Douglas Oil Co.

308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Douglas Oil Company and International Brotherhood of Service Station Operators of America, Petition- er Powerline Oil Company and International Brother- hood of Service Station Operators of America, Petitioner Powerful Gas Nos. 1 and 2 and International Brotherhood of Service Station Operators of America, Petitioner. Cases 20-RC-9485, 20-RC-9673, and 20-RC-8879 June 7, 1972 DECISION AND ORDER RESCINDING CERTIFICATION BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, in Cases 20-RC-9485 and 20-RC-9673, a hearing was held before Hearing Officer John L. Anderson of the National Labor Relations Board on September 22, October 1, November 5 and 17, and December 9, 28, 29, and 30, 1970. In Case 20-RC-8879 upon a Motion to Revoke Certification duly filed, a hearing was held before Hearing Officer David S. Sargent of the National Labor Relations Board on July 16 and August 22, 1969. The Hearing Officers' rulings at these hearings are free from prejudicial error and are hereby affirmed. Thereafter, the Board, by order dated June 30, 1971, ordered that the three cases be consolidated for further hearing, that the cases be remanded to the ,Regional Director for Region 20, and that the record be reopened and a further hearing held. Thereafter, a hearing in these consoli- dated cases was held on August 10, 23, 24, and 25, and September 16, 1971, before Hearing Officers John L. Anderson and J. Mark Montobbio.1 The Hearing Officers' rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in these cases, the Board finds: 1. The Employers are engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. No question affecting commerce exists con- ' That portion of the hearing held on September 16, 1971, was conducted by Hearing Officer J Mark Montobbio cerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. The record indicates that the Petitioner has on several occasions participated in Board proceedings as a labor organization and, pursuant thereto, has on several occasions purportedly participated in the process of collective bargaining. Notwithstanding this fact, the Employers herein contend, among other things, that the Petitioner is not a labor organization; that it is primarily used to represent those who are or would be employers competing with the Employers herein; that, as representative of several of these employers, Petitioner has conducted itself in a manner creating conflicts of interest with the Employers herein; and that it has otherwise conduct- ed its affairs in such a manner as to raise questions as to its ability to represent employees as a collective- bargaining representative. After a careful review of the record in the first hearings in 1970, the Board concluded that it could not resolve these issues based on the record then before it. In that record, it was clear that service station owners or operators, who would otherwise be considered employers under the Act, were cofound- ers of and served as the principal officers of the Petitioner. In addition, that record also lends support to the Employers' claim that the Petitioner was in fact acting as an employer representative and that it was conducting its affairs in a manner that might very well have indicated a conflict of interest. At the same time, the testimony of the Petitioner's principal officer, Charles Morley, who represented the Peti- tioner, basically consisted of broad generalities, vagueness on specific points, and a certain degree of a lack of candor. To resolve these issues, the Board, as noted above, ordered the three cases consolidated and remanded for a further hearing, requesting, inter alia, testimony relating to the "current organizational and membership structure of the Petitioner, includ- ing the identity of its officers and representatives as evidenced by properly authenticated official docu- ments of the Petitioner." The Board also requested testimony regarding the Petitioner's relationship with its members who are independent dealers. The record in the remanded hearing reveals an even greater lack of candor by the Petitioner. It is replete with broad generalities and is often vague as to specific matters which would be within the special knowledge of the Petitioner. In many instances, the testimony of Petitioner's witnesses bordered on the incredible. Charles Morley, Petitioner's 'representa- tive, testified at length as to the membership rolls, the dues, and the regular membership meetings. The 197 NLRB No. 42 DOUGLAS OIL COMPANY testimony as to the size of the membership, however, varied from as many as several thousand to a low of 946 dues-paying members, with several different figures being stated at different times during the hearing.2 As to the officers of the organization, Morley testified that various people occupied various positions at different times, but when their duties and functions were brought into question, these individu- als seemed to have resigned or gone elsewhere with some other person being appointed to fill the position.3 The only internal union election ever referred to was the original organizational meeting in 1967 wherein the Petitioner's organization was purportedly established and bylaws adopted. Pur- suant to the bylaws, the next scheduled, and apparently the first, election of officers in which members could or would participate was to be held in November 1972, some 5 years after Petitioner's creation. In our remand, as noted above, the evidence sought by the Board was to be established by "properly authenticated documents." On this point, the docu- mentary evidence totally fails to support in any way Morley's testimony regarding the Petitioner's struc- ture. On August 10, 1971, the first day of the remanded hearing, Morley submitted a paper con- taining various names and official titles signed by David Albiar, as president, and dated August 9, 1971, purporting to be an "official document" showing the Petitioner hierarchy. This document was not an official document of the Petitioner but rather nothing more than a self-serving declaration prepared the day before the hearing for the Petitioner's benefit. Again through Morley, the Petitioner intro- duced 13 exhibits purporting to be the minutes of the executive board meetings. A cursory review of these documents shows clearly that many of them were recently typed and signed, obviously for purposes of this hearing. This factor becomes even more signifi- cant when viewed in the light of Morley's testimony that the Petitioner's bylaws were revised at the executive board meeting on March 21, 1971. A visual examination of the "minutes" of that meeting shows that three different typewriters were used, a fact in direct conflict with Albiar's testimony that when the 2 Morley testified that on various occasions memos and other union news items were mailed to members and yet no such documents were offered into evidence 3 The testimony shows that of the "appointed" trustees Silva is employed by David Albiar , Petitioner's president, and Storey is a manager of a "Thrifty" gas station. 