Automotive Employees, Local 618

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Automotive, Petroleum and Allied Industries Employ- ees Union Local No. 618, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (S & R Auto Parts) and Congress of Independent Unions. Case 14-CP-163 recognition on the ground that the Employer had determined that the employees did not wish the Respondent to act for them The foregoing establishes, and we find , that despite the wording on the picket signs, organization and/or recognition was either the object or an object of the picketing at all times Operative Plasterers ' and Cement Masons' International Association, Local Union No 44, AFL-CIO (Penny Construction Company, Inc), 144 NLRB 1298, 1300 October 13, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On August 25, 1971, Trial Examiner George L. Powell issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and "suggestions in support thereof." Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case 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 Trial Examiner's Decision, the exceptions and "suggestions in support thereof," and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner, and hereby orders that the Respondent, Automotive, Petroleum and Allied Industries Employees Union Local No. 618, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. I While we agree with the Trial Examiner's conclusion that the Respondent picketed for organizational and recognitional purposes in violation of Sec 8(b)(7)(A) and (B), we do not adopt his rationale for finding the unlawful objective Rather, we note that the Respondent clearly and consistently demanded recognition as the exclusive representative of the employees from May 6 to the end of November 1970, notwithstanding its disclaimer of such objects in its letter of May 6, 1970 Further, it asked in November when it was going to get a contract, and picketing began with the area standards signs virtually immediately after the Employer refused TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE L. POWELL, Trial Examiner: Upon charges filed on May 24, 1971, amended May 28, 1971 by Congress of Independent Unions, herein called CIU, against Automo- tive, Petroleum and Allied Industries Employees Union Local No. 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Respondent, the Regional Director for Region 14 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on June 8, 1971, alleging violations of Section 8(b)(7)(A) and (B) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq ), herein called the Act. In its duly filed answer, Respondent while admitting certain allegations of the complaint denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me on June 28, 1971, in St. Louis, Missouri, where the parties were present, were represented by counsel, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to present oral argument, and to file briefs. A brief was filed by counsel for the General Counsel on July 28, 1971, and Respondent filed "Suggestions of Respon- dent" at the conclusion of the testimony. Upon consideration of the entire record, including the brief and "Suggestions" filed with me, and specifically upon my observation of each witness appearing before me,' I find, for the reasons hereinafter set forth, that the General Counsel has established by a preponderance of the evidence that Respondent violated Section 8(b)(7)(A) and (B) of the Act as enumerated in the complaint. Accordingly Respondent should cease and desist from its unlawful activities including picketing and take certain affirmative action as will be set out below in the sections entitled "Remedy" and "Order." FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE EMPLOYER S & R Auto Parts, herein called S & R, is a Missouri corporation having places of business in St. Louis County, Missouri, wherein it is engaged in the sale and distribution of automobile parts, supplies, and related products. During the year ending June 1, 1971, S & R, in its business, purchased goods and materials valued in excess of $50,000 which were transported to its places of business in Missouri directly from points located outside the State. I find S & R to be, at all times material herein, an employer engaged in I Cf Bishop and Malco Inc, 159 NLRB 1159, 1161 193 NLRB No. 112 AUTOMOTIVE commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is admitted and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. I find that Congress of Independent Unions is a labor organization within the meaning of Section 2(5) of the Act, having been certified by the Board on May 19, 1971, as the exclusive collective-bargaining representative in the unit set out below. III THE UNFAIR LABOR PRACTICES A. The Scope and Character of the Picketing By letter dated May 6, 1970, Respondent threatened to picket S & R and in December 1970 began picketing it at its two locations, 8994 Natural Bridge Road and 1324 Pennsylvania Avenue, St. Louis County, Missouri. This picketing continued until enjoined on June 22, 1971, by the United States District Court. At no time during this picketing was Respondent the collective-bargaining repre- sentative of the employees of S & R. The parties stipulated that on May 11, 1971, the Board conducted an election (Case 14-RC-6638) in a unit of all of S & R's employees excluding office employees, guards, and supervisors. Respondent knew the election was going to be held but declined to participate in it. The only union on the ballot was the CIU which received 12 votes of the 14 cast of the 17 eligible votes. CIU was then certified by the Board on May 19, 1971, as the exclusive collective-bargaining representative of the S & R employees in the aforesaid unit. Collective-bargaining negotiations between S & R and the CIU are in process. Lloyd E. Eaker, attorney for S & R, was authorized by Russell W. Nixon, president of S & R, to contact Respondent and act as his representative in the matters raised by Respondent's letter of May 6, 1970. Pursuant to this authority, Eaker called William Shackles, assistant business representative of Respondent, and they arranged to meet in Eaker's office on May 18. 