Suffolk Mack, Inc.

SUFFOLK MACK, INC. Suffolk Mack, Inc. and Local 553, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (Suffolk Mack, Inc.) and Local 553, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America. Cases 29-CA-1605, 29-CA-1633, and 29-CB-61'7 Jane 16, 1970 DECISION AND ORDER By Members MCCULLOCH, BROWN , AND JENKINS On November 25, 1969, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respondents had en- gaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative ac- tion, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondents had not engaged in certain other un- fair labor practices alleged in the complaint and recommended that these allegations be dismissed. Thereafter, the General Counsel, the Respondent Employer, and the Respondent Union filed excep- tions to the Trial Examiner's Decision and support- ing briefs, and the General Counsel filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this proceeding 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 ' As the record and briefs adequately present the issues and the positions of the parties, Respondent Employer's request for oral argument is hereby denied In addition , Respondent Employer's alternative request to reopen the record and receive further evidence before a member of the Board, or other Board agent or agency is hereby denied II The Trial Examiner inadvertently referred to Local 553, where it is clear that he meant Local 259, in the first sentence of the eighth paragraph in section 111,C, in the first and second sentences of the ninth paragraph in section III,C, and in the first sentence of the second paragraph in section IV of his Decision , and in section A, 2(f) and section B,2 (b) of his Recom- mended Order In addition , the Trial Examiner, in the first sentence of the second paragraph in section IV of his Decision and in section A,1 (c) of his Recommended Order, referred to the date of the contract that Respondent Employer signed with Respondent Union as April 17, 1969, when the cor- rect date is February 17, 1969 The Trial Examiner, in his first Conclusion of Law, also incorrectly referred to the date that Respondent Employer recognized Respondent Union as being February 5, 1967, when the correct 433 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this proceeding,' and hereby adopts the findings 2 conclusions,' and recommendations of the Trial Examiner with the following addition We agree with the Trial Examiner that Respon- dent Employer violated Section 8(a)(5) of the Act when, as a successor to Liquiservice, it refused to bargain with Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America.4 The record shows that for a period of 15 years the truck mechanics have been bargained for separately. A 1966 supplemental agreement applicable only to the truck mechanics was made a part of an agreement that Local 553 and Liquiservice had covering the petroleum truck- drivers. We construe this supplemental agreement as accomplishing nothing more than providing possibly for joint bargaining thereafter. We there- fore conclude that the truck mechanics constituted a separate appropriate unit and that in the circum- stances of the case Respondent Employer became a successor in interest to their former employer. Furthermore, it is conceded by Respondent Em- ployer that, at the time of its acquisition of Liquiservice, it knew that the truck mechanics were represented by Local 553, and it is not disputed that it knew that all of the truck mechanics were members of Local 553. Shortly after the acquisi- tion, Local 553 demanded that Respondent Em- ployer bargain with it as the representative of these mechanics. In addition, there is no question that, in the course of events which followed this demand, the mechanics expressed a desire to retain member- ship in Local 553 because of pension benefits which had accrued to them over the years; that Respondent Employer unequivocally informed them that it would not have anything to do with Local 553; and that both Respondent Employer and Respondent Union coerced the mechanics into signing authorization cards on behalf of Respon- dent Union by threats that otherwise they would be replaced, thus effectively destroying Local 553's date is February 4, 1969 The Trial Examiner, in section II1,B of his Deci- sion, stated that Peter Gillespie testified that he had engaged in negotia- tions with Frank Clarke for the purchase of the 1575 Patchogue Road pro- perty from sometime in June 1968, when the record shows that the discus- sions did not begin until September 1968 Finally, the Trial Examiner inad- vertently omitted the word "not" after the word "complaint " in the last sentence of his Recommended Order We hereby correct these errors ' The Trial Examiner inadvertently failed to make a formal conclusion of law that Respondent Employer warned its employees that it would not recognize and bargain with Local 553, and warned and directed them to refrain from remaining members of Local 553 in violation of Section 8(a)(1) of the Act The Trial Examiner also inadvertently failed to make a formal conclusion of law that Respondent Union threatened to cause the discharge of employees if they did not join Respondent Union in violation of Section 8(b)(I)(A) and (2) of the Act We hereby correct these omis- sions and have modified the Recommended Order accordingly ' Hereinafter called Local 553 183 NLRB No. 55 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD status as majority representative of the mechanics. In light of the foregoing, we find that, even in the absence of an 8(a)(5) violation, a bargaining order would nevertheless be required to remedy the 8(a)(1) violations committed by Respondent Em- ployer. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below, and hereby orders that the Respondent, Suf- folk Mack, Inc., Port Jefferson Station, New York, its officers, agents , successors, and assigns, and the Respondent, Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, New York City and Long Island, New York, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as paragraphs A, 1 (e) and (f), and renumber paragraph A, 1 (e) as paragraph Al- 1(0.