4 Other testimony raises even further question as to the integrity of the "minutes " At one point Albiar testified as follows. Q He [Shanks ] sat down at the typewriter and wrote them out after the meeting, [March 21, 1971 ] is that correct'? A. Then he left Q After you signed them, he left'? A I signed them before he made them out Q You signed them before he made them out? 309 minutes were typed by Shanks, he "did not jump around from typewriter to typewriter" and that Albiar watched him type the minutes and then signed them after he was finished.4 Turning to the question of the bylaws, Morley testified that the revisions, purportedly adopted on March 21, 1971, did not involve any substantial changes. Yet a comparison of the bylaws introduced at the original hearing with those introduced at the remanded hearing shows that the revisions were far more than `just cleaning them up" or "correcting typographical errors." In fact, there are substantial changes in almost every section of the revised constitution and bylaws. Article III adds the executive board; article V, "Eligibility of Membership," starts with the following "Any competent lease operator of a service station" while the revised text starts with "Any competent employee of a service station . . "• article VI adds the right to suspend members; article VII, "Rights of Members," adds a limitation if "expressly prohibited" elsewhere, article VIII, "Membership Meetings," contains several deletions from the original and changes the requirement to call special meetings from a request from 75 members of a local to a request from 75 percent of the local's membership, article IX, "Dues," etc., again involves several changes including changing the fixed dues of $9.50 per month to a dues figure to be set by the local "but not to exceed $9.50 a month"; article XII gives Morley, as secretary-treasurer, the authority to fill any vacancy on the executive board by appointment for the duration of the unexpired term, a power not contained in the original bylaws. We have dealt at length with this one subject, because of the Employers' contentions that this organization was created, designed, and put into operation by Morley for his own personal gain and interest, and that it is nothing more than whatever Morley wanted it to be at any given time. That these contentions have some substance is supported by the fact that the "cleaned-up" constitution and bylaws, including the very many substantial revisions, addi- tions, and deletions, appear to have been adopted in a manner totally inconsistent with, and without any A. Yes-no I signed them- Q Did you sign them before or after they were typed up'? A After they were typed up. Albiar also testified on August 24, 1971, that the executive board meeting of the month before (July 1971) was the first meeting he could recall that Shanks attended , testimony directly in conflict with that quoted above. Again, reversing himself, Albiar later testified that Petitioner's Exh 7, purporting to be a document authenticating the certification of the constitution, was signed by all parties (including Shanks) in his presence on March 21, 1971 On December 30, 1970, Morley testified that Attorney Max Garrick had not yet sat in on executive board meetings while the minutes of the September 25, 1970, meeting recite that he was present and voting, with Morley also in attendance. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regard to, that section of the constitution relating to amendments to the constitution itself. In addition to the above factors, the record shows the following conduct which has a direct bearing on the issues before the Board: 1. President Albiar, while president of the Peti- tioner, entered into a collective-bargaining contract with the Petitioner as an employer. Moreover in 1967, after the Petitioner was founded, Morley signed a contract on behalf of the Petitioner while Petitioner's then president, Helm, signed for the employer. 2. On December 30, 1970, at the first hearing, Morley testified that the list of locals (Petitioner's Exh. 3) listing some 44 numbered locals was compiled by the "girl in the office" from "the files at hand," whereas at various other points in his testimony, Morley, on cross-examination, admitted that there were no locals designated and further admitted that there have been no local membership meetings.5 At the first hearing, Morley testified to various regional meetings as provided for in the constitution, yet at the second hearing, Morley admitted that there had been no regional meetings but that Morley, in making his rounds, would get together with members in the area where he was. At another point, Morley testified that the "Locals" were represented by shop stewards and area repre- sentatives, but again none of these individuals were either identified or called as witnesses for the Petitioner. 3. On or about February 15, 1970, Morley wrote Mr. Ted Orden, an official of the Powerful-Thrifty stations as follows: Dear Ted: Enclosed are contracts for your units. Please sign and return to me. As you know the Standard Oil group has already petitioned Bernie Roth, and they are probably signing up your crew at this time. I believe the International Brotherhood of Service Station Operators will beat out the Standard crew here in the east bay, but they could nail you in the south. If you sign now with our union, you will not be required to deal with the Standard union at all as we will be legal bargaining agents at all your stations with the exception of the two in the east bay (pending the outcome of the upcoming elections). Please do not hesitate in signing the contracts. When you return them to me, we can get together and work out the details. [Emphasis supplied.] 