1970. At this meeting, Eakers asked about the benefits Respondent had in its contract for employees. Shackles told him of the pension plan and health and welfare plan and went over the May 6, 1970, letter with him. The meeting ended with Eaker telling Shackles he would talk to his client and call back. Shackles telephoned Eaker a few times but was told in effect there was nothing to report. Around August 1, 1970, a lunch was arranged and the two met at Carl's for luncheon August 11, 1970. At this meeting the benefits to the employees and obligations of S & R was discussed with Shackles pressing for an answer stating that he did not want to picket. On from two to four later occasions Shackles called Eaker and the last time, in the latter part of November 1970, asked, "When are we going to get a contract?" Eaker told him there would be an answer in about a week. Eaker asked what he could tell S & R's employees and Shackles replied, "You know damn well what you can do!" EMPLOYEES, LOCAL 618 715 Around the first part of December Eaker called Shackles telling him that he had learned the employees did not want Respondent. Shackles replied, "At least you have given me an answer." Then the pickets appeared carrying a picket sign with the following wording: S & R AUTO PARTS THIS EMPLOYER is UNFAIR WAGE RATES, CONDITIONS AND BENEFITS FOR EMPLOYERS DOING SAME OR SIMILAR WORK BELOW STANDARDS ESTABLISHED IN CONTRACTS BETWEEN THIS UNION AND OTHER LIKE EMPLOYERS, THREATEN JOB SECURITY AND ECONOMIC STATUS OF UNION MEMBERS. HELP MAINTAIN DECENT WAGES AND BENEFITS BY PATRONIZING EMPLOYERS WHO MAINTAIN UNION STANDARDS. TEAMSTERS LOCAL NO. 618 The above is from stipulations of the parties, admissions by Respondent, and credited testimony by Eaker. B. The Meeting of Employees On Sunday, December 13, 1970, employees of S & R who were not at work met at the home of employee Mike Martin to settle the picket problem. Martin had invited Shackles to -attend and when employee Robert A. Miller heard of this he invited Clark H. Libhart, national executive vice president of the CIU. Libhart and Shackles came at different times of the day. Libhart was first and he told the employees of what his union had done for others. Shackles, in his turn, explained he was not the bargaining agent, not trying to organize the employees, but was there only to explain what his union had done. He explained the benefits gained by Local 618, the area coverage, size of local, who called strikes, how many attended union meetings, what local economics were involved, and whether supervisors could join Local 618. Miller asked him if he could give Shackles an answer by January 1, 1971, and asked, if S & R employees would join Local 618 would Shackles remove the pickets. Shackles answered that the pickets would be removed after the standards met their contract. He handed out two or three contract copies and gave a majority of those present a copy of Respondent's new automotive agreement. C. Comparison Nixon credibly testified that no one from Respondent 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever asked him about wages. He had never met Shackles but turned Shackles' May 6, 1970, letter over to Eaker for handling. After receipt of the letter, however, Nixon got copies of Local 618 contracts and compared them with his wages and benefits and found his comparable. The conclusionary language in the complaint is that by the picketing described above Respondent sought to force and require S & R employees to accept Respondent as their collective-bargaining representative and sought to force or require S & R to recognize and bargain with Respondent as collective-bargaining representative of the employees of S & R. As this was done after May 1971, at a time when CIU was lawfully being recognized as the exclusive collective- bargaining representative and no question concerning representation of such employees could be raised under Section 9(c) of the Act, and as the picketing activity was being engaged in within 12 months of a valid election, the Respondent violated Section 8(b)(7)(A) and (B) of the Act.2 The Respondent denied the conclusionary allegation and denied the object of the picketing was to force or require S & R to recognize and bargain with it as representative of S & R's employees or force or recognize the employees of S & R to accept or select it as their collective-bargaining representative. Respondent disclaims the above illegal object as set forth in its letter to Russ Nixon of S & R on May 6, 1970. The letter states, Dear Mr. Nixon. It has undoubtedly come to your attention that our Union has for time to time attempted to interest your employees in membership in our Union. Up to this time, they have not joined. That, of course, is their right. However, it is our understanding that their wages and conditions of employment are below those which we have established and are attempting to establish in this area for similar type of work performed by companies engaged in a business such as yours. For example, our standard contract for this type of work requires, among other things, wages to be paid at the rate of time and one-half for over 8 hours per day, or over 40 hours per week, employer-paid sick and accident insurance, hospitalization insurance, life insurance, pensions, a guarantee of 40 hours per week, $3.14 to $3.50 per hour, one week of vacation with pay after one year of employment, two weeks vacation with pay after three years of employment and three weeks vacation with pay after fifteen years of employment, 7 paid holidays, and a five-day