- "(e) arning its employees that it would not recognize and bargain with Local 553. "(f) Warning and directing its employees to refrain from remaining members of Local 553." 2. Add the following as paragraph B, 1 (d) and renumber paragraph B, 1 (d) as paragraph B, I (e): "(d) Threatening to cause the discharge of em- ployees if they did not join Local 259." 3. Add the following after the last paragraph in Appendix A: WE WILL NOT warn our employees that we would not recognize and bargain with Local 553. WE WILL NOT warn and direct our employees to refrain from remaining members of Local 553. 4. Add the following after the last paragraph in Appendix B: WE WILL NOT threaten to cause the discharge of employees if they do not join Local 259. MEMBER JENKINS, concurring in part, dissenting in part: I concur in the findings herein in that Respon- dent Employer violated Section 8(a)(1), (2), and (3) of the Act and that Respondent Union violated Section 8(b)(1)(A) and (2) of the Act. I do not agree with the majority's conclusion that the Respondent Employer was a successor to Liquiser- vice and as such violated Section 8(a)(5) in its refusal to bargain with the Charging Party. Liquiservice, prior to Gillespie's acquisition of its tools, equipment, and assets, was engaged in the sale and distribution of petroleum products. In con- nection with such enterprise it maintained its own repair shop for the servicing of its delivery trucks and those of its petroleum customers. Prior to the final acquisition of its properties by Gillespie, Liquiservice notified all of its customers that it was discontinuing all operations. While it is true that Gillespie, through one of his solely owned enter- prises, shortly after acquisition of Liquiservice's physical assets reopened the repair shop, such shop became the part of a totally different enterprise. Gillespie is engaged in the sale and servicing of Mack trucks through another one of his solely owned enterprises known as Minneola Mack. The reopened repair shop was operated for the purpose of servicing and repairing trucks for customers of Minneola Mack. Under these circumstances, I can- not agree that there existed that degree of continui- ty in the employing enterprise, Suffolk Mack, that would establish a successor-employer relationship.5 I would dismiss the 8(a)(5) allegation of the com- plaint. ' Travelodge Corporation , 182 NLRB 370, Thomas Cadillac, Inc, 170 NLRB 884 (for reasons noted in my concurring opinion ), Chemrock Cor- poration , 151 NLRB 1074, 1085 (for reasons noted in my dissent) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: Upon a charge in Case 29-CA-1605 filed March 17, 1969, and a charge and an amended charge in Case 29-CA-1633 filed April 16 and June 16, 1969, by Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, herein Local 553, against Suffolk Mack, Inc., herein Suffolk Mack, the General Counsel issued a complaint alleging Suffolk Mack violated Section 8(a)(1), (2), (3), and (5) of the Act. Upon a charge and amended charge in Case 29-CB-617 filed April 16 and June 16, 1969, by Local 553 against Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, herein Local 259, the General Counsel issued a complaint alleging Local 259 violated Section 8(b)(1)(A) and (2) of the Act. Said cases were consolidated by order of the General Counsel dated June 27, 1969. This proceeding, with all parties represented, was heard by me at Brooklyn, New York, on September 10, 11, and 12, 1969. At the conclusion of the SUFFOLK MACK, INC. hearing the parties were given leave to file briefs and briefs were received on October 30, 1969. Upon the entire record in this case, and from my observation of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS 1. THE COMPANIES INVOLVED Frank Clarke, d/b/a Petroservice, was an in- dividually owned business located at 1575 Patchogue Road, Port Jefferson Station, Long Island, New York, where it was engaged in the petroleum transportation business for some 30 years. At a time not fixed it gradually became en- gaged in repair work on heavy transportation equipment such as trucks, trailers, and tractors. Liquiservice, Inc., was formed in June 1968 by Clarke to take over the business of Petroservice and it purchased the physical assets, exclusive of land and buildings, of Petroservice. Liquiservice continued both the transportation business and the repair business at the same location at Port Jeffer- son Station.' Suffolk Mack is a New York corporation owned and operated by Peter Gillespie which, through Bulldog Enterprise, Inc., another Gillespie corpora- tion, purchased the assets of Liquiservice at Patchogue Road, Port Jefferson Station, where it continued to operate a repair service. According to the stipulation of the parties, Suffolk Mack purchased tools, equipment, and supplies valued in excess of $50,000 during a representative year from Minneola Mack Distributors, Inc., herein Minneola Mack, a Gillespie corporation engaged in the sale and repair of Mack trucks at Hicksville, New York. It was stipulated that the parts and equipment purchased by Suffolk Mack from Minneola Mack were shipped directly to Minneola Mack from points outside the State of New York. I find that Suffolk Mack is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 553 and Local 259 are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue The chief issue presented is whether Local 553 or Local 259 was the lawful bargaining agent of the mechanics employed by Liquiservice and hired by ' The names Petroservice and Liquiservice were used interchangeably in the testimony and are so used here ' There had been contracts in effect between the parties from November 1960 Local 259 had been certified by the Board as exclusive bargaining agent for Minneola Mack's shop employees following an election