross then said that he would charge me or the company with unfair labor practices, and that he had-I'm not quoting him exactly-that he had enough on us to hang us, and that I or the company had offered to buy him off, or some such thing. And I then looked at Mr. Goldman, he looked at me. We sort of-at that point I think we terminated it and they walked out. TRIAL, EXAMINER: That was your last actual collective bargaining conference? I'm not referring to the other conferences with or before the mediator or a state proceeding. This was your last conference confined to the immediate parties? THE WITNESS: Yes. Q. That meeting terminated after that unfair labor charge was made by Mr. Ross? A. That's right. Subsequently the parties met with a mediator for the New York State Labor Relations Board and counsel for the Respondents stipulated at this hearing that Respondents refused to mediate the dispute. These are the facts upon which the dispute rests. B. Conclusions Since Respondents admit that they refused to bargain with Local 15 after it refused to modify its demands on March 5 and at all times thereafter the only issue remaining MIDAS INTERNATIONAL CORP., ETC. 491 is whether or not Respondents' affirmative defenses serve to defeat the General Coun- sel's primary case. Two of the four defenses have already been disposed of adversely to Respondents .3 The first of the remaining defenses alleges that Local 15 refused to modify its demands and abruptly terminated negotiations. It is true that the union negotiators left the table when Respondents refused to submit a counteroffer on March 5. (Nass' testimony as to this meeting does not differ substantially from that of Vosk.) I am unwilling, however, to find that Local 15 refused to engage in collective bargaining by so leaving. This was only the second meeting, the position of the parties had not become fixed, no strike warning was issued, and while I do find that Ross threatened to file unfair labor practice charges against Respondents it is well settled that a Respondent is obligated to bargain even though such charges have been filed. The fact that Local 15 sought to use the offices of a State mediator indicates that it had not concluded that negotiations had been terminated nor that an impasse had been reached. It may have been a tactical maneuver of doubtful ethics but ethics are a stranger to labor-management problems. In any event it does not seem that a finding of a refusal to bargain should rest on an interruption of nego- tiations at so early a stage. The parties must be given some latitude for thrust and parry before either should be made subject to a Board order. The second defense poses a problem that has long plagued the Board. A reading of the stipulated proceedings before the New York State Board will establish that Local 15 is not the kind of labor organization which any governmental agency would willingly endorse. To permit this local to use the processes of the Board is to permit an abuse of those processes. Nevertheless nothing is better established than that the Congress has given the Board no discretion in this area. The case cited by Respond- ents fortify this unhappy conclusion. In Herbert Bernstein, et al., d/b/a Laura Modes Company, 144 NLRB 1592, the union, Local 65, Retail, Wholesale and Department Store Union, AFL-CIO, engaged in flagrant misconduct including brutal attacks upon Respondent's officers, but the Board held that such misconduct did not extinguish the employees' rights to bargain through the union. (The Board cited N.L.R.B. v. Remington Rand, Inc., 94 F. 2d 862 (C.A. 2); Kohler Corp., 128 NLRB 1062.) The Board did withhold the issuance of a remedial bargaining order until District 65 became certified pursuant to a Board election, a procedure which would be recom- mended herein except for the fact that Local 15 has already been certified by the New York State Board. In Alto Plastics Manufacturing Corporation, 136 NLRB 850, the Board ordered and directed an election despite the fact that one Anthony Doria, "consultant" to the Petitioner, Labor Local 886, had, according to the McClellan committee, "misused his position, defrauded the union's membership, and played a key role in the infiltration of gangsters and racketeers into that union." The Board expressed its dilemma, page 853: It must be remembered, however, that the Board administers a statute, and is duty bound to concern itself solely with those matters which are within the scope of the statute, and to exercise only those powers which Congress invested in the Board. We believe that the matters alleged by the Intervenor in support of its contention are outside the Board's statutory competence and that the Board is therefore without power under the Act to remedy them. The allegations made by the Intervenor, which it sought to prove through the records and documents it had subpenaed, concern improper or,corrupt practices in the administration of internal union affairs. In titles I through VI