5 Again, the testimony is in direct conflict with the "minutes" of the executive board meetings On at least two occasions, specific locals were designated with temporary officers being named In addition, Morley Time is of the essence. If you won't sign with us, I cannot guarantee we can help when Standard hits your southern California operations. Once they file for a petition with the NLRB covering your entire operations, at best we can intervene as we did up here, but your position would be much weaker in southern California. If you are signed with us, no other union can touch your operations. [Emphasis supplied.] On February 26, 1970, Morley again wrote Orden as follows: Dear Ted: Bernie mentioned you and he would be up here next week. I have enclosed a contract for your upcoming Broadway unit. Please sign it now, and it will avoid any problems for you. That unit is next to a Chevron, so you may rest assured the Standard group will be right on top of you. With the enclosed signed, they cannot touch you. We can go over the various points of the contract when you are up here next week. [Emphasis supplied.] Encl: P.S. Please sign and return one copy to me. We can make any amendments necessary . . . . [Em- phasis supplied.] While the Petitioner was, at the time, representative of employees at some of the Powerful-Thrifty gas stations, the obvious import of the above correspond- ence is that the Petitioner was attempting to either extend its coverage to unrepresented stations without giving the employees their right to a self-determina- tion election or to enter into a premature contract in an effort to forestall organizing campaigns by other unions which were apparently organizing service station employees in the area. 4. With regard to the Employers' contentions that the Petitioner is an organization composed of various and sundry individuals selected by Morley at any given time, it is clear that Morley, or some other individual within the Petitioner's internal structure, is not above adding the names of individuals to the Petitioner's internal structure if it appears that such addition would work to the advantage of the Petitioner and/or its controlling official. Franklin K. Lane, the Petitioner's trial counsel at the second hearing, vehemently denied that he was involved with the Petitioner in any way during 1970, stating to the Intervenor's counsel "That's absolutely a lie." testified with regard to several hundred members covered by the Petitioner's contracts with Unch Oil Co., and yet no "Local" was established and apparently there have been no "meetings " of this group of "members." DOUGLAS OIL COMPANY The record in the first hearing, however, clearly shows that Morley testified to several purported contacts with Mr. Lane and as early as November 1970 had listed Mr. Lane, apparently without his consent, as the Petitioner's "General Counsel" on its stationery.6 5. At the second hearing, facts were adduced showing that the Petitioner leases a 1971 Lincoln Continental from Wittier Car Leasing & Rental Co. of Los Angles. Morley testified that the rental of $215.44 per month was paid by the Petitioner with checks drawn against the Petitioner's checking account and that, as of September 16, 1971, all of the payments had been made. When requested to produce the checks, the Petitioner refused to honor the subpena, contending the checks were not documents covered by the subpena. Albiar testified that it was his understanding that the Petitioner had purchased the Lincoln, and that although he was supposed to cosign the Petitioner's checks, he did not recall ever signing any checks for the payment of any rental of the leased Lincoln. At the same time, the parties stipulated that the lessor, Wittier Car Leasing & Rental Co., is owned by Urich Lincoln-Mercury, an automobile agency which in turn is owned by Jack Urich who is president of Urich Oil Company, which, among other Urich corporations, has collec- tive-bargaining agreements with the Petitioner. In McDonald's of Canoga Park, Calif., Inc., 162 NLRB 367, the Board restated the principle that "collective bargaining is a two way proposition .. . the union `must be there with the single-minded purpose of protecting and advancing the interests of the employees who have selected it as their bargain- ing agent, and there must be no ulterior purpose.' " 6 A similar incident involved another attorney, Maxwell Keith, who was listed as "Anti-Trust Counsel," and who, upon discovering this, vigorously complained and demanded a retraction 7 While the Board does not normally make credibility resolutions in 311 As in McDonald's, the facts here create a substantial doubt as to whether the Petitioner does act or is competent to act as an employee bargaining repre- sentative in accordance with that standard. Again, as in McDonald's, the record clearly shows that the Petitioner, by reason of its conduct at the hearing, has precluded the Board from resolving that. doubt. The Petitioner had the opportunity afforded by two full hearings to present documentary evidence and credible testimony to dispel this doubt. To the contrary, the Petitioner's conduct at the second hearing, including testimony which we find to be totally lacking in candor and, in many instances, totally incredible 7 compels us to conclude that the Petitioner is in reality something other than a collective-bargaining representative. Accordingly, we shall dismiss the petitions in Cases 20-RC-9485 and 20-RC-9673 and we shall revoke the certification heretofore issued in Case 20-RC-8879. ORDER Upon the basis of the above finding of fact and the entire record in these cases, the National Labor Relations Board hereby orders that the petitions in Cases 20-RC-9485 and 20-RC-9673 be, and they hereby are, dismissed. IT IS FURTHER ORDERED that the certification issued in Case 20-RC-8879 to the International Brother- hood of Service Station Operators of America, as the collective-bargaining representative of the service station employees of Powerful Gas No. 1 and Powerful Gas No. 2 of California be, and it hereby is, revoked. nonadversary proceedings , the Board has, where no other result could be justified, found testimony in such proceedings incredible Supreme, Victory and Deluxe Cab Companies, 160 NLRB 140, 145