held Sep- 435 Suffolk Mack after its acquisition of the business. The other issues will pivot on the determination of this issue. B. Background The six mechanics, and the entire dispute centers on six (or five) mechanics, employed by Petroser- vice and later by Liquiservice were covered by a collective-bargaining contract between Petroservice and Local 553 which expired January 31, 1969. (G.C.Exh. 7-a and 7-b.) General Counsel's Exhibit 7-a is an area agreement covering Petroservice fuel oil chauffeurs. Exhibit 7-b is a supplemental agree- ment covering Petroservice's truck mechanics. The unit description in Exhibit 7-b reads: 1. This SUPPLEMENTAL AGREEMENT is applicable to TRUCK MECHANICS and is hereby made a part of the Agreement between the Union and the Employer covering Fuel Oil Chauffeurs. The employees at Minneola Mack were covered by a collective-bargaining agreement between Local 259 and Minneola Mack, dated December 26, 1968, and expiring February 16, 1970.2 (Resp. Union Exh. 4.) This contract contains the following provision, "Article II, Coverage": Section 1. The Employer recognizes the Union as the sole and exclusive bargaining agent for all service and parts employees in its service stations located at 880 South Oyster Bay Road, Hicksville, New York, except office em- ployees, salesmen , executives, department heads, foremen and all other supervisory em- ployees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effective- ly to recommend such action. Both contracts contained union-security clauses. Peter Gillespie testified, credibly, that he had en- gaged in negotiations with Frank Clarke for the purchase of the 1575 Patchogue Road property from some time in June 1968. He knew that Petroservice had a contract with Local 553 expiring January 31, 1969.3 By various transactions title to all of Liquiser- vice's property and assets were sold to Bulldog En- terprises, Inc., a corporation controlled by Gil- lespie . (G.C. Exh. 2, 3, 4, and 5.) The business operated by Liquiservice was sold by Bulldog to Suffolk Mack and the rolling stock was sold by Suf- folk Mack to Minneola Mack. Suffolk Mack, although there is some dispute as to this, continued to operate only the repair business purchase from Bulldog. Gillespie testified that the incorporation of Suffolk Mack was not formally completed until tember 21, 1960 3 Acquisition of the assets of Petroservice by Liquiservice , Inc , did not affect the contractual relationship between Clarke d/b/a Petroservice and Clarke as owner of Liquiservice with Local 553 427-258 O-LT - 74 - 29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 20 but that it commenced operations at 1575 Patchogue Road on February 10, 1969. In any event on January 22, 1969, Clarke sent to the customers of Liquiservice the following letter (G.C. Exh. 6): Dear This will advise you that effective January 31, 1969 I am ceasing all operations. I am selling all the assets of my business and will no longer operate as Petroservice. In view of the fact that I have been serving your needs for some years, I feel that I should advise you in advance of the foregoing. You may be interested to know that the peo- ple who have bought my property intend to operate a truck repair service, and you may be interested in continuing to have them serve your needs. It is contemplated that the new people will be in operation approximately February 10, 1969. I wish to thank you for the relationship we have had over the years and for the opportuni- ty to serve you. Very truly yours, It is to be noted that this letter refers to a con- tinuance of the truck repair service only. C. Coercion of Suffolk Mack Employees Frank J . Wenner testified that he had been em- ployed by Petroservice for approximately 22 years as a truck mechanic and that he was presently em- ployed by Suffolk Mack at the same location in the same capacity . While the record shows that he left the employment of Petroservice on January 1, 1969, I believe the correct date to be January 31, 1969. In any event a notice was posted by Clarke stating that he was going out of business on January 31. The notice was posted about 1 week before that date and a few days later Vic Chicola , service manager of Minneola Mack , interviewed all of the mechanics previously employed by Petroservice to discover whether they wished to continue their em- ployment with Suffolk Mack . Wenner was told the following day that his employment would be con- tinued' On or about January 31 Chicola met with the Petroservice mechanics and told them there would be a 1-week interval before they would go to work and that Bill Slater would be their foreman. (The employees started to work February 10.) Chicola also told them that they would have to join Local 259 and that he would not have anything to do with Not only Wenner but five of the six mechanics employed by Petroser- vice (Liquiservice) were retained by Suffolk Mack, including Bill Slater, Local 553. None of the Petroservice employees made any response to this condition. Fred Velez, a delegate for Local 259, explained the contract to the five mechanics at a meeting held at a Port Jefferson restaurant on February 3. (Slater was not present at this meeting.) Wenner did not testify to any coercive statements made by Velez at this meeting. On cross-examination, how- ever, Wenner testified that Velez told them Local 259 had a contract with Minneola Mack which stated "they would represent any new shops which were opened." John Blasko testified that he had been employed as a mechanic by Petroservice for 24 or 25 years and that he was a member of Local 553 while so employed as were all mechanics. On or about January 31, Clarke told them at a meeting attended by Slater and Chicola that he was getting rid of the place. Chicola told them Minneola Mack would hire five of the six mechanics and interviewed them individually. The next day he notified five of them they would be hired.5 Later Chicola and the mechanics had a meeting and Chicola