of the Labor-Management Reporting and Disclosure Act of 1959, Congress expressly dealt with such matters. It is particularly significant that the remedies pro- vided in the LMRDA were given to individual employees directly, and to the public through the intervention of the Secretary of Labor or the Department of Justice. The theory underlying this type of remedial legislation is not to "illegalize" the organization itself, but to afford protection to all parties con- cerned by creating specific Federal rights and remedies whereby the activities of the organization and its officers and agents are regulated and subjected to judicial review in the vindication of those rights. Had Congress desired to strike directly at the organization itself, Congress would have said so. 8It has been found and Respondents conceded at the hearing that , they are engaged in commerce within the meaning of the Act. Based on the testimony of Nass that Local 15 represents employees of employers and engages in collective bargaining on their behalf it was found that Local 15 is a labor organization within the meaning of the Act. N.L.R.B. v. Cabot Carbon Compdny, and Cabot Shops, Inc., 360 U.S. 203. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The only remedy the Board suggested was that it would entertain petition to revoke the certification if the Petitioner failed to fulfill its statutory obligation as exclusive bargaining representative. In Taxicab Drivers Union, Local 777, et al. (Crown Metal Manufacturing Com- pany), 145 NLRB 197, the Trial Examiner recommended that Respondent Taxicab Drivers Union, Local 777, IBT, be barred from further use of the Board's process after the thugs and hoodlums who controlled the local had attacked and beaten a witness at a Board hearing .4 The Board did not adopt the recommendation. In a case involving a sister local of the Charging Party herein, Local 55, the Board issued a remedial bargaining order against Respondent in Edward Fields, Incorporated, 141 NLRB 1182. In that case the Trial Examiner reviewed the criminal record of Benjamin Ross (more familiarly known as "Benny the Bug") and the serious allega- tions respecting the management of the internal affairs of the local. He rejected all contentions with respect to the Charging Party on the authority of Alto Plastics Manufacturing Corporation, supra. It seems clear that under the present state of the law any thug, gangster, or murderer who is at large can establish himself as a labor organization and, if designated as exclusive bargaining representative by a majority of the employees in an appropriate unit, can obtain Board certification and a remedial bargaining order. The statute, as drafted, does not permit the Board to deny its processes to criminals and felons.5 The remedy for this scandalous situation rests with the Congress since the Board is powerless to legislate. With the greatest reluctance I find the Respondents Atlantic and Queens have violated Section 8(a)(5) and (1) of the Act. This is the kind of case in which an examiner could accept reversal without chagrin. IV. THE REMEDY Having found that the Respondents Atlantic and Queens have engaged in and are engaging in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Because there is no evidence in this record to establish that Respondent Midas or Respondent Pan participated in or authorized such unfair labor practices, I shall recommend that the complaint be dismissed as to those Respondents. Since the unfair labor practices found herein cannot be attributed to an overriding purpose to frustrate the processes of collective bargaining but rather to a righteous indignation at the conduct of Local 15, the Recommended Order will be confined to the requirements of the case. It shall also be recommended that if Local 15 fails to meet its responsibilities under this order the Board shall entertain a motion to reconsider its order. Upon the basis of the foregoing findings and conclusions and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 15 is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing at all times since March 5, 1964, to bargain in good faith with Local 15 as the exclusive bargaining agent of their employees in the units found appropriate herein, Respondents Atlantic and Queens have engaged in and are engag- ing in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 4. The aforesaid labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] * Cf.'the recommendation of Trial Examiner Maher in Local 456, International Brother- hood of Teamsters, etc., in Case No. 2-CB-3917, 2-CB-844 [Local 456, International Brotherhood of Teamsters, etc. (Strauss Paper Co., Inc.), 149 NLRB 49]. This case has yet to reach the Board. s The processes of democracy are inevitably susceptible to the aberrations of the elec- torate. The citizenry of Boston , sometimes referred to (but only by her native sons) as the "Athens of America," have seen fit to elect as Mayor the Inmate of a Federal penitentiary.