work week. If you desire any further information with respect to such other matters, we shall be pleased to supply it on request. As a matter of simple economics, it is clear that we cannot maintain our present Union standards or improve them as long as there are employees in our Industry who are receiving less. Therefore, unless you are willing to meet the Union standards in the treatment 2 Section 8(b)(7)(A) and (B) makes it an unfair labor practice for a labor organization to picket or threaten to picket as follows (7) to picket or cause to be picketed , or threaten to he picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative , unless such labor organization is currently of your employees, we shall have no choice but to publicize the fact that such employees are working for wages which are less than, and under conditions which are inferior to, Union wages and conditions, and that such situation jeopardizes the maintenance of our standards. This publicity will be in such manner and by such means as is permitted by law. However, we desire to make it perfectly clear that in writing to you we are not suggesting in any way that you coerce or interfere with your employees in their right to join a Union or not to join a Union. That choice, either way, is theirs alone. Nor are we requesting you to negotiate with us or to enter into a collective bargaining agreement with us. We are merely advising you of the situation and what we propose to do in the event it continues. We are similarly advising your employees by providing them with copies of this letter. If we do not hear from you within the next ten (10) days, we shall assume that you have decided not to meet our Union standards. Enclosed you will find a copy of the instructions which will be issued to any person authorized to picket on behalf of our Union. If there should be any violations, please report them to the Union promptly, and remedial action will be taken immediately. Very truly yours, William H. Shackles, Asst. Business Representative TEAMSTERS LOCAL NO. 618 INSTRUCTIONS TO PICKETS You are being employed by Teamsters Local 618 to perform picket duty at the premises of S & R Auto Parts Company, 8994 Natural Bridge. You are directed to strictly comply with the following instructions: 1. Walk the full length of the public street adjacent to the premises of the Company. Do not trespass on private property. 2 Display the picket sign so that it can be clearly observed. 3 Pass out the handbills to persons entering or leaving the Company's premises. Do not permit the sidewalk to become littered by discarded handbills. 4. Do not block exits or entrances. Hold no conversations with anyone. Refer all questions to the Union's business agent. 5. Do not record any license numbers or take any photographs. Do not urge anyone to refrain from entering the premises certified as the representative of such employees (A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under Section 9(c) of this Act, or (B) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted AUTOMOTIVE EMPLOYEES, LOCAL 618 717 6. The possession or consumption of alcohol- ic beverages while on duty is prohibited. Your authority is limited to the above TEAMSTERS LOCAL 618 D. Concluding Findings The opening paragraph of Respondent's letter of May 6, 1970, states that ". . . our Union has from time to time attempted to interest your employees in membership in our Union. Up to this time, they have not joined." The next to last paragraph states, "However, we ... are not suggesting in any way that you coerce or interfere with your employees in their right to join . Nor are we requesting you to negotiate with us or to enter into a collective-bargaining agreement with us. We are merely advising you of the situation and what we propose to do in the event it continues. We are similarly advising your employees by providing them with copies of this letter." Then came the picket line As the letter suggested Respondent's interest in the employees and as it is unnecessary to tell the employees what they were going to do if the union contract terms were not met, I conclude the Respondent wanted them to know, in effect, that only by a complete capitulation to the Respondent's demands would the picket line be removed A complete capitulation is to have Respondent as the representative of the employees and to have a collective- bargaining agreement with S & R. In no other way could there be certainty that the "union standards" of Respondent would ever be met by an S & R collective-bargaining agreement Also when Shackles attended and answered questions about Respondent at the employees' meeting, he was attempting to interest them in joining his union. He knew that unions need membership to exist and that idealistic conditions in the industry do not pay their way. Trial Examiner William E. Spencer found that disclaim- ers of union interest do not prevail against the intent and effect of the actions themselves Judge Spencer said, "The label on a bottle and its contents are not always congruous: poison in a bottle is not rendered harmless merely because the label declares it harmless."3 Finally, Shackles admitted in a telephone conversation with Eaker in November 1970 that he was interested in a contract with S & R by asking the question, "When are we going to get a contract?" The Board found in Centralia, supra, that despite disclaimers by the Union there the Union was interested in a collective-bargaining agreement with Pacific and interest- ed in representing Pacific's employees because: (1) The Union made no substantial effort to ascertain Pacific's actual wage or employment standards before instituting its picketing (I find the same is true in the instant case), and (2) despite the disclaimers contained in the covering letter, enforcement of the agreement itself, the object of the picketing, would in effect