told them, they would have a different union , Local 259, and that he would send a delegate out-but that Local 259 was the only union Minneola Mack had. The mechanics later had a meeting with Velez at the Pelican Restaurant. On cross-examination Blasko testified that the mechanics were told they had to ratify the contract with Local 259 or be out of a job. This was at a meeting conducted by Chicola in the back of the shop, the date unfixed. Chicola told them if they did not ratify, employees from Minneola Mack would be employed at Suffolk Mack. Victor Chicola, service manager for Minneola Mack, testified that he discussed employment possi- bilities at Suffolk Mack with Wenner on January 31 and on that date interviewed the other mechanics employed by Liquiservice. At this interview he did not discuss the rival union problem. The following week Chicola again saw Wenner and Wenner ac- cepted employment with Suffolk Mack. There was, according to Chicola, no discussion of Local 259 and no discussion of wages. When the five mechanics had all been hired and had accepted, a group meeting was held to discuss the new opera- tion. Chicola denied that at any of these meetings he told either Wenner or Blasko either individually or in a group that they would have to join Local 259 to work for Suffolk Mack or that he would not have anything to do with Local 553. He also denied telling Blasko that if he did not join Local 259 em- ployees from Minneola Mack would be brought over to do the work. - - -- Fred Velez, delegate for Local 553, had represented Local 553 in its relations with Min- neola-Mack for a number of years. He testified that foreman of the mechanics for Petroservice ' The mechanic not hired was Paul Goetz SUFFOLK MACK, INC. prior collective-bargaining contracts with Minneola Mack had covered operations not only at Hicksville but also a repair shop operation at Middle Island, an operation which was shut down several years ago, or prior at least to acquisition of Minneola Mack by Gillespie. When Velez first heard of the possibility of another Minneola Mack operation he went to Gil- lespie , explained that Local 553 had represented the employees at Middle Island, and told him Local 553 would claim the right to represent the new shop by virtue of accretion. Velez met with the mechanics of Liquiservice (not yet Suffolk Mack) in early February and told them Local 553 represented employees at Minneola Mack and would want to represent them. The mechanics ar- ranged for a second meeting with Velez at the Pelican Club. Velez explained the benefits of the Minneola Mack contract to them and a demand was drawn up to be presented to Gillespie. Authorization cards designating Local 259 were signed at this meeting . At a later meeting with Gil- lespie, Chicola, and Thomas Morgan, Gillespie's at- torney, Velez presented the cards. A recognition agreement was then signed (Resp. Union Exh. 5). At the Pelican Club meeting Wenner was elected shop steward for Local 259 and Wenner, according to Velez, told him they were happy to have Local 259 represent them. A contract was drawn for presentation to Gillespie following the lines of but not identical to the Minneola Mack contract. (The wage rates and shift differentials differed.) There was some discussion of pension rights acquired by the mechanics under their Local 553 contract but the discussion appears inconclusive except for the fact that the rights would be lost.6 On February 17 a collective-bargaining agree- ment (G.C. Exh. 9) was executed between Local 259 and Suffolk Mack, Inc., covering all service and parts employees at Suffolk Mack's service sta- tion at 1575 Patchogue Road, Port Jefferson. On the basis of the testimony of Wenner and Blasko, which I credit, I find that Chicola as a su- pervisor and agent of Minneola Mack' actively sol- icited membership in Local 259 among the mem- bers of Local 553 by telling them there would be no other union, that they would have to join Local 259, and that if they did not ratify the contract with Local 259 they would be out of a job and em- ployees from Minneola Mack would be transferred to 1575 Patchogue Road.8 D. The Demand for Recognition by Local 553 and the Refusal - The evidence respecting the demand for recogni- tion by Local 553 for a unit of the former em- 'This discussion establishes that Velez knew the employees had been represented by Local 259 if any doubt as to such knowledge existed ' Chicola testified that he was in complete charge of the servicing depart- ment of Mmneola Mack While at this time Suffolk Mack was as yet unborn I find that his activity as agent of Minneola Mack was actually on behalf of Suffolk Mack which accepted the fruits of his efforts and responsibility for 437 ployees of Liquiservice (Petroservice) and the refusal of this demand by Suffolk Mack or its in- terim predecessors is documentary and not subject to contradiction. On January 24, Local 553 sent to Peter Gillespie the following telegram (G.C. Exh. 8-a): THE UNDERSIGNED LOCAL UNION IS THE COLLECTIVE BARGAINING AGENT OF THE EMPLOYEES OF PETROSERVICE, PORT JEFFERSON STATION, NEW YORK. WE HAVE HEARD REPORTS THAT YOU HAVE CONTRACTED FOR PURCHASE OF THIS BUSINESS . IF THIS INFORMATION IS ACCURATE, WE LOOK TO YOU AS EQUITABLE OWNER OF THE BUSINESS TO NEGOTIATE ANY IMPACT THIS TRANSACTION MAY HAVE ON TERMS AND CONDITIONS OF EMPLOYMENT OF PETROSERVICE EMPLOYEES. On January 27, Thomas O. Morgan, attorney for Gillespie, replied to Local 553 (G.C. Exh. 8-b) as follows: Your communication of January 24th, 1969, addressed to P. Gillespie, Mineola Mack Dis- tributors, Inc., has been forwarded to this of- fice, as counsel for such concern, for reply. This is to advise that the "reports" to which reference is made in your Telefax communica- tions are completely without foundation in fact. Mineola Mack has not contracted for the purchase of Petroservice or any other business, nor is any such transaction in prospect. On January 31, Local 553 telegraphed Bulldog Enterprises (G.C. Exh. 8-c) as follows: BULLDOG ENTERPRISES, C/O P. GILLESPIE (REPORT DATE AND TIME OF DELIVERY) 880 SOUTH OYSTER BAY ROAD, HICKSVILLE NEW YORK THE UNDERSIGNED LOCAL UNION IS THE COLLECTIVE BARGAINING AGENT OF THE EMPLOYEES OF PETROSERVICE, PORT JEFFERSON STATION, NEW YORK. WE HAVE HEARD REPORTS THAT YOU HAVE CONTRACTED FOR PURCHASE OF THIS BUSINESS IF THIS INFORMATION IS ACCURATE, WE LOOK TO YOU AS EQUITABLE OWNER OF THE BUSINESS TO NEGOTIATE ANY IMPACT THIS TRANSACTION MAY HAVE ON TERMS AND CONDITIONS OF EMPLOYMENT OF PETROSERVICE EMPLOYEES. On February 4, Thomas O. Morgan replied to Local 553 (G.C. Exh. 8-d) in a letter reading: This will serve to acknowledge your Telefax communication, addressed to Bulldog Enter- prises, c/o P. Gillespie, 880 South Oyster Bay Rd., Hicksville, N.Y. Reference is made therein to an alleged purchase by such corporation of a business identified as Petroservice, Port Jefferson Sta- them ' The inference I draw from this testimony is that Chicola was referring to the existing contract between Minneola Mack and Local 259 The fact that this was not the contract later signed does not bear on the legality of Chicola's remarks 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, New York. There is absolutely no basis in fact for such report. Bulldog Enterprises, Inc. has not contracted to purchase Petroservice or any other business, nor is any such transaction in prospect. On February 14, Local 553 telegraphed Suffolk Truck Sales (G.C. Exh. 8-e) as follows: LOCAL 553, I.B.T. HOLDS YOU AS THE SUCCESSOR OF PETROSERVICE. WE DEMAND THAT YOU RECOGNIZE LOCAL 553 AS THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE OF YOUR EMPLOYEES AND THAT YOU EXECUTE THE COLLECTIVE BARGAINING AGREEMENT NEGOTIATED IN JANUARY 1969 BETWEEN LOCAL 553 AND THE EMPLOYER ASSOCIATION OF WHICH PETROSERVICE WAS AND IS A MEMBER (FUEL INDUSTRY OF NASSAU AND SUFFOLK COUNTIES). No reply was ever apparently received to this tele- gram . On April 1 Local 553 telegraphed Suffolk Mack (G.C. Exh. 8-f) as follows: LOCAL 553, I.B.T. HOLDS YOU AS THE SUCCESSOR OF PETROSERVICE. WE DEMAND THAT YOU RECOGNIZE LOCAL 553 AS THE EXCLUSIVE COLLECTIVE-BARGAINING REPRESENTATIVE OF YOUR EMPLOYEES AND THAT YOU EXECUTE THE COLLECTIVE BARGAINING AGREEMENT NEGOTIATED IN JANUARY 1969 BETWEEN LOCAL 553 AND THE EMPLOYER ASSOCIATION OF WHICH PETROSERVICE WAS AND IS A MEMBER (FUEL INDUSTRY OF NASSAU AND SUFFOLK COUNTIES.) On April 7, Morgan replied to Local 553 (G.C. Exh. 8-g) in a letter reading: Your communication of 1 April, 1969, ad- dressed to Suffolk Mack, 1575 Patchogue Road, Port Jefferson Station, New York, has been referred to this office for reply, in our capacity as counsel for such company. You mention Suffolk Mack in your communication "as the successor of Petro Service." This is completely erroneous and without any founda- tion in fact. You also demand recognition "as the exclusive collective bargaining representative of your employees." We are not aware of any single fact to support your claim for recognition. On the contrary, the employees of Suffolk Mack are covered by a "union shop" provision con- tained in a collective bargaining agreement between Suffolk Mack, Inc., as employer, and Local 259, United Automobile Workers of America, as the authorized collective bargain- ing_agent for all of the employees in the unit. Nothing could be clearer than that Local 553 made repeated and timely demands upon Suffolk 9 If there is any doubt that Bill Slater, foreman for the 'repair shop at Liquiservice , was a supervisor within the meaning of the Act, the credited testimony of Frank Clarke establishes that he was shop supervisor in charge of seeing the work in the shop was carried out, set up the work, ordered the parts, received the orders, assigned the mechanics to their work, occupied a desk , and did not do any repair work himself Slater, after the transition Mack and its interim predecessors for recognition as bargaining representative for the service mechanics acquired by Suffolk Mack from Liquiservice (Petroservice) and that demand was refused. I do not hold that Local 553 was required to make its demand for recognition of the company which might be holding title to the property or busi- ness of Liquiservice at any specific time during the transition period. It is sufficient that Gillespie and his attorney were advised that Local 553 has represented the employees of Liquiservice and was asserting its claim to continued recognition. E. Conclusions The preliminary observation must be made that the issue of the representation of, the five em- ployees involved in this proceeding could have been resolved by the holding of a secret ballot elec- tion. Why the parties have chosen the costly, time-consuming, and generally frustrating path of litigation before the Board and quite likely the courts while the rights of the employees remain un- determined must be left to conjecture. No credit is due any of the parties for so aborting the rights of employees. In view of the findings made herein, supra, the sole question presented is whether the law of suc- cessorship governs disposition of the case. I find it does. The only portion of Liquiservice's business continued by Suffolk Mack was its repair shop, a unit clearly identifiable and distinguishable from its petroleum transportation business. It had its own foreman9 and its own mechanics, all but one of whom were continued in their employment by Suf- folk Mack performing the same general services. The arguments raised to the contrary are conten- tious to the point where they are frequently nonsen- sical. It is true that the mechanics while employed by Liquiservice worked on equipment owned by Liquiservice's petroleum customers to a large ex- tent and that after the transfer they worked largely on Mack trucks owned by customers of Minneola Mack. Truck repair work, however, is truck repair work and I attach no relevance to this tenuous distinction.10 The vital test is whether