bind Pacific in the matter of wages and fringe benefits to the terms of a collective agreement negotiated by the Union and other employers . not only as of the date the instrument was executed but infuturo. With such an agreement in effect, very little would be left in the field of collective bargaining to a representa- J Centralia Building & Construction Trades Council and Pacific Sign and Steel Building Company, inc, 155 NLRB 803 (The Board adopted the tive chosen by Pacific's employees, and therefore the will and choice of employees when and if exerted with respect to a bargaining agent would be thwarted and nullified. Accordingly, the Board found the freedom of employees to make their own choice in such matters cannot lawfully be foreclosed in this manner. Nor can disclaimers prevail against intent and effect of action. The same reasoning applies to this case. For these same reasons I am compelled to reject the position of Respondent's counsel and find, as alleged in the complaint, that in its picketing of S & R described above, the Respondent violated Section 8(b)(7)(A) and (B) of the Act because an object of the picketing was to require the employer to recognize and bargain with Respondent or requiring employees to accept Respondent as their collective-bargaining representive where (a) the employer was lawfully recognizing the CIU and (b) a valid election had been held under Section 9(c) of the Act within the preceding 12 months. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. CONCLUSIONS OF LAW 1 The Respondent is a labor organization within the meaning of Section 2(5) of the Act 2. CIU is a labor organization within the meaning of Section 2(5) of the Act. 3. S & R is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 4. All employees of S & R, excluding office employees, guards, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. A valid election was held on May 11, 1971, within the appropriate unit. 6. CIU was on May 19, 1971, and at all times thereafter the certified exclusive collective-bargaining representative of S & R employees in the appropriate unit, within the meaning of Section 9(a) of the Act. 7. By picketing after May 19, 1971, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(7)(A) and (B) of the Act. Decision of Judge Spencer on November 15, 1965 ) 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 4 APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ORDER Automotive, Petroleum and Allied Industries Employees Union Local No. 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, successors, and assigns, shall: 1. Cease and desist from' (a) Picketing or causing to be picketed, or threaten to picket or cause to be picketed, S & R Auto Parts where an object thereof is forcing or requiring S & R Auto Parts to recognize or bargain with it as the representative of the employees of S & R Auto Parts, or forcing or requiring the employees of S & R Auto Parts to accept or select it as their collective-bargaining representative, unless it is currently certified or the representative of such employees: I) where S & R Auto Parts has lawfully recognized Congress of Independent Unions, or any other labor organization, and a question concerning representation may not appropriately be raised under Section 9(c) of the Act, or 2) where within the preceding 12 months a valid election under Section 9(c) of the Act has been conducted. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its place of business in St. Louis, Missouri, and at the places of business of S & R Auto Parts (it being willing) in St. Louis, Missouri, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 14, shall, after being signed by the Respondent's representative, be posted by the Respondent 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 Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.6 I 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 10248 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 5 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED WE WILL NOT picket or cause to be picketed S & R Auto Parts with an object of requiring S & R Auto Parts to recognize or bargain with us as the representative of its employees or of forcing their employees to accept or select us as their collective-bargaining representative unless we are currently certified as the representative of such employees: A) Where S & R Auto Parts has lawfully recognized Congress of Independent Unions, or any other labor organization, and no question concerning representation may be appropriately raised, or B) Where within the preceding 12 months a valid election has been conducted by the Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees of S & R Auto Parts in the exercise of their nght to self-organization, to form, join, or assist the Congress of Independent Unions, or any labor organization, to bargain collec- tively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. AUTOMOTIVE, PETROLEUM AND ALLIED INDUSTRIES EMPLOYEES UNION LOCAL No. 618, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (S & R AUTO PARTS) (Labor Organization) Dated By (Representative ) (Title This is an official notice and must not be defaced by anyone. BY ORDER OF THE NATIONAL 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" b In the event that this recommended Order is adopted by the Board after exceptions have been filed, notify said Regional Director , in writing, within 10 days from the date of this order, what steps Respondent has taken to comply herewith. ALLIED INDUSTRIES EMPLOYEES, LOCAL 618 719 This Notice must remain posted for 60 consecutive days Any questions concerning this Notice or compliance with from the date of posting and must not be altered, defaced , its provisions, may be directed to the Board's Office, 210 or covered by any other material North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167.