the "employ- ing industry" remains essentially the same after the transfer of ownership.tt Any reliance which may be placed by Respondents on the fact that Suffolk Mack acquired only a part of the business of Liquiservice I find misplaced. In Quaker Tool and Die, 162 NLRB 1309, the Board held respondent obligated to bargain as a successor employer although it leased only one of the plants covered by the Board's certification. There it found respondent period, occupied the same status with Suffolk Mack 10 Nor do I attach relevance to testimony that the mechanics worked dif- ferent hours after the transfer , that physical changes would be made in the property acquired and speculative testimony as to the ultimate operations of Suffolk Mack vis-a-vis Minneola Mack 11 Johnson Readv Mix Co, 142 NLRB 437,442 SUFFOLK aware of the Board certification and an outstanding bargaining order against the predecessor and here the record establishes that Gillespie, sole owner of both Minneola Mack and Suffolk Mack, was aware of the contract between Local 553 and Petroser- vice. In short I find that the cases rather clearly hold that under the circumstances found here Respondent was obligated to bargain with Local 553 and that by failing to do so it violated Section 8(a)(5) of the Act.12 Also rejected is the argument that the Suffolk Mack unit became a part of the Minneola Mack unit by accretion. The Minneola Mack contract with Local 259 did not provide for accretion of acquired plants and the Suffolk Mack employees were covered by a separate contract with Local 259. Nor was there any subsequent commingling of employees. In the light of the disposition of this issue I find that Respondent Suffolk Mack engaged in viola- tions of the Act by recognizing Local 259 as the collective-bargaining agent of the Suffolk Mack employees, by entering into a contract with Local 259 as the exclusive representative of Suffolk Mack employees, by agreeing to a union-security clause and a dues checkoff clause in said contract, and by deducting initiation fees, dues, and any other financial obligations from moneys earned by its employees and remitting said sums to Local 259. By said actions Respondent Suffolk Mack violated Section 8(a)(1), (2), (3), and (5) of the Act. By soliciting employees of Suffolk Mack to join Local 259 and threatening them with reprisal if they did not join Respondent, Suffolk Mack violated Section 8(a)(1) and (2) of the Act. By entering into a contract with Suffolk Mack which provided for exclusive recognition of Local 259 as exclusive bargaining agent of the employees of Suffolk Mack and which provided for union security and a dues checkoff at a time when Local 259 did not represent an uncoerced majority of the employees of Suffolk Mack, Local 259 violated Section 8(b)(1)(A) and (2) of the Act.ts IV. THE REMEDY Having found Respondents engaged in and are engaging in certain unfair labor practices, it will be recommended that they cease and desist from the same and take certain affirmative action necessary to effectuate the policies of the Act. Having found that Respondent Suffolk Mack vio- lated Section 8(a)(1), (2), (3), and (5) of the Act and Respondent Local 259 violated Section i2 Maintenance Incorporated, 148 NLRB 1299, Laystrom Manufacturing Co , 151 NLRB 1482, enforcement denied on the facts 359 F 2d 799 (C A. 7), N L R B v Auto Ventshade, Inc , 276 F 2d 303 (C A 5), N L R B v Tempest Shirt Manufacturing Company, Inc, 285 F 2d 1 (C A. 5), Chem- rock Corporation , 151 NLRB 1074 " International Ladies' Garment Workers' Union v N L R B ( Bernhard- Altmann Texas Corp ), 366 U S 731 '4 Seafarers International Union of North America, AFL-CIO, 138 NLRB MACK, INC. 439 8(b)(1)(A) and ( 2) of the Act by entering into the contract dated April 17, 1969, at a time when Local 259 did not represent an uncoerced majority of its employees , it shall be recommended that, in addition to the usual remedies required to redress such violations , Respondents jointly and severally make whole all employees employed by Respon- dent Suffolk Mack in the unit found appropriate herein for dues and any other moneys unlawfully exacted from them by reason of said contract from the dates of the payment with interest at the rate of 6 percent 14 I do not, however, feel that this is a case in which the usual remedial order of the Board requiring the setting aside of certain of the provisions of the con- tract between Local 259 and Suffolk Mack may suffice to effectuate on appropriate remedy. At the time Suffolk Mack recognized and entered into a contract with Local 259 there was an obligation, so I have found, to bargain with Local 553. I would therefore recommend that Suffolk Mack , pending bargaining negotiations with Local 553 and reaching agreement on a contract , shall, at the request of Local 553, make its employees whole for any loss of benefits they may have suffered by reason of Respondent 's unlawful action and restore the wages , hours, and conditions of employment which were contained in the agreement covering all truck mechanics employed by Petroservice. (G.C. Exh. 7-b.)15 This recommendation is in accord with the order of the Board in Overnite Transportation Co., 157 NLRB 1185, enfd . 372 F.2d 765 (C.A. 4). I find such a recommendation necessary to restore the status quo. CONCLUSIONS OF LAW 1. By recognizing Local 259 as collective-bar- gaining agent for its employees in the unit found appropriate herein on February 5, 1967, and by ex- ecuting a collective-bargaining agreement with Local 259 on February 17, 1969, at a time when Local 259 did not represent an uncoerced majority of the employees in said unit, Respondent Suffolk Mack violated Section 8(a)(2) and (1) of the Act. 2. By soliciting its employees to join Local 259 and by threatening its employees that they had to join Local 259 and would be replaced by em- ployees of Minneola Mack if they did not, Respon- dent violated Section 8(a)(2) and (1) of the Act. 3. By maintaining in effect and enforcing the provisions of its contract with Local 259 relating to union security and a checkoff of dues, Respondent violated Section 8(a)(3) and (1) of the Act. 1142 " Since the agreement between Suffolk Mack and Local 259 may, ex- cept for the union-security clause and the checkoff clause which are hereby found unlawful, be more favorable in other provisions than the agreement between Local 553 and Petroservice, it is left to the option of the Charging Party to elect the terms under which the employees should continue em- ployment until final agreement is reached 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By refusing to bargain with Local 553 with respect to wages, rates of pay, hours, and other terms and conditions of employment in the unit found appropriate here at a time when Local 553 represented a majority of its employees in the unit found appropriate herein, Respondent Suffolk Mack violated Section 8(a)(5) of the Act. 5. The appropriate unit is: All truck mechanics employed by Suffolk Mack, Inc. at 1575 Patchogue Road, Port Jef- ferson, Long Island, New York, exclusive of all office clerical employees and all supervisors as defined by the Act. 6. By entering into a collective-bargaining con- tract with Respondent Suffolk Mack, Inc., when it did not represent a majority of the employees in the unit found appropriate herein and by maintaining in effect and enforcing the provisions of said contract relating to union security and by receiving and keeping dues transmitted to it by Respondent Suf- folk Mack under the terms of said contract, Respondent Local 259 caused Respondent Suffolk Mack to discriminate against its employees in viola- tion of Section 8(a)(3) and thereby violated Sec- tion 8(b)(1)(A) and (2) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER It is hereby recommended that: A. Respondent, Suffolk Mack, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Recognizing Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, or any successor thereto, as the exclusive bargaining representative of its employees with respect to wages, rates of pay, hours, or other terms and conditions of employ- ment both until it has complied with the provisions of this Recommended Order requiring it to bargain with Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America, and thereafter unless and until said Local 259 shall have been certified by the Board as the exclusive representative of its em- ployees. (b) Assisting and supporting said Local 259, or any other labor organization, by soliciting or other- wise coercing its employees to become or remain members of such labor organization. (c) Maintaining or giving effect to its contract with Local 259 executed April 17, 1969, or to any extension , renewal, or modification thereof, with respect to the recognition, union-security, and 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 , recommendations , 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 In the event checkoff clauses, provided, however, that nothing herein shall require Respondent to vary or abandon any wage, hour, seniority, or other substantive fea- ture of its relationship with its employees in the performance of such agreement unless Local 553, the Charging Party herein, shall request Respon- dent Suffolk Mack, Inc., to reinstate and maintain in effect the terms and conditions of the contract between Local 553 and Petroservice, which expired January 31, 1969, insofar as those terms apply to truck mechanics. (d) Refusing to bargain collectively with Local 553 as the exclusive representative of its employees in the unit found appropriate herein. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessa- ry to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Local 259 as the exclusive representative of any of its employees in the unit found appropriate herein both until it has complied with the provisions of this Recommended Order and unless and until such labor organization shall have been certified by the Board as the exclusive representative of said em- ployees. (b) Restore, upon request of the Charging Party, the wages, rates of pay, hours, and other terms and conditions of employment which were provided in the contract between Petroservice and Local 553 and which expired January 31, 1969. (c) Make the employees in the unit found ap- propriate herein whole for any loss of pay or other economic loss they may have suffered by reason of its unlawful action as set forth in that portion of this Decision entitled "The Remedy." (d) Jointly and severally with Respondent Local 259 reimburse employees in the unit found ap- propriate herein for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments , or other financial obligations for membership in Respondent Local 259 together with interest at the rate of 6 percent per annum. (e) Upon request bargain collectively with Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive representative of its employees in the unit found appropriate and, if understanding is reached, embody such understanding in a written agreement. (f) Post at its place of business at 1575 Patchogue Road, Port Jefferson Station, Long Island, New York, copies of the attached notices marked "Appendix A" and "Appendix B."11 Copies that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " SUFFOLK MACK, INC. 441 of said notices, on forms to be provided by the Re- gional Director for Region 29, after being signed by the respective authorized representatives of Respondents Suffolk Mack and Local 553, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 29, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." B. Respondent Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Acting as the collective-bargaining agent of any of the employees of Respondent Suffolk Mack, Inc., in the unit found appropriate herein until Respondent Suffolk Mack shall have complied with the provision of this Recommended Order requiring Suffolk Mack to bargain with Local 553, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and thereafter until it shall have been certified by the Board as the exclusive representative of such em- ployees. (b) Maintaining or giving effect to its collective- bargaining contract with Suffolk Mack, dated February 17, 1969, or entering into an extension, renewal, or modification of said contract or any su- perseding collective-bargaining agreement. (c) Causing or attempting to cause Suffolk Mack to discriminate against its employees in violation of Section 8(a)(3) of the Act. (d) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessa- ry to effectuate the policies of the Act: (a) Jointly and severally with Respondent Suf- folk Mack, Inc., reimburse all employees of Suffolk Mack who became members of Local 259 for any moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership in Local 259 together with interest thereon at the rate of 6 per- cent per annum. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records of moneys paid by the em- ployees of Suffolk Mack for initiation fees, dues, as- sessments , or other obligations of membership in Local 553. (c) Post at its offices and meeting halls in the city of New York and in Long Island, New York, copies of the attached notices marked "Appendix A" and "Appendix B."18 Copies of said notices, on forms to be provided by the Regional Director for Region 29, after being signed by a duly authorized representative of Local 259 and of Suffolk Mack, shall be posted by Local 259 immediately upon receipt thereof and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by Local 259 to insure that said notices are not al- tered, defaced, or covered by any other material. (d) Mail to the Regional Director for Region 29 signed copies of the attached notice marked "Ap- pendix B" for posting by Suffolk Mack. (e) Notify the Regional Director for Region 29, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.19 IT IS FURTHER RECOMMENDED that all allegations of the complaint not specifically found to be in violation of the Act shall be dismissed. 'T In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 29, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith '" See fn 16, supra 19 See fn 17, supra APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assist or support Local 259, In- ternational Union of Automobile, Aerospace and Agricultural Implement Workers of Amer- ica, or any other labor organization, by asking or otherwise coercing our employees to join Local 259 or to remain members of Local 259 WE WILL NOT recognize said Local 259 as the bargaining agent of our employees until we have complied with the Trial Examiner's Deci- sion requiring us to bargain with Local 553, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, unless and until Local 259 shall have been cer- tified by the National Labor Relations Board as the bargaining agent of our employees. WE WILL NOT maintain or give any effect to our contract with Local 259, dated February 17, 1969, or to any extension, renewal, or 442 DECISIONS OF NATIONAL LABOR modification of said contract with respect to the recognition , union-security, or checkoff clauses. WE WILL NOT collect any further moneys from our employees for initiation fees, dues, assessments , or other financial obligations due Local 259 for membership therein. WE WILL NOT, as to other clauses in said contract, change the wages , rates of pay, or other terms of employment unless Local 553, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, requests that we restore the terms and conditions of the bargaining contract which was in effect between Petroservice and Local 259, and which expired January 31, 1969. WE WILL make our employees whole for any loss of benefits they may have suffered by reason of our recognizing Local 259 and enter- ing into the contract with Local 259 dated February 17, 1969. WE WILL, together with Local 259, reim- burse our employees for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments , or other financial obligations required as members of Local 259, together with interest from the date of such payments at 6 percent per annum. WE WILL, upon request, bargain with Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the bargaining agent of our em- ployees in the following appropriate unit: All truck mechanics employed by Suffolk Mack, Inc., at 1575 Patchogue Road, Port Jefferson Station, Long Island, New York, exclusive of all office clerical employees and all supervisors as defined by the Act. SUFFOLK MACK, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212- 596-3535. RELATIONS BOARD APPENDIX B NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT act as the collective-bargaining agent of any of Suffolk Mack's employees until Suffolk Mack has complied with the provisions of this Decision requiring Suffolk Mack to bar- gain with Local 553, International Brother- hood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, and thereafter, unless and until Local 259 shall have been certified by the National Labor Relations Board as the collective -bargaining agent for said employees. WE WILL NOT maintain or give any effect to our collective-bargaining contract with Suffolk Mack or to enter into or enforce any exten- sion , modification , or renewal of such contract. WE WILL jointly and severally with Suffolk Mack reimburse all employees for moneys paid Local 259 by them or deducted from their earnings by Suffolk Mack for initiation fees, dues, assessments, or other obligations of membership, together with interest from the date of such payments at 6 percent per annum. WE WILL NOT cause or attempt to cause Suf- folk Mack, Inc., or any other employer , to dis- criminate against employees in violation of Section 8(a)(3) of the Act. LOCAL 259, INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (Labor Organization) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board 's Office , 16 Court Street , Fourth Floor, Brooklyn, New York 11201, Telephone 212-596- 5386.